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GWEN IFILL: The post-9/11 U.S.A. Patriot Act is up for renewal. What parts of the anti-terror law should stay, and which should go? We begin our coverage tonight with portions of the debate today before the Senate Judiciary Committee. Kwame Holman has that.
KWAME HOLMAN: Just six weeks after the Sept. 11 terrorist attacks, Congress delivered to the president complex legislation that gave federal law enforcement officials expanded search-and-surveillance authority in an attempt to help prevent future attacks.
PRESIDENT GEORGE W. BUSH: This legislation is essential not only to pursuing and punishing terrorists, but also preventing more atrocities in the hands of the evil ones.
KWAME HOLMAN: And in reflection today before members of the Senate Judiciary Committee, Attorney General Alberto Gonzales said he considered the USA Patriot Act a success.
ALBERTO GONZALES: We acted with deliberate speed because, quite frankly, we were concerned about a second attack. But we acted with a great deal of care and deliberation because we all understood that while we needed to protect this country, we needed to do so in a way that was consistent with our values and consistent with the Constitution. And I think the Patriot Act reflects that balance.
KWAME HOLMAN: But a dozen provisions within the Patriot Act will expire at the end of this year unless Congress decides to reauthorize them. This morning, Vermont Democrat Patrick Leahy took some credit for that, recalling his work with Republicans in crafting the bill.
SEN. PATRICK LEAHY: In the final negotiating session, former House Majority Leader Dick Armey and I joined together to insist that we add a sunset for certain governmental powers that have great potential to affect the civil liberties of the American people. That’s why we’re here today because that sunset provision ensured that we would revisit the Patriot Act and shine some sunlight on how it’s been implemented.
KWAME HOLMAN: There has been no shortage of critics who have charged the Patriot Act has been used extensively to violate civil liberties in this country. That’s something these senators and their house counterparts will consider as they weigh possible changes to the Patriot Act. Seated today with FBI Director Robert Mueller, Attorney General Gonzales said he was anxious to participate.
ALBERTO GONZALES: I look forward to meeting with those both inside and outside of Congress who have expressed concerns about the act. But let me be clear that I will not support any proposal that would undermine our ability to combat terrorism effectively.
KWAME HOLMAN: One senator who has freely expressed his concern is Judiciary Committee Chairman Arlen Specter, a Republican. He’s currently undergoing chemotherapy treatment for Hodgkin’s Disease.
SEN. ARLEN SPECTER: The most noticeable effect has been the involuntary new hairstyling.
SEN. PATRICK LEAHY: I think it looks great.
SEN. ARLEN SPECTER: Well, Patrick, we’re practically tied at this point.
KWAME HOLMAN: Specter, however, said he was serious about what he thinks needs changing in the Patriot Act. He mentioned specifically section 215, which allows the FBI to search “books, records, papers, documents, and other items for an investigation to obtain foreign intelligence information.”
SEN. ARLEN SPECTER: Would you see any problem on specifically excluding, in a reauthorization of the Patriot’s Act, authority to obtain library or medical records?
ALBERTO GONZALES: Mr. Chairman, let me try to reassure the committee and the American people that the department has no interest in rummaging through the library records or the medical records of Americans. That is not something that we have an interest in. We do have…
SEN. ARLEN SPECTER: Does that mean you would agree to excluding them?
ALBERTO GONZALES: We do have an interest, however, in records that may help us capture terrorists. And there may be an occasion where having the tool of 215 to access this kind of information may be very helpful to the department in dealing with a terrorist threat.
The fact that this authority has not been used for these kinds of records means that the department, in my judgment, has acted judiciously. It should not be held against us that we’ve exercised, in my judgment, restraint. It’s comparable to a police officer who carries a gun for 15 years and never draws it. Does that mean that for the next five years he should not have that weapon because he’s never used it?
SEN. ARLEN SPECTER: Attorney General Gonzales, I don’t think your analogy is apt, but if you want to retain those records as your position, I understand.
KWAME HOLMAN: FBI Director Mueller added his insights.
ROBERT MUELLER: We’ve had investigations in which we have seen persons associated with terrorists groups go into libraries, use the library to communicate, or the computers in the library to communicate, draw up Jihadist literature, and the like. We have been fortunate not to have used 215 because we have had the cooperation of the libraries to date.
KWAME HOLMAN: But Illinois’ Dick Durbin responded, adding the concerns of the American Library Association.
SEN. DICK DURBIN: They believe for example that if an FBI field office believed an unidentified terrorist had checked out a book entitled “How to Build a Dirty Bomb” from the Chicago Public Library, that section 215 gives the government the authority to search the library records of hundreds of ordinary citizens in an attempt to identify the terrorist, catching in this net and sweeping in innocent people who have checked out books from the library never knowing that they would be swept up in the potential of finding a terrorist.
KWAME HOLMAN: Utah Republican Orrin Hatch used part of his time to challenge critics of the Patriot Act to produce some evidence of abuse.
SEN. ORRIN HATCH: They are hard-pressed to provide any documented abuses of the Patriot Act. We held, I think, some 24 hearings on this issue, and not one time have they been able to document an abuse.
KWAME HOLMAN: Wisconsin Democrat Russ Feingold raised issue with another part of the Patriot Act he says overreaches, commonly referred to as the “sneak-and-peek” provision.
Section 213 says: “Any warrant to search for or seize property or material that constitutes evidence of a criminal offense may be delayed if the court finds reasonable cause to believe that providing immediate notification of the warrant may have an adverse result.”
SEN. RUSS FEINGOLD: So when we’re discussing Section 213, Mr. Chairman, we’re talking for the most part about searches done to investigate crimes that have nothing to do with terrorism or espionage, right?
ALBERTO GONZALES: It can, but it also includes other kinds of crimes; that’s correct. 213.
SEN. RUSS FEINGOLD: There’s no inherent connection to terrorism…
ALBERTO GONZALES: That’s correct.
SEN. RUSS FEINGOLD: Vis-à-vis the power in section 213 of sneak and peek.
ALBERTO GONZALES: That is what Congress intended when I believe, when they drafted 213.
SEN. RUSS FEINGOLD: I’m glad we clarified that, because I think many people have a different calculation about the way – what they think should be permissible if we’re talking about terrorism investigations. So people should be clear: Section 213, sneak and peek, is in no way delimited to terrorist situations.
KWAME HOLMAN: Alabama Republican Jeff Sessions followed, arguing delayed notification of a search warrant always has been part of law enforcement procedure.
SEN. JEFF SESSIONS: Basically all it says is that historically you issue a report or an inventory of the search and you give that to the person once you conduct a search warrant contemporaneously with the completion of the search.
ROBERT MUELLER: Right.
SEN. JEFF SESSIONS: But the courts have upheld in the past — and it is an established principle of law enforcement since I was connected with the Department of Justice — that you could conduct a search under certain circumstances with court approval and delay notification to the person who’s being searched. Hasn’t that been true?
ROBERT MUELLER: Yes. It’s been around the country various courts have upheld that process over the years.
SEN. JEFF SESSIONS: So this act simply says we can do it when we’re investigating people that are trying to kill us, not just sell drugs on the streets.
ROBERT MUELLER: That, and it also regularizes the practice throughout the United States.
KWAME HOLMAN: Specific changes to the Patriot Act already are being proposed. This afternoon, Sen. Durbin, a Democrat, teamed with Idaho Republican Larry Craig to introduce new legislation called the Safe Act.
They say it’s purpose is to restore civil liberties protections the Patriot Act has put at risk, without removing law enforcement’s current surveillance powers.