WASHINGTON – Congress is moving to curb some of the police powers it gave the Bush administration after the Sept. 11 terrorist attacks, including imposing new restrictions on the FBI's access to private phone and financial records.
A budding House-Senate deal on the expiring USA Patriot Act includes new limits on federal law enforcement powers and rejects the Bush administration's request to grant the FBI authority to get administrative subpoenas for wiretaps and other covert devices without a judge's approval.
Even with the changes, however, every part of the law set to expire Dec. 31 would be reauthorized and most of those provisions would become permanent.
Under the agreement, for the first time since the act became law, judges would get the authority to reject national security letters giving the government secret access to people's phone and e-mail records, financial data and favorite Internet sites.
Holders of such information — such as banks and Internet providers — could challenge the letters in court for the first time, said congressional aides involved in merging separate, earlier-passed House and Senate bills reauthorizing the expiring Patriot Act.
The aides spoke on condition of anonymity because the panel has not begun deliberations.
Under the 2001 law, the FBI reportedly has been issuing about 30,000 national security letters annually, a hundred-fold increase since the 1970s, when they first came into existence under the Foreign Intelligence Surveillance Act.
Last year, a federal judge in New York struck down the national security letter statute as unconstitutional because he said the law did not permit legal challenges to the letters or a gag rule on recipients of the letters. The administration has appealed.
Civil libertarians lauded the deal's preliminary terms, saying recent accounts of the FBI's aggressive use of national security letters have lent credibility to their call for caution.
"Without those checks and balances, there will be abuses," said former Rep. Bob Barr, R-Ga., of Patriots to Restore Checks and Balances.
The Bush administration contends there have been no abuses.
"In the four years since the passage of the USA Patriot Act there has not been a single verified abuse of the act's provisions, including in the department's own inspector general's report to Congress," said Justice Department spokesman Brian Roehrkasse.
Hashed out over two months by senior House and Senate aides, the preliminary terms still have to be approved by a panel of lawmakers from each chamber and then by the full House and Senate. The process is taking shape this week, with the appointment of House members to the panel on Wednesday and the bicameral committee's first meeting expected on Thursday.
The power to conduct wiretaps and install covert listening devices without court approval had been on the administration's wish list for more than a year but was never seriously considered by either chamber's Judiciary committee.
Both the House and Senate versions of a Patriot Act extension, debated over the summer, proposed giving the judiciary a role in national security letters. "The court may quash or modify a request if compliance would be unreasonable or oppressive," according to a summary by the Congressional Research Service. The Senate added more conditions: "or violate any constitutional or other legal right or privilege."
Some version of those curbs is expected to be passed as part of the compromise bill.
Less specific but looked upon favorably is a proposal to add a new restriction on evidence-gathering of classified material that would require investigators to return or destroy any materials that are not relevant to the probe, the congressional aides said.
Polls show that most Americans do not distinguish between the Patriot Act and the war on terror, and a majority knows little about the four-year-old law. But the more Americans know about the Patriot Act, the less they like.
A poll conducted in August by the Center for Survey Research and Analysis at the University of Connecticut showed that almost two-thirds of all Americans, 64 percent, said they support the Patriot Act. But only 43 percent support the law's requirement that banks turn over records to the government without judicial approval; 23 percent support secret searches of Americans' homes without informing the occupants for a period of time.