A Better Patriot Act

Monday, December 12, 2005; Page A24

THE CONFERENCE report on the USA Patriot Act reauthorization bill contains
one major improvement over the previous version and a few minor ones. The
new bill contains strong "sunset" provisions, under which the three most
controversial provisions would lapse again after four years, not the seven
of the earlier draft. This is no small win for civil liberties. The sunset
provisions in the original Patriot Act have given Congress leverage over the
past few years to extract information from an administration not known for
openness concerning its use of the powers Congress gave it. Insisting that
the administration justify itself again relatively soon ensures that
Congress will be able to adjust and refine the law as need be.

Yet the conference report remains far from perfect. A bipartisan group of
senators is still objecting that it does too little to protect civil
liberties, and they are threatening a filibuster, though it is not clear
whether they have the votes to sustain one. Some of the changes they are
seeking are reasonable and constructive. While the bill does not contain the
worst excesses of the House version, which was larded with irrelevant and
often terrible policy changes, it still has a fair number of extraneous
sections. Some are silly, some ugly.
What makes all this so frustrating is that a consensus bill was surely
possible. Indeed, it happened. The Senate version of the bill passed on a
unanimous vote, representing broad agreement to grant government authorities
the powers they legitimately need while ensuring accountability in their use
-- and it didn't contain a raft of irrelevant laws unrelated to
intelligence. The members balking at the current bill would do a service if
they forced a cleaner, more accountable Patriot Act reauthorization.

Debate over the conference report has focused on a narrow array of civil
liberties issues, all quite technical. The rhetoric from civil libertarians
makes the stakes here seem greater than they really are. The differences
between the various proposals are not huge in practical terms. They are,
however, significant. The conference report contains weaker controls on
secret warrants for business records in national security cases than the
Senate bill did. It also does too little to get a handle on the use of
national security letters -- a form of administrative subpoena that the FBI
uses in national security cases to obtain records of certain business
transactions. These problems are not unsolvable, and it's hard to believe
the government is today getting much data through uses of these powers that
would be forbidden were they written more accountably.

What's more, sift through the bill and you'll find provisions dealing with
tobacco smuggling, establishing civil immunity for folks who donate
firefighting equipment to fire departments, establishing new crimes -- some
punishable by death -- related to marine navigation, creating a new national
security division in the Justice Department, letting Secret Service
forensics experts help out in finding missing kids, combating
methamphetamine abuse and making life more miserable for people challenging
state convictions in federal court. None of this, needless to say, has much
to do with protecting America from al Qaeda.

The Patriot Act cannot be allowed to lapse at year's end, and the current
bill is much improved over earlier versions. But it could still be a lot
better. Precisely because the administration cannot afford to let its powers
expire, further improvement should still be possible.

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