WASHINGTON – House and Senate negotiators have struck a tentative deal on the expiring Patriot Act that would curb the FBI's investigative power and require the Justice Department to more fully report its secret requests for information about ordinary people.
Democrats and civil libertarians said that while the tentative deal makes some improvements, it doesn't address their chief concern: the curbing of FBI power to gather certain information by requiring the investigators to prove the subject's records are connected to a foreign agent or government.
"It gives a nod toward checks and balances without fixing the most fundamental flaws in the Patriot Act," said Lisa Graves of the American Civil Liberties Union.
The agreement, which would make most provisions of the existing law permanent, was reached just before dawn Wednesday. But by midmorning GOP leaders had already made plans for a House vote on Thursday and a Senate vote by the end of the week. That would put the centerpiece of President Bush's war on terror on his desk before Thanksgiving, a month before more than a dozen provisions were set to expire.
Officials negotiating the deal described it on condition of anonymity because the draft is not official and has not been signed by any of the 34 conferees.
Any deal would mark Congress' first revision of the law passed a few weeks after the Sept. 11 terror attacks. In doing so, lawmakers said they tried to find the nation's comfort level with expanded law enforcement power in the post-9/11 era — a task that carries extra political risks for all 435 members of the House and a third of the Senate facing midterm elections next year.
For Bush, too, such a renewal would come at a sensitive time. With his approval ratings slipping in his second term, the president could bolster a tough-on-terrorism image.
The tentative deal would make permanent all but a handful of the expiring provisions, the sources said. Others would expire in seven years if not renewed by Congress. They include rules on wiretapping, obtaining business records under the Foreign Intelligence Surveillance Act (FISA) and new standards for monitoring "lone wolf" terrorists who may be operating independent of a foreign agent or power.
By noon, House Democrats on the panel were issuing complaints about the seven-year expiration, arguing that since the House had endorsed the four-year expiration dates enacted as part of the Senate bill, the three provisions should "sunset" at four years, not seven. They also complained that Republican negotiators shut them out of the last phase of talks, a charge Republicans deny.
The draft also would impose a new requirement that the Justice Department report to Congress annually on its use of national security letters, secret requests for the phone, business and Internet records of ordinary people. The aggregate number of letters issued per year, reported to be about 30,000, is classified. Citing confidential investigations, the Justice Department has refused lawmakers' request for the information.
The 2001 Patriot Act removed the requirement that the records sought be those of someone under suspicion. As a result, FBI agents can review the digital records of a citizen as long as the bureau can certify that the person's records are "relevant" to a terrorist investigation.
Also part of the tentative agreement are modest new requirements on so-called roving wiretaps — monitoring devices placed on a single person's telephones and other devices to keep a target from evading law enforcement officials by switching phones or computers.
The tentative deal also would raise the threshold for securing business records under FISA, requiring law enforcement to submit a "statement of facts" showing "reasonable grounds to believe" the records are relevant to an investigation.