Legal Bytes:  The USA Patriot Act Revisited
         by John Brewer   June 2005

       In 2001, Congress passed and the President approved the USA Patriot Act. The Patriot Act gives law enforcement broad powers that are targeted for the “war on terror.” It actuality, it goes far beyond that purpose.
       It is reported that approximately 10% of the Act “sunsets” in 2005 unless Congress extends those provisions. A sunset provision in a law means that a provision “expires” on a date certain unless the legislative body extends the date of the provision.
       One aspect of the new Patriot Act legislation is a hot topic. That topic concerns expanded authority to use administrative subpoenas. Search warrants are normally issued by courts after a showing that the warrant is justified. However, a number of agencies also have administrative subpoena power. Administrative subpoenas are similar in effect to search warrants and do not require court oversight.
       A recent article in the San Francisco Chronicle reports that “the Bush administration and Senate Republican leaders are pushing a plan that would significantly expand the FBI's power to demand business records in terror-related investigations without obtaining approval from a judge, The proposal, which is likely to be considered next week in a closed-door meeting of the Senate Intelligence Committee, would allow federal investigators to subpoena records from businesses and other institutions without a judge's approval if the investigators themselves declare that the material is needed as part of a foreign intelligence investigation. The proposal, part of a broader plan to extend anti-terrorism powers under the law known as the USA Patriot Act, was formulated in recent days by Republican leaders on the Senate Intelligence Committee in consultation with the Bush administration, congressional officials said.”
       The proposal has also generated some concern from other members of the US Senate who do not sit on the Senate Intelligence Committee. “Support for the idea among many Democrats and some Republicans in Congress is uncertain, and the Senate Intelligence Committee's plan to push the proposal could set off a struggle with the Senate Judiciary Committee. The Judiciary Committee has joint authority for oversight of foreign intelligence surveillance law -- which would be expanded under the current proposal -- but its members have shown some reluctance to expand the FBI's counterterrorism powers.
       A Judiciary Committee aide said that Sen. Arlen Specter, R-Pa., who leads the Judiciary Committee, wanted to study the Intelligence Committee's proposal closely to determine whether it was warranted. ‘Being a former prosecutor, he understands what tools are needed for law enforcement, but he also understands that there are serious concerns about ensuring people's liberties,’ said the aide, who spoke on condition of anonymity, for fear of provoking tensions with the Intelligence Committee.”
       The Chronicle article reported further that “with 16 provisions of the Patriot Act set to expire at the end of the year, the Bush administration has made the permanent extension of the law one of its legislative priorities. But critics are seeking to scale back provisions in the law that they say are vulnerable to abuse, and more than 380 governmental bodies, including seven states, have adopted formal resolutions voicing concerns about the broad reach of the law.”
       The first Act passed with little latitude to permit debate. “One of the most striking features of the USA Patriot Act is the lack of debate surrounding its introduction. Many of the provisions of the Act relating to electronic surveillance were proposed before September 11th, and were subject to much criticism and debate. John Podesta, White House Chief of Staff from 1998 - 2001, questioned what has changed since then. “The events of September 11 convinced ... overwhelming majorities in Congress that law enforcement and national security officials need new legal tools to fight terrorism. But we should not forget what gave rise to the original opposition - many aspects of the bill increase the opportunity for law enforcement and the intelligence community to return to an era where they monitored and sometimes harassed individuals who were merely exercising their First Amendment rights. Nothing that occurred on September 11 mandates that we return to such an era.
      One has to chuckle (but not too loudly) at the popular title of the Act, “the USA Patriot Act.” How could anyone be opposed to a law with that title? However, the Act has nothing to do with patriotism and has everything to do with expanded powers for federal law enforcement. In some instances, these powers intrude upon protections guaranteed by the US Constitution. Everyone favors stronger efforts to apprehend persons who are terrorists (they are remarkably similar to what historians call anarchists).
      The real issue is whether the new laws have been effective in the war on terror. This author is unable to answer that question but is concerned with aspects of the Act. Congress acted hastily in 2001 primarily out of concern over the events of September 11. It would be prudent for Congress to move with appropriate speed but also with appropriate debate in 2005. Liberties that are surrendered are not easily regained. It is troubling that the Committee is meeting in secret to debate the Act. Some quotations that appeared in the New York Times following a recent closed door meeting of the Committee are interesting.
       ‘You can fight terrorism ferociously without throwing people's rights in the trash can,” Senator Ron Wyden, Democrat of Oregon and a member of the committee, said after emerging from the meeting. Mr. Wyden said he wanted to see greater checks placed on the government's surveillance and investigative powers. He said he was concerned that giving the F.B.I. the authority to issue so-called administrative subpoenas, which would demand records in terror cases without a judge's approval, would amount to "a license to fish." He and other senators on the committee would not discuss details of the meeting because it was a closed session, disappointing civil rights advocates who said they thought the debate over the government's counterterrorism powers should be completely open to the public.
       "I can't talk about anything that happened in there," Senator Carl Levin, Democrat of Michigan, said after leaving the meeting. "We've been read the riot act on this one."
Is it a “brave new world” or just “business as usual?” Time will give us the answer.

John Brewer practices law in Oklahoma City, is a member of the Governor’s and Legislative Task Force for E-Commerce, and enjoys issues relating to eBusiness and cyberspace. Comments and questions are welcome and can be emailed to johnb@jnbrewer.com.

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