Bush and Congress Converge on Antiterrorist Legislation

Surveillance laws to be revamped

Washington, 17 October 2001–Attempts in recent years to materially strengthen U.S. surveillance powers–by means, for example, of a Clipper chip enabling law enforcement authorities to decrypt encoded messages–generally were doomed to endless debate and quiet deaths. All that changed abruptly on 11 September, with the terrorist attacks on the Pentagon and World Trade Center.

Within the span of a month, the Bush administration, the Senate, and the House of Representatives had introduced, negotiated, and enacted legislation expanding law enforcement’s powers in conducting surveillance. With the House bill’s passage on 12 October, it was a foregone conclusion that the House and Senate versions would be reconciled and that the president would sign a final bill by the time this issue reached readers.

Just eight days after the attacks, Attorney General John Ashcroft sent draft legislation to Congress proposing significant changes to current laws covering domestic and foreign surveillance. The bill allowed wiretapping warrants and subpoenas for electronic records to apply across all jurisdictions, and expanded the powers granted under the Foreign Intelligence Surveillance Act of 1978 to apply to American citizens as well as foreigners.

Meanwhile, House Judiciary chairman F. James Sensenbrenner Jr. (R-Wis.) and Representative John Conyers Jr. (D-Mich.) introduced the PATRIOT Act, standing for Provide Appropriate Tools Required to Intercept and Obstruct Terrorism. The bill went through the House Judiciary Committee with unanimous assent, but with several restrictive amendments added. Those included an allowance for lawsuits against law enforcement officials who leak information obtained in a wiretap, and a limit to so-called forum-shopping by prosecutors seeking wiretap orders. At the last minute, however, the House leadership substituted a version almost identical to the Senate’s bill and got it passed by a vote of 337 to 79.

The House bill even so differs significantly from the Senate version, in that it has a sunset provision, ending special surveillance powers on 31 December 2004.

The Senate’s version–the Unifying and Strengthening America or USA Act– passed 11 October with just one dissenting vote, by Senator Russ Feingold (D-Wis.), who had introduced several amendments but without success. One would have required officials to ascertain that the actual target of a roving wiretap was using the tapped equipment; another would have ensured that protection for medical and educational records would not be waived.

The proposed legislation troubled civil liberties groups and privacy advocates. Organizations such as the American Civil Liberties Union, the Electronic Frontier Foundation, and the Center for Democracy and Technology urged legislators to slow down and deliberate on possible unintended consequences of the legislative language. Of particular concern to such organizations was the potential blurring of the distinction between domestic law enforcement and foreign intelligence surveillance, the broad definitions of terrorism in the bills, and the diminished role they give the judiciary.

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