Jon Kyl, August 1, 2005

Last month the Senate Judiciary Committee, on which I sit, unanimously approved legislation to reauthorize provisions of the USA Patriot Act that are due to "sunset," or expire, at the end of this year.

Passed in response to the September 11, 2001 terrorist attacks, the USA Patriot Act updated federal law in many areas where it was either simply inadequate to begin with, or rendered obsolete by the nature of modern terrorism and advances in technology. Rules written in the era of rotary telephones were woefully inadequate against al Qaeda’s exploitation of cell phones, voice mail and the Internet. Criminal penalties for terrorist violence were often more lenient than those for simple assault. It was even unclear whether providing expert advice and assistance to attackers - for example, helping to weaponize anthrax - was illegal.

The Patriot Act provided law enforcement and intelligence agencies with the new and better legal tools they need to deal with a new kind of adversary. One example: a streamlined process for obtaining search warrants and phone taps in multiple jurisdictions, making it easier to track suspects who are constantly on the move.

The results speak for themselves. For example, after the act became law (six weeks after the fall of the Twin Towers), four different terrorist cells were broken up in Buffalo, Detroit, Seattle, and Portland. The Justice Department charged hundreds of defendants with criminal offenses as a result of post-9/11 terrorism investigations. And no attack has occurred on our soil.

To allow effective measures like those in the Patriot Act to expire would deny our law enforcement officials the tools they need to do their jobs.

Last month’s unanimous committee vote was the result of a compromise that included both the Justice Department’s top priorities for updates to the law as well as modifications designed to assuage concerns about civil liberties. Among other provisions, the reauthorization bill:

• Removes a cumbersome and outdated requirement that the Justice Department report to a court whenever information derived from intelligence surveillance is later used in a criminal prosecution.

• Standardizes the requirements for obtaining a subpoena for intelligence investigators to monitor a suspect’s incoming and outgoing Internet usage. The original bill set a higher threshold for such subpoenas than current law requires for garden-variety criminal offenses, which made no sense.

• Removes requirements that detailed information about the use of particular intelligence tools be made public. Use of these tools already is reported in classified form to the Senate and House Intelligence Committees. Field agents expressed concern that revealing specific information about some of these infrequently used tools could tip off terrorists to ongoing investigations.

• Makes permanent, at my request, temporary improvements in a separate statute passed last year that make it a crime to knowingly provide any aid to a terrorist group. Specifically, the bill broadens the definition of such "aid," and clarifies several terms in the statute in order address civil liberties concerns.

• Clarifies that a delay in giving notice that a judicial search warrant has been executed is presumptively reasonable for seven days, and that further delays must be justified by the facts of the case.

• Specifies that intelligence subpoenas of business records must be relevant to the associations or activities of a suspected terrorist or foreign agent. This provision conforms to current practices, while alleviating concerns about the possibility that anti-terror investigators might conduct "fishing expeditions" of business records.

Senator Jon Kyl, a Republican, represents Arizona in the U.S. Senate. He serves on the Senate Judiciary Committee, the Finance Committee, and the Energy and Natural Resources Committee.