CONGRESS PASSED the USA Patriot Act in haste after the Sept. 11, 2001, attacks. Critics predicted that the act would deal a blow to liberty, while proponents insisted it was essential to the fight against al Qaeda. A wise compromise gave the administration new powers but had them expire at the end of 2005, giving Congress a chance to take a second look. Consequently, various congressional committees are considering whether the Patriot Act should be reauthorized, rolled back or expanded -- and whether this time it should be made permanent, as the administration wishes, or renewed only temporarily.
Although the Patriot Act has become a catch phrase for civil liberties anxieties, it in fact has little connection to the most serious infringements on civil liberties in the war on terrorism. It has nothing to do with the detention of Americans as enemy combatants, the abuse of prisoners captured abroad or the roundup of foreigners for minor immigration violations. The law's key sections were designed to expand investigative powers in national security cases and permit more information-sharing between intelligence and law enforcement agencies. These have sparked controversy more because of abuses they might permit than because of anything that is known to have happened. Indeed, there is little evidence of abuse -- and considerable evidence that the law has facilitated needed cooperation. Based on what's known, it merits reauthorization with minor modifications.
But first more ought to be known. Far from regularly releasing information about its use of the law, the administration has generally hidden even basic information -- only to release it when politically convenient. Neither in the Patriot Act nor in the surveillance statute it amended did Congress require the sort of routine public reporting that would offer Americans a useful ongoing sense of the law in operation. And while the administration has, in recent months, released a good deal of information to support its request for reauthorization, the public still lacks a full picture. Before reauthorizing the Patriot Act, Congress needs to demand and release sufficient information. And in revising the law, Congress should make it more transparent, so the public is not at the mercy of the administration's sense of openness.
Nor should reauthorization be permanent. Knowing it had to return to Congress for reauthorization was one of the few incentives for the administration to release information; it's useful to maintain that incentive. And it's not overly burdensome to ask the executive branch to periodically justify its need for such powerful investigative tools.
Finally, the Senate intelligence committee has included as part of its reauthorization package a broad authority for the FBI to collect information from businesses in intelligence matters using an administrative subpoena the FBI can issue on its own. This should not become law. Administrative subpoenas make sense in regulatory matters and have made their way into certain criminal and security investigations. But the Justice Department already can get the records it needs using the traditional, wide-ranging investigative powers of the grand jury or another provision of the Patriot Act. Administrative subpoenas are more secretive than grand jury subpoenas, and they involve less scrutiny from prosecutors; they strip away a layer of oversight. The administration may well make a persuasive case for Patriot Act renewal, with increased oversight. But this particular power should not be granted.