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 greater authority to subpoena records 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, which give 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.
Since passage of the 2001 law, the FBI reportedly has been issuing about 30,000 national security letters annually, a hundred-fold increase since they first came into existence.
Last year, a federal judge in New York struck down a 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, a Georgia Republican, 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 yesterday and the bicameral committee's first meeting expected today.
The power to subpoena 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 more explicit 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, congressional aides said.
The Washington Post reported today that Jeff Lungren, spokesman for House Judiciary Committee Chairman James Sensenbrenner, R-Wis., "acknowledged that staff members had been negotiating over the Patriot Act but cautioned that lawmakers have not signed off on a final agreement."
Polls show that most Americans do not distinguish between the Patriot Act and the war on terror, and a majority knows little about the 4-year-old law. But the more Americans know about the act, the less they like it, according to a poll conducted in August by the Center for Survey Research and Analysis at the University of Connecticut.
The survey found, for instance that almost two-thirds of those polled, 64%, said they supported the Patriot Act. But only 43% supported the law's requirement that banks turn over records to the government without judicial approval.