The process is reminiscent of the method by which the original Patriot Act was passed in 2001. During lengthy committee debate in the House back then, minority members fought strenuously for numerous safeguards for civil rights in view of the governments expanded surveillance powers, and they succeeded in inserting several. However, the committees work was dismissed summarily by congressional leaders and replaced by a version of the legislation backed by the Administration. The leaderships bill was rapidly brought for a vote on the floor before some members had time to even read it.
This time around, it was the Senate that fought for the Bill of Rights, unanimously voting earlier this fall to restore some checks and balances to the FBIs powers to demand the personal records of ordinary Americans from a wide variety of businesses. The House approved a bill much more to the Administrations liking, and this week conferees from both chambers met to iron out the differences. The end product, as it stands today, guts the Senates safeguards.
Only the conferees know what took place in their closed sessions, but civil rights advocates warn that Congress is poised to repeat the mistakes made four years ago.
"Its very similar to the process in 2001," said Bob Barr, former Republican representative from Georgia. "We believe its a very inappropriate and dangerous game to play. Politics seems to be driving this whole game. The Senate worked long and hard to fashion a compromise."
The concern among a coalition of critics spanning the gamut of political leanings is that the Administration took control of the conference on Capitol Hill.
"Theres been a lot of pressure by the administration and the Justice Department to refuse to go along with advances in the Senate bill," said Lisa Graves, senior counsel for legislative strategy at the American Civil Liberties Union. "Theres definitely an attempt to railroad this through."
For American businesses that face rising costs in complying with an exploding volume of FBI surveillance orders since the passage of the USA Patriot Act, the secretive bout of law-crafting adds to the defenselessness that they endure under the act. Manufacturers, banks, real estate firms, bookstores and other businesses banded together to press for checks and balances to the FBIs powers, but that effort appeared to be no match for the administrations determination to further bolster those powers.
Businesses and privacy rights advocates want foremost to dissuade the FBI from conducting unlimited, indefinite or unwarranted searches of ordinary Americans. Recent reports suggest that the FBI now issues tens of thousands of NSLs (National Security Letters)—orders for a wide variety of records that they issue unilaterally without any judicial review—annually, compared to a few hundred annually prior to the terrorist attacks of Sept. 11, 2001.
"They have become the weapon of choice by the administration to conduct fishing expeditions," Barr said about NSLs. "Its simply a matter of filling in a couple of blanks. Its an extraordinary power that has become ordinary behind closed doors."
The Senate had voted unanimously to return the FBI search standard to the pre-Patriot Act level, requiring that the government show a connection between the records and a suspect. The Senate also voted to modify the gag order that accompanies FBI demands and give recipients the right to challenge them.
The conferees eliminated those safeguards, but agreed to give NSL recipients the right to challenge a gag order. If the government asserts an interest in national security, however, the court must accept it as conclusive. Critics said this change could be a greater threat to civil rights because it creates an illusion of protection.
"It makes some nods to checks and balances and then takes things away," Graves said. "Youre given a right to challenge that means nothing."
The conferees bill would require the FBI to submit a statement of facts showing why records are relevant to an investigation. Making things tougher on businesses, however, it creates criminal penalties for anyone failing to comply with an NSL.
The House and Senate are poised to vote on the conference report Friday or Saturday, and critics said they remain hopeful that at least some Senators will resist the elimination of the safeguards that they had approved.