The course that congressional leaders followed last week to extend controversial domestic spying powers of the USA Patriot Act was never animated on "Schoolhouse Rock" or taught in high school civics classes. A considerable stretch of the Patriot Act IIs path to law lay behind closed doors among a small group of lawmakers accompanied by advisers from the White House.
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 in 2001, last weeks secretive bout of law crafting added to the feelings of defenselessness that they say the act inspires. Manufacturers, banks, real estate companies, bookstores and other businesses succeeded earlier in the fall in persuading the Senate to restore some checks and balances to the FBIs powers, but that effort came head to head with 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, issued unilaterally without any judicial review—annually, compared with a few hundred annually prior to the terrorist attacks of 2001.
"They have become the weapon of choice by the administration to conduct fishing expeditions," said Bob Barr, a former Republican representative from Georgia, about NSLs. "Its simply a matter of filling in a couple of blanks. Its an extraordinary power that has become ordinary behind closed doors."
Senators unanimously voted this fall 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.
House and Senate conferees in closed sessions last week eliminated those safeguards, however. The conferees agreed to give NSL recipients the right to challenge a gag order, but if the government asserts an interest in national security, 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," said Lisa Graves, senior counsel for legislative strategy for the New York-based American Civil Liberties Union. "Youre given a right to challenge that means nothing."
The bill that conferees agreed to would require the FBI to submit a statement of facts showing why records are relevant to an investigation. Making things tougher on businesses, however, is that it created criminal penalties for anyone failing to comply with an NSL.
As the House and Senate prepared to vote on the conference bill late last week, three Republican and three Democratic senators—who authored the original Senate bill—threatened to stop the measure if civil rights safeguards were not returned to it.