Senate Judiciary Committee Holds Hearing on PATRIOT Act

April 5, 2005. The Senate Judiciary Committee held a hearing titled "Oversight of the USA PATRIOT Act". The witnesses were Attorney General Alberto Gonzales and FBI Director Robert Mueller.

Both submitted written statements, and read shorter opening statements. See, longer written statement of Gonzales and longer written statement of Mueller.

The House and Senate have just returned from their two week spring recess, and begun in earnest the process of re-examining the USA PATRIOT Act. This is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was enacted after the terrorist attacks of September 11, 2001 by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

There are sixteen sections of Title II, which cover electronic surveillance, information technology, and searches and seizures, that are set to sunset on December 31, 2005. These sections of the PATRIOT Act modified numerous sections of the criminal code and the Foreign Intelligence Surveillance Act (FISA).

President Bush wants to extend all of the sunsetting provisions. See, story titled "Bush Seeks Extension of Sunsetting Provisions of the PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,077, February 15, 2005.

The Senate Judiciary Committee held the first of two public hearings on April 5. The House Judiciary Committee will hold the first of many public hearings on April 6.

There are several developments.

First, the Bush administration has softened its position. During the 108th Congress former Attorney General John Ashcroft took the position that none of the provisions of the PATRIOT Act should be sunsetted or rolled back, and that proponents of sunsetting these provisions were misguided or misinformed. President Bush gave a series of speeches in quick succession last year in which he similarly defended the PATRIOT Act, and attacked its critics.

There is now a new Attorney General, Alberto Gonzales. He stated at the hearing that he supports certain limited changes to some provisions of the PATRIOT Act, and is willing to listen to proposals for further changes.

Second, there is a new Chairman of the Senate Judiciary Committee, Sen. Arlen Specter (R-PA). He is more supportive of modifications to the PATRIOT Act than his predecessor, Sen. Orrin Hatch (R-UT). Sen. Hatch defended and praised the Department of Justice (DOJ) and the PATRIOT Act at the hearing. Sen. Specter told Gonzales and Mueller at the hearing that "I think that there has to be some give on some of these issues."

Third, the Senate hearing revealed that some of the internet related provisions of the PATRIOT Act may not be among the priorities of the Senators on the Committee. Little was said about the PATRIOT Act's extension of pen register and trap and trace device authority to internet communications. Even less was said about the PATRIOT Act's sections regarding interception of computer trespasser communications and emergency disclosure of electronic communications.

Fourth, § 215 of the PATRIOT Act appears to be the most controversial issue in the minds of members of the Senate Judiciary Committee, and with critics of the Act. Many of the Senators spoke adamantly about § 215, either in support of it, or against it. This section pertains to access to business records under the FISA. The relevant statutory provisions do not reference library records, but no one disputes that they are covered. The American Library Association (ALA) has long been actively seeking repeal of § 215.

Fifth, the Bush administration supports some changes to § 215, while critics of § 215 argue that these changes do not go far enough.

Sixth, the Department of Justice (DOJ), which heretofore has released very little useful information about its use of various provisions of the PATRIOT Act, has in the last few days provided some previously undisclosed information.

Finally, on April 5 three Senators held a news conference to announce the reintroduction of the SAFE Act. Sen. Larry Craig (R-ID) and Sen. Richard Durbin (D-IL) are again sponsors of the legislation. One new development is that Sen. Ken Salazar (D-CO), who was first elected to the Senate in November of 2004, is now a sponsor.