WASHINGTON — The Obama administration promised Congress on Tuesday to negotiate stronger privacy protections for Americans under terrorism surveillance but insisted on retaining current authority to track suspects and obtain records.
Liberals on the House Judiciary Committee were left unsatisfied, clearly wanting the administration to go further and pledge to curb what they consider abuses of the Bush administration.
They repeatedly insisted that the law be rewritten to require better justification for wiretaps and subpoenas, and Committee Chairman John Conyers, D-Mich., even compared the Obama administration's position so far to that of the Bush administration.
"You sound like a lot of people who came over from DOJ (the Department of Justice) before," Conyers told Todd Hinnen, deputy assistant attorney general.
Congress is starting to consider changes in three expiring provisions of the USA Patriot Act, a counterterrorism law initially passed after the Sept. 11, 2001 attacks.
These three provisions require the government to seek permission from a special foreign surveillance court for subpoenas and surveillance. The Bush administration, while using the court, also had the National Security Agency – without warrants – eavesdrop on Americans and others inside the United States to search for terrorist activity. That program ended before Bush left office.
Hinnen told a Judiciary subcommittee, "We are ready and willing to work with members on any specific proposals" that would provide "effective investigative authorities and protects privacy and civil liberties."
Conservative lawmakers want to reauthorize the expiring provisions without changes, insisting the statute helped prevent attacks.
"All of this hyperbole" about trampling civil liberties "has not been borne out in litigation. I don't feel we should break something that doesn't need fixing," said Rep. F. James Sensenbrenner Jr., R-Wis.
Conyers launched a tirade against a Bush administration incident described in a heavily redacted report from the Justice Department inspector general.
The report said that in 2006, the FBI twice asked a special foreign surveillance court for an order seeking "tangible things" in a counterterrorism case.
The court denied the request both times, citing the danger to First Amendment rights. The FBI then skirted the court's refusal and continued the investigation using three National Security Letters, which are basically subpoenas not approved by a court.
When Hinnen initially said he could not discuss the case, Conyers railed that news stories described the incident and asked whether the Justice Department official was questioning the inspector general's account.
Hinnen responded that abusive policies have been fixed since the Obama administration took over.
Three provisions of the Patriot Act are expiring. They provide:
_Roving, court approved wiretaps that allow surveillance on multiple phones. Law enforcement is not required to ascertain that a suspected foreign terrorist is actually using the phones being tapped.
_That businesses produce "any tangible things" at the FBI's request.
_Authority to conduct surveillance against a so-called "lone wolf," a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.
Rep. Jerrold Nadler, D-N.Y., asked Hinnen why the administration couldn't conduct some of its surveillance and subpoena requests under criminal laws that provide better protections to those under investigation.
Hinnen responded that secret grand jury material later becomes public in a criminal prosecution. In a counterterrorism operation, where prosecution may not be the goal, the classified material would remain secret, he added.
Kenneth Wainstein, former assistant attorney general in the National Security Division, said it was important to continue the expiring provisions that were "born of the harsh lesson of 9/11."
"They have been effectively incorporated into our counterterrorism operations with due regard for privacy and civil liberties and with extensive oversight" by the nation's foreign surveillance court and Congress, he said.
Michael German, policy counsel for the American Civil Liberties Union, said Congress needs to "restore effective checks on executive branch surveillance powers and to prohibit unreasonable searches and seizures of private information without probable cause ... "
Meanwhile, Democratic senators working on revisions to the law introduced legislation to revise the Patriot Act, with tougher tests for the government's surveillance and records requests to a special court.
The bill by Chairman Patrick Leahy of the Judiciary Committee, and two other committee Democrats, would extend the modified provisions for four years. It also would place a four-year time limit on use of National Security Letters.