Panel to weigh beefed-up Patriot Act

WASHINGTON -- The Senate Intelligence Committee will meet behind closed doors this week to consider legislation that could dramatically expand the government's police powers under the USA Patriot Act, including a little-discussed provision to enlarge the FBI's ability to wiretap people who it suspects are national security threats.

The proposal, in a draft bill sponsored by committee chairman Pat Roberts, Republican of Kansas, would lift one of the last restrictions on special warrants the FBI can obtain through a secret court originally set up to monitor foreign spies: that the information the bureau wants must be related to international terrorism or foreign intelligence.

Instead, the FBI could use the warrants, which bypass normal constitutional safeguards, to look for evidence of unrelated crimes that it could use to get suspects off the street. The wiretap provision is one of three major additions in the draft bill, which would reauthorize the Patriot Act, the package of enhanced law enforcement powers enacted after the attacks of Sept. 11, 2001.

If the bill became law, it also would give FBI agents the power to write their own subpoenas without permission from a judge, allowing them to seize records from hotels, banks, and Internet service providers. This provision would require the FBI to make periodic reports to Congress about how often it uses that power to obtain library records, bookstore and firearms sales receipts, and medical or tax records.

The bureau also would have the authority to order the US Postal Service to make and turn over photocopies of envelopes addressed to or sent from people who have some connection to ongoing national security investigations. And the bill would extend the deadline before the FBI is required to ask a judge to extend or renew a wiretap.

The draft bill Roberts has sponsored would escalate the government agents' police powers at a time when civil libertarians have been trying to roll back the Patriot Act by urging greater oversight of investigations by courts and Congress. The Intelligence Committee bill doesn't include the new safeguards that critics, including both Democrats and Republicans, have proposed.

Lisa Graves, an attorney with the American Civil Liberties Union, called the proposed bill a strategic maneuver by Republicans to shift arguments from curbing the Patriot Act to expanding it.

''It's an attempt to force the debate onto their terms, versus where the momentum has been headed, which is to roll back the Patriot Act to bring it in line with the Constitution and make sure its tools are focused on terrorists, as opposed to Americans," Graves said.

The draft of Roberts's proposal is still largely under wraps, and no one at the Justice Department nor the Intelligence Committee was available to comment on it late last week. It was given to a small group of specialists who testified at the only public hearing in the Intelligence Committee in late May. At that little-noticed hearing, the FBI's general counsel, Valerie Caproni, testified that the Justice Department strongly supported Roberts' bill.

''Many of the most important provisions of the USA Patriot Act . . . are scheduled to sunset at the end of this year, and the [Justice] Department therefore applauds this committee for taking up legislation that would make permanent those provisions," she said, according to her prepared opening statement at the hearing. ''We are also heartened that this committee has come forward with novel and worthwhile ideas for strengthening the department's counterterrorism capabilities."

Two of the new powers the Intelligence Committee would give to the FBI bear a strong resemblance to tools the bureau has long coveted, but which federal judges in the past have rejected.

In 2002, the Bush administration argued that, under the original language of the Patriot Act, it should be able to use the national security warrants from the secret Foreign Intelligence Surveillance Court to look for evidence of ordinary crimes as a way to keep suspected terrorists off the streets -- the same idea contained in the Roberts bill. It was rejected by a special review panel for the secret court.

''We see not the slightest indication that Congress meant to give that power to the Executive Branch," wrote the panel, made up of federal appeals court judges. The national security warrant process, they declared, ''cannot be used as a device to investigate wholly unrelated crimes."

The possibility that the FBI could get such powers under a renewed Patriot Act has alarmed civil libertarians.

''From a constitutional standpoint, that would be devastating because it would essentially render the Fourth Amendment protections against unreasonable searches and seizure completely meaningless," said former US Representative Bob Barr, the Georgia Republican who became a civil liberties specialist for the American Conservative Union, the nation's oldest conservative lobbying organization, after leaving Congress in 2003.

Although the powers sought by the FBI in the Roberts bill are significant, neither Roberts nor the Bush administration has made a strong effort to build a public case for why the bureau needs them before the bill is finalized.

Attempts to get a comment from Roberts's spokesman on the Intelligence Committee or from the Justice Department, which supervises the FBI, were unsuccessful. Members of the committee staff and representatives of the Justice Department said that the two people who are authorized to talk about the Patriot Act were both away, and that no one else could comment.

The FBI was rejected in a prior attempt to write its own subpoenas for records from businesses if agents determined that the records were ''relevant" to a national security investigation -- considered a very low standard to meet. Last fall, judges stripped the bureau of that power, declaring it unconstitutional.

Laws dating back to 1986 had granted the bureau the power to write its own subpoenas to get telephone and Internet records for national security investigations of foreign agents. Business owners served with those FBI demand letters were permanently gagged from telling anyone about the incident, including their clients and their own lawyers.

In 2001, the Patriot Act removed a key requirement. Now, the subject only has to be ''relevant" to investigations of suspected terrorists or foreign spies, a significantly broader standard.

After FBI agents used the power to demand unspecified customer service records from an Internet service provider, the company challenged the bureau in court instead of complying.

In September 2004, a judge ruled that power unconstitutional, saying that it violated both free speech and unreasonable search protections. That case is still under appeal, but the draft bill would restore the power and expand it to any kind of records, papers, or other ''tangible things" about a target which are held by a third party, with new procedures intended to address the constitutional issues.

Civil libertarians argue that the FBI has not clearly shown how its investigations have been hampered for lack of this power. And they warn that -- unlike the Internet service provider who took the bureau to court -- few business owners will assume the expense of fighting such a subpoena, even if it is unreasonable, since their own privacy is not at stake.

Moreover, the Roberts provisions would surpass what is already one of the most controversial parts of the original Patriot Act: a section that allows the FBI to get warrants for customer records from the secret court, which was created in 1978 by the Foreign Intelligence Surveillance Act.

This provision has been attacked by a range of critics, including librarians, who fear it will be used to obtain reading lists of their patrons. The Bush administration has said it has never used this power against libraries.

At a time when critics of the Patriot Act want to curtail this power, the Intelligence Committee proposal would eliminate its final check -- lifting the requirement that the FBI get permission from the secret court before seizing the records.

''The administrative subpoena proposal is alarming because [the Patriot Act version] was already way broader than anything they needed," argued Stephen Schulhofer, a New York University law professor and author of a new book about the Patriot Act.