New York Times
May 19, 2005
WASHINGTON, May 18 - The Bush administration and Senate Republican leaders are pushing a plan that would significantly expand the F.B.I.'s power to demand business records in terror investigations without obtaining approval from a judge, officials said on Wednesday.
The proposal, which is likely to be considered next week in a closed session of the Senate intelligence committee, would allow federal investigators to subpoena records from businesses and other institutions without a judge's sign-off if they declared that the material was needed as part of a foreign intelligence investigation.
The proposal, part of a broader plan to extend antiterrorism powers under the law known as the USA Patriot Act, was concluded in recent days by Republican leaders on the Senate Select Committee on Intelligence in consultation with the Bush administration, Congressional officials said.
Administration and Congressional officials who support the idea said the proposal would give the F.B.I. a much-needed tool to track leads in terrorism and espionage investigations that would be quicker and less cumbersome than existing methods. They pointed out that the administrative subpoena power being sought for the F.B.I. in terror cases was already in use in more than 300 other types of crimes, including health care fraud, child exploitation, racketeering and drug trafficking.
"Why not provide that same tool to national security investigators as well?" asked an aide to the intelligence committee who was involved in the proposal, speaking on condition of anonymity because the issue will be discussed at a closed meeting scheduled for May 26. "There wasn't really a whole lot of cogent argument against it."
But word of the proposal on Wednesday generated immediate protests from civil rights advocates, who said that it would give the F.B.I. virtually unchecked authority in terror investigations, and the plan is likely to intensify the growing debate in Congress over the balance between fighting terrorism and protecting privacy rights.
"This is a dramatic expansion of the federal government's power," said Lisa Graves, senior counsel for the American Civil Liberties Union in Washington. "It's really a power grab by the administration for the F.B.I. to secretly demand medical records, tax records, gun purchase records and all sorts of other material if they deem it relevant to an intelligence investigation."
Kevin Madden, a spokesman for the Justice Department, said department officials welcomed the intelligence committee's efforts "to support provisions that enhance law enforcement's ability to combat terrorism effectively and are particularly heartened by their support for the USA Patriot Act."
Support for the idea among many Democrats and some Republicans in Congress is uncertain, and the Senate intelligence committee's plan to push the proposal could set off a struggle with the Senate Judiciary Committee. The Judiciary Committee has joint authority for oversight of foreign intelligence surveillance law - which would be expanded under the current proposal - but its members have shown some reluctance to expand the F.B.I.'s counterterrorism powers.
A Judiciary Committee aide said that Arlen Specter, the Pennsylvania Republican who leads the Judiciary Committee, wanted to study the intelligence committee's proposal closely to determine if it was warranted. "Being a former prosecutor, he understands what tools are needed for law enforcement, but he also understands that there are serious concerns about ensuring people's liberties," said the aide, who spoke on condition of anonymity for fear of provoking tensions with the intelligence committee.
With 16 provisions of the Patriot Act set to expire at the end of the year, the Bush administration has made the permanent extension of the law one of its top legislation priorities. But critics are seeking to scale back provisions in the law that they say are vulnerable to abuse, and more than 380 governmental bodies, including seven states, have adopted formal resolutions voicing concerns about the broad reach of the law.
One provision of the law that has generated perhaps more criticism than any other is Section 215, derided by critics as the "library records" provision. It allows the F.B.I. to go to a secret intelligence court to demand access to material from businesses and other institutions as part of intelligence investigations.
The Justice Department said in a newly declassified report last month that it had used the power 35 times since late 2003 to gain information on apartment leasing, driver's licenses, financial records and other data in intelligence investigations. But it stressed that it had not used the authority to date to demand records from libraries or bookstores or to get information related to medical or gun records - all areas of concern to critics.
Democrats and civil liberties advocates said on Wednesday that they were concerned that the F.B.I.'s expanded subpoena power under the intelligence committee's proposal would render obsolete the limited safeguards under Section 215. While that provision requires the Justice Department to receive the approval of the secret intelligence court before demanding records, the administrative subpoenas under the new proposal would not.
"This all comes down to not wanting an F.B.I. agent to have to go to a prosecutor and then the court to get formal approval for a subpoena," said a Democratic Congressional official, who spoke on condition of anonymity because the intelligence committee's proposal is still considered confidential. "This becomes a substitute."
But supporters of the plan said they had built in safeguards.
The F.B.I. could only issue the demands for records with the approval of the director or senior officials down through the rank of a special agent in charge, officials said. In addition, those given subpoenas would not automatically be bound to silence unless the F.B.I. determined that disclosure could threaten national security. The Justice Department would have to report twice a year on its use of the power, and the law would be amended to specify that material must be "relevant" to a foreign intelligence investigation.