Sunday, April 10, 2005

Revising the Patriot Act

The New York Times
April 10, 2005

Revising the Patriot Act

When Attorney General Alberto Gonzales, who is not exactly a renowned civil libertarian, says the Patriot Act may need some adjustments, it clearly has serious problems. The act, which was rushed through Congress after the Sept. 11 attacks, gives government too much power to invade the privacy of ordinary Americans and otherwise trample on their rights. Congress, which is now reviewing the act, should rewrite the parts that violate civil liberties. But it is important to realize that most of the worst post-Sept. 11 abuses did not stem from the Patriot Act. If Congress wants to restore the civil liberties Americans have lost in the last three and a half years, it must also look more broadly at the problems that have emerged from the war on terror.

After Sept. 11, Congress was in such a rush to pass the Patriot Act that, disturbingly, many members did not even read it before they voted for it. Fortunately, Congress made some of the most controversial provisions expire by the end of 2005. Last week, it began a series of hearings on the act, focusing on the parts that need to be reauthorized.

The debate over the Patriot Act is too often conducted in bumper stickers, in part because the details are so arcane. Parts of the law are reasonable law enforcement measures that have generated little controversy. But other parts unquestionably go too far, and invite the F.B.I., the C.I.A. and the White House to spy on Americans, and suppress political dissent, in unacceptable ways.

Libraries and Medical Records Section 215, often called the "library provision," is one of the most criticized parts of the act, with good reason. It allows the government to demand library, medical, and other records, and makes it a crime for the record holders to reveal that the request was made. Section 215 is written far too broadly. It lets the government seize an entire database - all the medical records of a hospital, all of the files of an immigration group - when it is investigating a single person. It also is far too invasive; it is hard to believe the F.B.I. needs to monitor library book circulation. If the searches are allowed, Section 215 should be tightened to give the government access only to records of a specific person it has legitimate reason to believe is involved in terrorism, not an entire database.

The "gag rule" that makes it illegal for the record holder to talk publicly about the search also is disturbing, because it prevents the public from knowing if the government is abusing these sweeping powers. If the gag rule remains, it should be limited, so record holders can speak about the search after a suitable period of time, or talk about it right away without revealing who the target was.

Secret Searches Section 213, the "sneak and peek" provision, lets the government search a person's home and delay telling him about it. These delayed-notification searches fly in the face of the strong American tradition that the government must announce when it is entering a home. Delayed-notification searches were of questionable legality before the Patriot Act, and Section 213 - which does not expire this year, but is still generating considerable debate - clearly goes too far. At the very least, it should apply only to terrorism cases, and not, as it now does, to all investigations. It should also have clear guidelines for how long notice can be delayed.

Secret searches are an area where focusing only on the Patriot Act misses the larger picture of civil liberties violations. There is another law, the Foreign Intelligence Surveillance Act, that allows a worse kind of secret search - one in which, unlike the delayed notification of Section 213, the subject may never be told about the search at all.

One way for Congress to deal with searches under the Foreign Intelligence Surveillance Act - as well as those under Sections 213 and 215 of the Patriot Act - is to monitor them closely, which is not being done now. Congressional staff members with appropriate security clearance should review all requests for warrants or subpoenas, and should follow up on the results of the searches. If the F.B.I., C.I.A. or other units of government are using these tools to spy on Americans without sufficient justification, Congress needs this information to rein them in.

Information Sharing Giving different units of government more power to share information about suspected terrorists is a laudable goal, but the Patriot Act's approach is flawed. It authorizes the F.B.I., the C.I.A., and even the White House sweeping access to confidential information gathered about Americans, including telephone and e-mail intercepts. The access is not limited to officials working on terrorism. And it sweeps in information, like confidential material acquired by grand juries, that has always been closely guarded. There is a real danger that the new regime established by the act could produce a massive database on Americans, freely available to all units of government.

The Patriot Act makes the same mistake the F.B.I. and C.I.A. have long made: favoring information quantity over quality. The universe of data that is shared should be narrowed, to focus on information closely related to suspected terrorism, and rather than being indiscriminately dumped, it should be given only to officials, at whatever agency, engaged in investigating terrorism. In the case of data collected subject to the special powers of a court, such as wiretaps and secret grand jury material, a judge's approval should be required before it is simply dumped into a general database.

Beyond the Patriot Act At last week's hearings, Mr. Gonzales conceded that the Patriot Act may need some adjustment, while the Justice Department is largely standing by the law, and the F.B.I. is even seeking to expand it. But a coalition of Republicans and Democrats in Congress, backed by such unlikely allies as the American Civil Liberties Union and the American Conservative Union, is pushing for changes. In the coming weeks, there will be more hearings on how the act can be improved.

These hearings should look beyond the Patriot Act, to the larger picture of civil liberties and the war on terror. After Sept. 11, the government rounded up illegal immigrants, and put hundreds with no ties to terrorism behind bars for months, often in deplorable conditions. The Justice Department's own inspector general found that the government made "little attempt" to distinguish people with ties to terrorism from those without. In conducting this roundup, the Bush administration gave itself far more power than the Patriot Act does. Under the act, aliens are to be held no more than seven days before immigration or criminal charges are brought.

Nor did the Bush administration rely on the Patriot Act for its lawless "enemy combatant" doctrine, the basis for holding American citizens suspected of terrorism indefinitely, without access to family members or lawyers. And the administration now claims that the C.I.A. has the right to secretly transfer suspected terrorists to foreign countries for interrogation. Critics of the process, known as rendition, say it is being used to subject these suspects to torture. The authority for rendition comes not from the Patriot Act, but from a classified directive that President Bush signed shortly after 9/11.

If Congress becomes too bogged down in the minutiae of the Patriot Act in coming weeks, it will be in danger of missing the larger picture. Revising the law should be the start, not the end, of its work.