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Legislative Battle Predicted for Patriot II

The Department of Justice needs expanded powers to fight terrorism more effectively, say Bush administration officials, but many in Congress are already rethinking the Patriot Act (search) and are hesitant to widen government powers.

"The more people are informed of the Patriot Act, the more concerned they are,” said Mark Warbis, a spokesman for Rep. Butch Otter, R-Idaho, (search) one of the most vocal opponents of the Patriot Act.

Lawmakers in both parties are already pursuing restrictions on the Patriot Act. Several bills have passed the House and are being debated in the Senate. On the Senate side, Sens. Larry Craig, R-Idaho, Richard Durbin, D-Ill., and Russell Feingold, D-Wisc., have co-sponsored legislation to increase the safeguards for the use of search warrants.

The Bush administration has been pushing to expand DOJ authority, arguing that while the Patriot Act provides vital tools for terrorist interdiction, more powers are needed.

“Under current federal law, there are unreasonable obstacles to investigating and prosecuting terrorism, obstacles that don't exist when law enforcement officials are going after embezzlers or drug traffickers,” President Bush said in a speech last month at the FBI Academy in Quantico, Va.

Bush is seeking three broad new powers in proposed legislation that critics have labeled Patriot II — the ability of law enforcement to obtain administrative subpoenas without prior review by a grand jury; the ability to hold accused terrorists, like those charged with some drug crimes, without bail; and the power to make terrorist crimes that result in death eligible for the death penalty.

“You need to have every tool at your disposal to be able to do your job on behalf of the American people,” Bush told the audience of FBI trainees and agents. “The House and the Senate have a responsibility to act quickly on these matters; untie the hands of our law enforcement officials so they can fight and win the war against terror."

Warbis said Otter believes the Department of Justice will face more resistance from Congress than it did when it sought the original Patriot Act powers, which passed the House 357-66 and the Senate 98-1 in votes taken in the weeks following the Sept. 11, 2001, terror attacks.

Already, lawmakers have given a chilly reception to draft legislation leaked by the Justice Department in February. In June, the Vital Interdiction of Criminal Terrorist Organizations Act (search), or Victory Act, sponsored by Sen. Orrin Hatch, R-Utah, and four other Republicans, was circulated in Washington but has not been pushed through the legislative process.

Proponents say new rules in Patriot II, a term at which advocates of increased powers cringe,  would not assault personal freedom and are already available to prosecutors in other criminal cases.

“It's not revolutionary. It simply gives law enforcement the same tools against terrorists that are used [with success] against the mafia,” said Eli Lehrer, a homeland security expert for a Fortune 500 company, who argued that administrative subpoenas are subject to oversight by a counterintelligence court or other special court, but not a grand jury.

“The extremists of left and right have succeeded in getting a sizable portion of the American population riled up over an innocuous and necessary law. The bulk of the American people, however, understand we are at war and are willing to support commonsense laws like this one,” Lehrer added.

Critics acknowledge that Patriot II may contain some useful provisions, but worry about expanding rules that they say are already inappropriately applied toward suspected drug dealers and mobsters.

For instance, said Timothy Lynch, director of CATO Institute’s (search) Project on Criminal Justice, administrative warrants give the Justice Department too much unchecked power, whether applied to terrorism or drug cases.

“That was an egregious error," Lynch said of the law allowing administrative warrants. "It is not something to be expanded.”

Lynch added that Congress needs to spend more time vetting the legislation rather than scrambling to pass it the way it did the Patriot Act, later found to contain many disagreeable provisions.

“Congress should not rush these gigantic packages through. They should be broken down into smaller parts, that way, we’ll at least have some serious deliberation,” he said.

Lynch said it is hard to predict how the battle will shape up on Capitol Hill, but attention could shift away from the details if bad news strikes.

“If there’s another terrorist attack that could change the political environment immediately,” he said.

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