WASHINGTON – As Attorney General Alberto Gonzales prepares his defense of expiring provisions of the Patriot Act, the anti-terrorism law’s opponents hope to persuade Congress not to extend what they say are intrusions into Americans’ lives.
Gonzales is to testify today before the Senate Judiciary Committee and go before the House Judiciary Committee on Wednesday. FBI Director Robert Mueller, who also wants full reauthorization of the Patriot Act, will join Gonzales for his Senate appearance.
On the same day Gonzales will speak to the Senate committee, Sens. Larry Craig, R-Idaho, and Dick Durbin, D-Ill., plan to reintroduce legislation designed to curb major parts of the Patriot Act that they say went too far.
“Cooler heads can now see that the Patriot Act went too far, too fast and that it must be brought back in line with the Constitution,” said Gregory Nojeim, associate director of the American Civil Liberties Union’s Washington legislative office.
The Patriot Act is the post-Sept. 11 law that expanded the government’s surveillance and prosecutorial powers against suspected terrorists, their associates and financiers. Most of the law is permanent, but 15 provisions will expire in December unless renewed by Congress.
Among them is a particularly controversial section permitting secret warrants for “books, records, papers, documents and other items” from businesses, hospitals and other organizations.
That section is known as the “library provision” by its critics. While it does not specifically mention bookstores or libraries, critics say the government could use it to subpoena library and bookstore records and snoop into the reading habits of innocent Americans.
That criticism has led five states and 375 communities in 43 states to pass anti-Patriot Act resolutions, the ACLU says.
Even some Republicans are concerned. Senate Judiciary Chairman Arlen Specter, R-Pa., has suggested it should be tougher for federal officials to use that provision.
Does “this really incorporate the kind of constitutional guarantees that Americans have come to expect?” said David Keene, chairman of the American Conservative Union.
Gonzales already has agreed to two minor changes to the provision, and is expected to address those today, a Justice Department official said on condition of anonymity so as not to pre-empt Gonzales’ testimony.
He will support giving someone who receives a secret warrant under the provision the right to consult a lawyer and challenge the warrant in court, and will back slightly tightening the standard for issuing subpoenas, the official said.
Neither change addresses the central concern of critics, which is that it allows the government to seize records of people who are not suspected terrorists or spies.
Gonzales and his predecessor, John Ashcroft, say the Patriot Act is a critical law enforcement tool that has helped protect the country from another terrorist attack. However, Gonzales has shown a willingness to discuss possible modifications, saying in January he would consider Specter’s suggestion to make it harder for officials to obtain warrants for books, records and other reading material.
“The attorney general has said before that if there are suggestions that can add to the government’s ability to root out terrorists and aid us in the war on terror, he will certainly work with Congress to do that,” Gonzales spokesman Kevin Madden said. “He looks forward to a healthy discussion about those provisions.”
But Gonzales wants the entire Patriot Act renewed and has spent significant time talking up the law in preparation for his possibly contentious appearances before Congress.
“I am willing to support improvements to our laws that make America safer. What I will not support are changes in the law that would make America more vulnerable to terrorist attacks,” he told a conference in February.
Critics say the law allows the government to target certain groups, but the Justice Department counters that no Patriot Act-related civil rights abuses have been proven.
Just in case, Craig and Durbin plan to ask Congress Tuesday to curb both expiring and nonexpiring parts of the Patriot Act, including the expiring “library” provision and “sneak and peek” or delayed notification warrants. Those warrants – which will not expire in December – allow federal officials to search suspects’ homes without telling them until later.
The Justice Department said federal prosecutors have asked for 155 such warrants since 2001.
Gonzales also notes that the law has been used in nonterrorism cases. But nonterrorism uses are part of what concerns Grover Norquist, president of Americans for Tax Reform.
“Many of us remember what happened with RICO,” the Racketeer Influenced and Corrupt Organizations Act, Norquist said. “It was originally passed and they were going to go after organized crime figures in dark shirts and they ended up using it against pro-life demonstrators years later.”