WHEN CONGRESS returns, an early order of business will be a conference committee to reauthorize key provisions of the USA Patriot Act. Both houses of Congress have passed bills similar in broad strokes. Both bills would give the administration what it most wants, reauthorizing permanently key law-enforcement and intelligence provisions that were enacted temporarily in the original law and are set to expire at the end of the year. Both, however, would also impose certain restrictions on the two most controversial provisions, which they would renew once again with a "sunset" provision. Both would tinker with the FBI's authority to issue administrative subpoenas known as "national security letters," injecting important procedural clarifications into the process. And both houses refrained from giving the bureau sweeping powers to issue administrative demands for documents. The bills would also require reporting by the administration on its use of Patriot Act provisions.
In key respects, however, the Senate bill is much preferable to the version passed by the House of Representatives. It retains sunset provisions for two additional non-Patriot Act authorities made permanent in the House bill -- ones that warrant watching over time. It also contains stronger civil-liberties protections in a couple of areas. While both bills somewhat limit the authority of the government to seek business records in national security cases by order of a special court, for example, the Senate requires a stronger showing of those records' relevance to counterterrorism. And it also defines a considerably shorter period during which federal authorities can delay notice of the execution of search warrants to the targets of certain secret searches.
Most important, however, is what the Senate bill lacks: dozens of completely extraneous add-ons that have only the most marginal connections to the bill's purpose. The House bill would enact new law on cigarette smuggling, expand federal wiretapping authorities and the federal death penalty to a host of new terrorism crimes, authorize funding for first responders, make it easier to subject those convicted of terrorism crimes to being monitored for life following their release, and criminalize a host of activities related to seaports and transporting terrorists and hazardous materials. Some of these might be good ideas; some are likely to prove dreadful. None belong in this bill, which is the result of a serious legislative examination of the administration's needs in the domestic security arena relative to what the Patriot Act provided. Reconciling the House and Senate bills would be far easier were there no risk of the final product's being larded with irrelevant unknowns.