Is Extending the PATRIOT Act a Compromise?


House Judiciary Committee Chairman F. James Sensenbrenner has introduced a bill that would make permanent the 16 provisions of the USA PATRIOT Act that are set to expire at the end of the year. The legislation throws a few bones to critics of the PATRIOT Act:

1) It would change the standard for obtaining secret Section 215 orders demanding "any tangible thing." Currently the FBI need only tell the Foreign Intelligence Surveillance Court "that the records concerned are sought for an authorized investigation…to protect against international terrorism or clandestine intelligence activities." Under Sensenbrenner's bill, the FBI has to state "that the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities." But it looks like the court will still be required to take the government at its word, as opposed to deciding whether it has made an adequate showing of relevance.

2) Sensenbrenner's bill also would clarify that an individual, business, or organization presented with a Section 215 order has a right to consult an attorney and to challenge the order before a review panel, despite the section's nondisclosure requirement. But since such orders will usually pertain to the records of a third party (a patient or bookstore patron, for example) and the recipents will still be barred from informing the people whose records are sought, it's doubtful that this provision will provide much protection in practice.

3) Perhaps most significantly, the bill does not include new administrative subpoena powers requested by the Bush administration that would allow the FBI to obtain records without even cursory judicial review. A spokesman told The Washington Times that Sensenbrenner "has not spoken fondly in the past of administrative subpoenas."

The administration's reaction was mostly positive:

"We will consider suggestions for clarifying and strengthening the act," [said White House spokeswoman Dana Perino]. "We appreciate Chairman Sensenbrenner's action today, as it is a strong demonstration of the importance of these tools for law enforcement to combat terrorism."

Asked specifically about the failure to include administrative subpoenas, she said, "The legislative process is just beginning, and we will continue to work with Congress as it moves forward. Our number one priority is reauthorization of the act as it was passed in 2001."

Those comments lend support to the theory that the main point of the proposal to expand PATRIOT Act powers was to make retaining them by repealing the sunset clauses look like a compromise.