Christian Bourge, UPI
Friday, Aug. 8, 2003

Proponents of the measures contend they simply aim to protect individuals from overzealous government intervention into the individuals' private affairs and are a proper response to a groundswell of local-level opposition to the statute. However, the impact of the rollback effort has so far been fairly limited with little indication about how much actual momentum there is for revamping the law.

In addition, the attempts at changing the act face stiff opposition from Republican leaders in Congress that remain committed to the powers provided the Justice Department and other federal agencies.

Both liberal and conservative critics argue that the Patriot Act was approved in haste and represents a massive infringement on individual privacy with little return for law enforcement efforts at fighting terrorism.

Stephen J. Schulhofer, professor of Law at New York University, said the act was approved with a minimum of debate when little was known about the nature of the terrorist threat behind the Sept. 11 attacks.

"We are now in a position to re-examine this law," he told United Press International. "It is perfectly appropriate and really overdue for Congress to take a look at these things."

There are four measures pending in the House and Senate that seek to curtail the increased surveillance powers given to law enforcement in the 2001 act. The most comprehensive of them is a bill cosponsored by Sens. Lisa Murkowski, R-Alaska, and Ron Wyden, D-Ore., introduced last week.

More limited measures by Sen. Russell Feingold, D-Wis., who voted against the act, and Rep. Bernard Sanders, I-Vt., were also introduced just prior to Congress's August recess.

The Murkowski-Wyden bill would leave in place the expanded powers given to law enforcement in the act but install what proponents contend are modest checks on that power.

Specifically, the legislation would revamp a major part of the act that applies to foreign intelligence collection by requiring federal law enforcement to certify that primary purpose of electronic surveillance is to gather international, ostensibly blocking potential abuses of that power domestically.

The Murkowski-Wyden bill would also raise the standard for federal investigators to access an individual's private medical files or other such records -- including public library usage and book and video purchases -- by requiring probable cause first be established.

Under the Patriot Act, federal agents do not have to meet such a standard before searching bookstore, library and other records for information they deem relevant to terror investigations. The Justice Department has acted to make it illegal for those in charge of such material to tell suspects that their records have been reviewed by government officials.

Timothy Lynch, director of the project on criminal justice at the libertarian Cato Institute, said that it is just such abuses of the power granted to federal law enforcement that makes the moves to examine the act a positive development.

"It is an encouraging sign that as more time that has passed since the (Sept. 11) attacks there is more deliberation, more searching, and inquiry into whether the powers that were handed over in the Patriot Act were actually necessary," Lynch told UPI.

In addition, the Murkowski-Wyden legislation would require law enforcement to specify the individual target or location for approval of warrants for electronic surveillance and increase the level of judicial review of phone record warrants.

Definition of Domestic Terror

It would also limit the definition of domestic terrorism in an attempt to keep anti-war, anti-abortion and other protesters from being classified as terrorists under the current broad definition in the act.

Under the Patriot Act federal, agents can search and confiscate property without first notifying the owner and by only meeting a low standard for prior evidence to obtain a warrant for such searches. These so-called "sneak and peek" warrants have become a cause of concern for civil libertarians. The Murkowski-Wyden measure would increase the evidentiary threshold for allowing such warrants.

The introduction of this and other Patriot Act reform bills last week followed the successful addition of an amendment, sponsored by Rep. C.L. Otter, R-Idaho, who also voted against the Patriot Act, to a House bill funding activities at the departments of Commerce, Justice and State for the next fiscal year.

Otter's measure goes further than the Senate counterparts on the sneak-and-peek issue by baring the use of federal funds for these types of searches.

A Murkowski staff member told UPI that their bill was drafted in response to growing opposition to the Patriot Act in Alaska. Along with hearing directly from Alaskans opposed to the measure, numerous individual communities in the state have approved resolutions opposing the act. The Alaska Legislature has also passed a resolution asking the federal government to examine the privacy issues involved.

Lara Flint, a counsel at the Center for Democracy and Technology, a privacy advocacy group, echoed this by saying that the measures currently pending in Congress are the result of "grassroots efforts" in not just traditionally liberal areas but also more conservative Middle America. She cited the proliferation of local-level resolution in opposition to the act, adding that the growing sense that the Patriot Act went too far is starting to be heard by Congress.

"It (the Murkowski-Wyden bill) deals with some of the most troublesome aspects of the Patriot Act by inserting oversight and accountability of the executive branch," she told UPI.

Schulhofer noted that there was little opportunity for debate or study of the implications of the Justice Department wish list that became the Patriot Act. Many of the provisions included in the measure had long been wanted by federal officials but had been unattainable in the face of opposition from privacy groups and others interests whose input was heavily muted in the wake of the terrorist attacks.

He said the fact that the act did not receive the proper vetting typical for such bills coupled with the growing knowledge about the intelligence failures leading to Sept. 11, demonstrates why a re-examination of these laws is needed.

He said that we have learned that law enforcement's failure to stop the Sept. 11 attacks had little to do with a lack of intelligence and more to do with communications between agencies. In addition, there is no indication that casting a wider net for information from sources unrelated to terrorist attacks -- like people's library book records -- would have made any difference, nor would it in the future.

The measures pending in Congress do not represent the only challenges to the Patriot Act. A New York-based legal advocacy group, The Center for Constitutional Rights, filed a challenge to the act on constitutional grounds in Los Angeles federal court Tuesday.

Infringes on Free Speech

The suit alleges that the Patriot Act infringes on free-speech protections by outlawing any expert assistance, even non-terrorism related humanitarian assistance, to groups deemed terrorist operations by the federal government.

This filing follows an American Civil Liberties Union suit filed last week citing the act's provision allowing the government to seize business records in terror investigations as cause for a court-ordered reversal.

The increasing focus on the impact of the Patriot Act spells trouble for Bush administration efforts to gain support for further expansion of the law. Attempts by the Justice Department to gain congressional support for expanding the law enforcement and surveillance powers already provided, termed Patriot Act II, has so far met mostly with little support and some suspicion on Capitol Hill. The growing questions about the impact of the original law do not bode well for that effort.

Despite the growing political interest in the Patriot Act's impact, it is unclear whether the congressional response will be strong enough to ensure a revamping of the more contentious privacy-intrusive provisions.

The Murkowski-Wyden bill has received strong support from a cross section of groups, both liberal and conservative, including Americans for Tax Reform and the Rutherford Institute, along with the American Civil Liberties Union and the CDT. But support from any members of Congress beyond the two cosponsors has yet to materialize.

The Republican leadership in both the House and Senate has so far been silent on their feelings about these reform efforts.

Although Otter's sneak and peek amendment received strong support on the House floor, staff for the congressman said that the House Judiciary Committee, which had a hand in drafting the Patriot Act, remained opposed to the amendment with committee staff working to remove the provision in the final House-Senate compromise spending bill.

Republican and Democratic sources familiar with the issue indicated that the committee is expected to be successful in their effort to block the amendment as well as future efforts to revamp the Patriot Act.

Copyright 2003 by United Press International.

All rights reserved.

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Homeland/Civil Defense

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