Government nearly doubles use of Patriot Act search power

WASHINGTON -- Justice Department investigators nearly doubled the rate at which they used a controversial new search-and-seizure power, allowed under the USA Patriot Act, during the past 22 months, according to data released by the Bush administration yesterday on the eve of congressional testimony by Attorney General Alberto Gonzales.

Formally called delayed-notification searches, the warrants are known as ''sneak and peek" because they allow investigators to search a person's home or business and to seize property without disclosing for weeks or months that they were there. Although investigators must convince a judge that there is a ''reasonable suspicion" that the investigation would be harmed if the subject were notified, no judge has ever denied a request for those searches.

Although the warrants are codified in a law enacted to fight terrorism, they are not limited to terrorism investigations. And, according to the Justice Department, investigators have increasingly resorted to the power since the Patriot Act became law shortly after the terrorist attacks of Sept. 11, 2001.

The Justice Department said yesterday that the power was a valuable law enforcement tool for a ''wide spectrum of criminal investigations, including those involving terrorism and drugs." But the American Civil Liberties Union said the release ''confirms our worst fears" that the use of the law is expanding beyond terrorism investigations, and called for greater oversight.

The Senate Judiciary Committee today intends to question Gonzales and FBI Director Robert S. Mueller III about how the Justice Department has been using its Patriot Act powers, setting the stage for a year of political debate over whether to make the Patriot Act permanent or to scale it back.

In May 2003, the Justice Department released its initial data on how often it had used the search power, covering Oct. 26, 2001, to April 1, 2003. During those roughly 17 months, it asked for and got sneak-and-peek warrants 47 times, or about 2.7 times a month. According to data released yesterday, investigators sought the warrants 108 times in 22 months -- from April 1, 2003, to Jan. 21, 2005, a rate of 4.9 times a month.

The Justice Department said in its statement that sneak-and-peek searches are a very small fraction of the total number of search warrants it uses in its investigations. The searches allow agents to gather evidence against subjects without tipping them off that they are under scrutiny -- something that could prompt them to flee, destroy evidence, or menace a witness.

''The department estimates that court-approved delayed-notification warrants represent less than 0.2 percent of the search warrants utilized by law enforcement," the statement said.

The law also allows the clandestine seizure of property when a judge finds that it is ''reasonably necessary." The Justice Department said it has sought such authorization 45 times since the Patriot Act became law.

But the ACLU said the ''highly intrusive" searches ''are being used primarily outside of the terrorism arena. Congress must insist on receiving more detailed information on each of these searches and why each was necessary."

Delayed-notification search warrants are among the enhanced police powers included in the Patriot Act. Although judges have had the authority to approve no-notification warrants in certain criminal cases for decades, the power did not become codified until the Patriot Act.

The ACLU and other critics have called for greater checks on the power, including stricter standards for when and how a judge may authorize sneak-and-peek searches. According to the Justice Department data, no judge has ever denied a law enforcement request for such search-and-seizure warrants.

Gonzales's and Mueller's testimony today before the committee will mark the start of the Bush administration's campaign to persuade Congress to make the entire Patriot Act permanent this year. Several of its provisions are due to expire at the end of the year, although the sneak-and-peek" search is not one of them.

A coalition of liberal and conservative libertarians plan to call today for the passage of the ''Safety and Freedom Enhanced Act," which would amend several of the Patriot Act's provisions to provide for greater safeguards and oversight on when and how the powers are used.

Arlen Specter, chairman of the Senate Judiciary committee and a Republican of Pennsylvania, said yesterday that reauthorizing ''certain key provisions" of the Patriot Act is necessary, but he left the door open to scaling it back, contending that he is ''mindful of the strong criticism which is coming from both the right and left of the political spectrum."

Democratic Senate aides said Gonzales will also face questioning regarding FBI agents who allegedly witnessed ''torture techniques" during interrogations of ''enemy combatants" at the Guantanamo Bay Navy Base in 2002.