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  Daily Briefing  
September 11, 2003

Administration appeal for more surveillance powers sparks outcry

By Drew Clark, National Journal's Technology Daily

Privacy and 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 anti-terrorism laws.

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 review."

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."

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  • Two years later, difficult questions remain   (09/11/03)
  • Ashcroft begins tour defending anti-terror powers   (08/19/03)
  • ACLU sues Justice, FBI over broader surveillance powers   (07/30/03)
  • Ashcroft defends department's use of expanded antiterror powers   (06/05/03)
  • Justice offers draft bill expanding law enforcement powers   (02/10/03)

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