dissolve, and the people, recovering their true sight, restore their government to
its true principles. It is true that in the meantime we are suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public debt.
If the game runs sometimes against us at home we must have patience till luck
turns, and then we shall have an opportunity of winning back the principles we
have lost, for this is a game where principles are at stake." ...Thomas Jefferson
after passage of the Sedition Act of 1798
--------------------------------------------------------------------------------
May 19, 2005
Plan Would Broaden F.B.I.'s Terror Role
By ERIC LICHTBLAU
WASHINGTON, May 18 - The Bush administration and Senate Republican leaders
are pushing a plan that would significantly expand the F.B.I.'s power to demand
business records in terror investigations without obtaining approval from a judge,
officials said on Wednesday.
The proposal, which is likely to be considered next week in a closed session of the
Senate intelligence committee, would allow federal investigators to subpoena
records from businesses and other institutions without a judge's sign-off if they
declared that the material was needed as part of a foreign intelligence investigation.
The proposal, part of a broader plan to extend antiterrorism powers under the law
known as the USA Patriot Act, was concluded in recent days by Republican leaders
on the Senate Select Committee on Intelligence in consultation with the Bush
administration, Congressional officials said.
Administration and Congressional officials who support the idea said the proposal
would give the F.B.I. a much-needed tool to track leads in terrorism and espionage
investigations that would be quicker and less cumbersome than existing methods.
They pointed out that the administrative subpoena power being sought for the
F.B.I. in terror cases was already in use in more than 300 other types of crimes,
including health care fraud, child exploitation, racketeering and drug trafficking.
"Why not provide that same tool to national security investigators as well?" asked
an aide to the intelligence committee who was involved in the proposal, speaking on
condition of anonymity because the issue will be discussed at a closed meeting
scheduled for May 26. "There wasn't really a whole lot of cogent argument against
it."
But word of the proposal on Wednesday generated immediate protests from civil
rights advocates, who said that it would give the F.B.I. virtually unchecked
authority in terror investigations, and the plan is likely to intensify the growing
debate in Congress over the balance between fighting terrorism and protecting
privacy rights.
"This is a dramatic expansion of the federal government's power," said Lisa Graves,
senior counsel for the American Civil Liberties Union in Washington. "It's really a
power grab by the administration for the F.B.I. to secretly demand medical records,
tax records, gun purchase records and all sorts of other material if they deem it
relevant to an intelligence investigation."
Kevin Madden, a spokesman for the Justice Department, said department officials
welcomed the intelligence committee's efforts "to support provisions that enhance
law enforcement's ability to combat terrorism effectively and are particularly
heartened by their support for the USA Patriot Act."
Support for the idea among many Democrats and some Republicans in Congress is
uncertain, and the Senate intelligence committee's plan to push the proposal could
set off a struggle with the Senate Judiciary Committee. The Judiciary Committee
has joint authority for oversight of foreign intelligence surveillance law - which
would be expanded under the current proposal - but its members have shown
some reluctance to expand the F.B.I.'s counterterrorism powers.
A Judiciary Committee aide said that Arlen Specter, the Pennsylvania Republican
who leads the Judiciary Committee, wanted to study the intelligence committee's
proposal closely to determine if it was warranted. "Being a former prosecutor, he
understands what tools are needed for law enforcement, but he also understands
that there are serious concerns about ensuring people's liberties," said the aide,
who spoke on condition of anonymity for fear of provoking tensions with the
intelligence committee.
With 16 provisions of the Patriot Act set to expire at the end of the year, the Bush
administration has made the permanent extension of the law one of its top
legislation priorities. But critics are seeking to scale back provisions in the law that
they say are vulnerable to abuse, and more than 380 governmental bodies,
including seven states, have adopted formal resolutions voicing concerns about the
broad reach of the law.
One provision of the law that has generated perhaps more criticism than any other
is Section 215, derided by critics as the "library records" provision. It allows the
F.B.I. to go to a secret intelligence court to demand access to material from
businesses and other institutions as part of intelligence investigations.
The Justice Department said in a newly declassified report last month that it had
used the power 35 times since late 2003 to gain information on apartment leasing,
driver's licenses, financial records and other data in intelligence investigations. But
it stressed that it had not used the authority to date to demand records from
libraries or bookstores or to get information related to medical or gun records - all
areas of concern to critics.
Democrats and civil liberties advocates said on Wednesday that they were
concerned that the F.B.I.'s expanded subpoena power under the intelligence
committee's proposal would render obsolete the limited safeguards under Section
215. While that provision requires the Justice Department to receive the approval
of the secret intelligence court before demanding records, the administrative
subpoenas under the new proposal would not.
"This all comes down to not wanting an F.B.I. agent to have to go to a prosecutor
and then the court to get formal approval for a subpoena," said a Democratic
Congressional official, who spoke on condition of anonymity because the
intelligence committee's proposal is still considered confidential. "This becomes a
substitute."
But supporters of the plan said they had built in safeguards.
The F.B.I. could only issue the demands for records with the approval of the
director or senior officials down through the rank of a special agent in charge,
officials said. In addition, those given subpoenas would not automatically be bound
to silence unless the F.B.I. determined that disclosure could threaten national
security. The Justice Department would have to report twice a year on its use of
the power, and the law would be amended to specify that material must be
"relevant" to a foreign intelligence investigation.
