Security vs. liberty: a balance in crisis.

With the 2004 presidential election over, the political horse race is likely to head back to the stables until the mid-terms, to be replaced in the headlines by more substantive matters of policy. One of the most significant controversies that will have to be addressed over the next year is the fate of the 2001 counter-terrorism bill known as the Patriot Act. And it promises to be a real brawl.

At issue are a series of provisions in the 2001 law that many lawmakers in Congress point to as one of the primary reasons why they were willing to vote for the Patriot Act. Known as the "sunset" provisions, they require Congress to reconsider many of the most sweeping sections in the law by the end of 2005. If they do not, the "sunseted" provisions expire.

The basic idea behind having the sunsets in place, especially for those members who uneasily voted in favor of the bill, was to have some mechanism that would force Congress to give the Patriot Act a long, sober second look, a look that they felt to be essential in a democracy.

Interestingly, the battle lines over the sunsets break down into unusual camps. On one side, in favor of removing the sunsets and making the entire law permanent, is a veritable who's who of anti-checks-and-balances conservatives, who feel that the president's power in America should be expanded greatly at the expense of the courts and Congress. These opponents include former U.S. Attorney General Ed Meese and Judge Robert Bork.

On the other side, however, is not just the usual coalition of progressive, good-government organizations and lawmakers, who favor retaining and expanding the sunsets. It includes a large cadre of conservative constitutionalists strongly critical of Patriot Act provisions that make it easier for the government to intrude on personal privacy rights and civil liberties without judicial review or Congressional oversight.

These conservative critics of the Patriot Act include, among many others, firebrand former Georgia Congressman Bob Barr, the American Conservative Union, Grover Norquist's Americans for Tax Reform and the entire Republican Congressional delegation from Idaho.

The Patriot Act absolutists, in arguing for a blanket removal of the sunsets, basically make one substantive argument. The Patriot Act should be made permanent, they contend, because it broke down the "wall" preventing criminal and intelligence investigators from sharing information, and now allows the federal government to "connect the dots" between disparate events and intelligence alerts suggesting terrorist activity.

The problem with this particular argument is two-fold. First, on a legal level, the Patriot Act had little to do with breaking down the wall. Indeed, the "wall" was not really a wall at all, but a series of policies put in place to prevent prosecutors from using spyhunting powers, which require less in the way of specific evidence, to sidestep constitutional protections in criminal investigations.

Second, even with the "wall" intact, the FBI and Justice Department could still have freely shared information internally (as well as with foreign intelligence agencies like the CIA), that would have "connected the dots" before 9/11. The agencies, for a variety of reasons, simply chose not to do so. And that is precisely what the Patriot Act failed to address.

The need for reform is apparent. The Patriot Act is a massive piece of legislation, encompassing more than 150 provisions and, as voted on by Congress, almost 400 pages long. Civil libertarians only take issue with about a dozen provisions. The sunsets, moreover, only apply to a few of the 12 problematic provisions, though the sections that sunset are arguably some of the most dangerous in the law.

For instance, Section 215, better known as the "library records" provision, is scheduled to sunset unless Congress votes to reauthorize it.

Legally, this section allows the FBI to seek a court order requiring the production of personal records held by third parties from the top secret foreign intelligence court in Washington. The law allows the use of these orders to compel the production of "any tangible thing," which is arguably infinite in scope. Certainly, by Attorney General John Ashcroft's own admission, Section 215 can be used to seize library, medical, business and even genetic records. Worse, the court orders are pro forma, as the judicial review permitted is essentially meaningless.

Also due to sunset unless Congress acts to make it permanent is the provision allowing for "roving wiretaps" under foreign intelligence authorities. Though few would quibble with the idea that the FBI should be able to follow "the person, not the phone," which is what Section 206 authorizes, the provision laid the groundwork for a novel new power, known as the "John Doe" wiretap. Coupled with a subsequent intelligence bill, the roving wiretap authority, as it currently stands, permits the authorities to conduct a wiretap even if they don't know the place or person to be tapped.

Practically, the "John Doe" roving wiretap allows the FBI to, hypothetically, wiretap a whole suite of offices because it believes a terrorist or spy is using one of them. There are few protections in place to safeguard the private conversations of innocent Americans that could be monitored under the new power.

This loophole in the roving wiretap provision arguably epitomizes the reason for the inclusion of the sunsets in the first place. Opponents of the sunsets want Congress to void the expiration provisions entirely, precluding any further debate on the Patriot Act and making it a permanent fixture of our legal code. The "John Doe" loophole, however, clearly demonstrates the need for future debate on the Patriot Act, which was passed in great haste in a time of great stress. The sunsets stand for giving Congress a second chance to get it right.

The 9/11 Commission recognized this need for additional debate and deliberation in its 2004 final report. "Because of concerns regarding the shifting balance of power to the government," the report says, "we think that a full and informed debate on the Patriot Act would be healthy."

To this end, the commission proposed a two-pronged test for any proposed extension of the Patriot Act or other expansion of federal power. First, it argues, the President should bear the burden of proving to Congress and the public the necessity of the new power. Second, Congress should also include appropriate safeguards in new authorities to minimize the potential for abuse.

It is crucial to note that the sunsets are not the end of the story; further reform of the Patriot Act is necessary. The section in the law expanding the ability of law enforcement to delay telling a person that their home or office has been searched, for instance, does not sunset. Neither does a provision that could be used to allow the FBI to peruse the content of e-mail messages without probable cause.

There is a real danger that the back and forth of the sunsets fight will obscure the larger issues at stake. At base, the debate over the Patriot Act is about how America wants to be governed, and how much latitude we are willing to give government agents to spy on and investigate Americans under the broad banner of "national security." Historically, America has had a difficult time striking the proper balance between security and liberty, and invariably overcompensates on the former at the expense of the latter, especially during times of crisis.

Congress, in its wisdom, included in the Patriot Act an internal check in the form of the sunsets. It now has a second chance to get it right, to review and revise the Patriot Act, and to bring those sections that went too far, too fast back in line with the Constitution. The League of Women Voters continues its advocacy and education efforts with respect to the sunsets and other civil liberty concerns (see League Matters and Hill Bulletin in this issue). Likewise, the ACLU will be working hard to make sure it takes full advantage of this crucial opportunity.

VOTER LINKS

* www.aclu.org

* www.lwv.org/join/justsociety/civilliberties.html

Laura Murphy has been the ACLU Washington Legislative Office director since 1993.