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Tuesday, September 23, 2003

The Patriot Act: Balancing our safety and our civil liberties

"Don't deny government useful anti-terror tools"
USA Today editorial, posted here in its entirety:
The second anniversary of the Sept. 11, 2001, attacks seemed the perfect occasion for President Bush to ask Congress for expanded anti-terror investigative powers. Yet the response was downright chilly.

Republican leaders in Congress said they would hold lengthy hearings to assess the plan's impact on individual rights. Meanwhile, civil liberties groups accused the administration of ramming an expansion of the controversial USA Patriot Act through Congress with the same haste lawmakers showed in passing the original law in the wake of 9/11.

For all of the furor stirred up by the administration's request, two reassuring facts have been overlooked: Not only does the federal government have a history of using the same powers responsibly, but tools exist to ensure that anti-terror investigations are conducted properly.

The combination of past experience and mandated protections highlights a relatively risk-free way for Congress to test whether expanding the Patriot Act can aid the government's anti-terrorism efforts without endangering civil liberties.


•Precedent. A key new provision in what is being dubbed Patriot Act II — expanded subpoena power — is currently used in 300 other types of law enforcement investigations, from medical fraud to illegal dumping of toxic waste. And it has not prompted widespread allegations of civil rights abuses.

In fact, the administrative subpoenas proposed by the Justice Department currently are issued by virtually every federal agency. They are especially common in obtaining hospital records in cases when a doctor is suspected of overbilling Medicare.

Department officials in these cases can approve their own "administrative subpoena" rather than get a traditional subpoena from a judge or grand jury.

By giving Justice Department investigators similar authority, the government would be able to pursue terrorist suspects even at night and on weekends, when getting a judge's approval can be time-consuming. For example, if the FBI gets a tip that a terrorist suspect is in a certain location, it could issue its own subpoena to access the airline, rental-car and hotel records potentially helpful in tracking down the suspect.

•Protection. To guard against abuse in anti-terror cases, the administration has included a safeguard: Any recipient of a subpoena who feels it may be unjustified is entitled to demand a judge's approval.

But an additional common-sense way exists to protect against government abuse of expanded powers. In 2001, the Patriot Act gave federal investigators broad authority to track suspected terrorists. This included access to an individual's library records, bookstore purchases or Internet usage with just the permission of a special terrorism court.

To protect against overly aggressive investigators, Congress insisted on accountability provisions. The most powerful: a four-year sunset provision under which parts of the Patriot Act will automatically expire unless renewed by lawmakers. It gives Congress time to judge whether the law is being used properly and deserves to be extended.

Similar safeguards would allow Congress to test whether civil liberties are violated under an expansion of the Patriot Act. Even so, critics argue that the new subpoena power would let federal agents go on fishing expeditions that violate constitutional protections against unreasonable searches.

Opponents of the legislation predict that once the Justice Department is allowed to bypass court authorization, it would blanket the nation's libraries and bookstores with demands to know about persons interested in, say, books advocating radical Islam.

To a large extent, critics are letting emotional arguments trump factual ones. But the administration has only hurt its cause by mocking detractors instead of addressing their legitimate concerns.

As recently as last week, Attorney General John Ashcroft ridiculed librarians for "baseless hysteria" over whether agents would be poring over library records. The Justice Department also dragged its feet in reporting to Congress on its use of the Patriot Act until being pressured by lawmakers.

Instead of ridiculing critics, the Justice Department should stick to the facts. In spite of some predictions that the government would use the Patriot Act to invade the privacy of law-abiding citizens, Justice officials disclosed last week that they have yet to track anyone's library or bookstore activity.

Such reassurance is due in large part to the fact that Congress has demanded updates on the Patriot Act, which Justice has provided to intelligence committees.

Rather than deny anti-terrorism investigators additional tools that are widely used to combat lesser crimes, Congress could build on its Patriot Act successes. Temporarily offering the administration the new powers it wants in exchange for close congressional monitoring won't cure the Justice Department's cavalier attitude. But it's the best way to assist terror investigations while providing the public with assurances that their civil liberties won't be exploited.

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The USA Patriot Act was enacted six weeks after the Sept. 11, 2001, attacks. It broadens law enforcement agencies' authority to conduct surveillance on U.S. citizens and residents. Some provisions expire in 2005, unless renewed by Congress. Others are permanent.

The Justice Department says that since the act was passed:

*Hundreds of suspected terrorists have been identified and tracked in the USA.

*Anti-terrorism investigations and intelligence sources have doubled.

*More than 18,000 subpoenas and search warrants have been issued.

*More than 100 individuals have been convicted of or pleaded guilty to federal crimes.

*In 2002, more than 1,000 international terrorists suspected of threatening national security have been targeted by U.S. law enforcement authorities.

*More than 1,000 FBI agents have been assigned to counterterrorism and counterintelligence. Staffing of joint terrorism task forces has increased 337%..