civil-liberties groups on Thursday criticized President Bush's
call for expanding government surveillance capabilities but said
mounting criticism of a 2001 anti-terrorism law had forced the
administration into adopting a piecemeal strategy for new
In a Wednesday speech at the FBI academy in Quantico, Va., Bush
called for three new law enforcement powers that had been included
in early version of the 2001 law, known as the USA PATRIOT Act,
but that were stripped before its enactment. On Tuesday, lawmakers
introduced two new bills, H.R.
3037 and H.R.
3040, that would address two of those three powers.
The first bill would authorize executive-branch officials to
seize Americans' records in terrorism cases without any form of
judicial review. The other measure would reverse the burden of
proof by which individuals could be held without bail in cases
involving terrorism. The third power, not addressed in either
bill, would expand the death penalty in terrorism cases.
The "administrative subpoenas" have been made available to the
Drug Enforcement Agency since 1970 and later were expanded to
combat health care fraud.
"These are pretty darn close to the writs of assistance that
got the founders of this country thinking about a revolution" in
1776, said Tim Lynch, director of the Cato Institute's
criminal-justice program. "Administrative subpoenas bring us back
to executive-branch warrants, as opposed to judicial warrants."
Such a step is unlikely to achieve support in Congress, he
said. "The mood in Congress has shifted [toward civil liberties],
and there is going to be a closer examination of whatever Attorney
General [John] Ashcroft or even Bush asks for," Lynch said.
"Barring a new terrorist attack, there is going to be a tougher
time handing over new powers to the Justice Department."
Even Senate Judiciary Committee Chairman Orrin Hatch, R-Utah,
normally a staunch supporter of administrative requests, has
stopped pushing to include administrative subpoenas in separate
anti-drug-trafficking legislation, said Tim Edgar, legislative
counsel for the American Civil Liberties Union. Hatch spokesmen
failed to return calls Thursday afternoon.
"The concerns about the PATRIOT Act have forced [the
administration] to go under the radar more than they would
otherwise have done," Edgar said.
The proposal also was included in separate Justice draft
legislation that critics have dubbed "PATRIOT Act II." An ACLU
analysis said that under the proposal, "documents of the most
sensitive kind—including library, medical and genetic
records—could be seized without individual suspicion or court
The ACLU has criticized the PATRIOT Act for letting the
government obtain a court order from a judge in terrorism
cases—even though the judge must accept the request if the
government says the information is necessary. The new power would
permit agents to seek the records of businesses and Internet
service providers without any judicial involvement.
In a separate White House report, the administration praised
the PATRIOT Act for "removing major legal barriers that had
hampered [anti-terrorism] coordination between the law
enforcement, intelligence and national defense communities."