Can Bush carry the day?

CNET's Declan McCullagh explains why the president may be on a collision course with his own party over the future of the Patriot Act.

An expected vote on the Patriot Act this week will test whether Congress has the political fortitude to stand up to President Bush.

Key portions of the vast law, speedily enacted after the Sept. 11, 2001, attacks, are set to expire at the end of 2005. The president and his Justice Department, of course, want those portions to be made permanent.

"The terrorist threats against us will not expire at the end of this year, and neither should the protections of the Patriot Act," Bush said in a speech last week at the FBI's training academy in Quantico, Va.

Even though a core group of civil libertarians, mainly Democrats, prefer more privacy protections, they don't have enough votes to do it themselves. That leaves the decision in the hands of the Republican congressional majority, which so far has been remarkably hesitant to challenge Bush on nearly any topic.

Shrinking Patriot Act?

Most of the Patriot Act will not automatically expire. A sampling of the 16 sections that are scheduled to disappear on Dec. 31:

Sec. 202: Computer hacking is a "predicate offense" permitting police to seek certain types of wiretaps.

Sec. 203: Federal police can share information gleaned from a wiretap or a Carnivore-like surveillance device with spy agencies. Previously there was no explicit authorization for such data sharing.

Sec. 212: Internet providers and other communications services can divulge information to police more readily. Customer records and other data may be legally handed over to police in an emergency.

Sec. 215: Secret court orders can be used to obtain records or "tangible items" from any person or organization if the FBI claims a link to terrorism. The unlucky recipient of the secret order is gagged; disclosing its existence is punished by a prison term. Librarians are especially concerned.

Sec. 217: Computer service providers may eavesdrop on electronic trespassers legally. Police can be authorized to "listen in" on what's happening on the provider's network.

The latest results have been mixed. Last week, two House of Representatives panels voted to make almost all of the 16 expiring sections of the law permanent.

On the other hand, some senators have been more willing to risk a confrontation with the White House.

Sen. Arlen Specter, the Pennsylvania Republican who heads the Judiciary committee, is backing a proposal that would also affix nearly all of the 16 sections into the law books permanently. Joining him are Dianne Feinstein, a California Democrat, and Jon Kyl, an Arizona Republican.

What's drawing the ire of the Justice Department are other portions of Specter's proposal.

They would increase judicial oversight of the often-shadowy world of FBI and Homeland Security investigations, curb intelligence gathering on U.S. citizens, and make it more difficult for police to conduct "secret searches" of homes and delay notifying the owner for months or years. Also, the number of "secret searches" for the previous year would have to be reported to Congress every April.

Secret "NSLs"
Another section of Specter's bill would improve privacy protections for customers of Internet service providers, Web-based e-mail services and phone companies.

Right now, federal law says that those companies must "comply with a request for subscriber information and toll billing records" made by the FBI. Disclosing the existence of such a secret "national security letter" request--which can unearth home addresses, lists of telephone calls made, e-mail subject lines and logs of Web sites visited--is forever prohibited.

Such a blanket prohibition violates free-speech rights, U.S. District Judge Victor Marrero ruled in September.

The Specter bill would rewrite the rules for national security letters by explicitly permitting the recipient to challenge them in court. Judges would be able to authorize disclosure of the letter "if there is no reason to believe" national security or a criminal investigation would be harmed.

Some senators have been more willing to risk a confrontation with the White House.

These are extraordinarily modest changes. Specter and his two fellow senators are not proposing to repeal the Patriot Act, and they're even going so far as to say that almost all of it should become permanent. All they're doing is tweaking the law and requiring more oversight by judges and Congress.

Nevertheless, the Bush administration is crying foul.

One unnamed Senate aide complained to The New York Times that the Justice Department was "freaked out" about increased oversight of its investigative activities. When CNET spoke with the Justice Department on Friday, a representative said it was still reviewing the different bills and would have a position statement ready this week.

Now the question is whether our elected representatives will take the risk of opposing the Bush administration's breathtakingly broad request for secrecy. At the very least, the House leadership should permit Specter's mild proposal to be voted on as an amendment during the floor debate.

Don't bet on it. Political courage is in short supply in Washington, D.C.

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