Sunsets and the Patriot Act

When the Patriot Act was passed in the first hectic weeks after 9/11, Congress, perhaps conscious of its haste, “sunseted” large parts of the law, meaning those provisions would automatically expire in five years unless Congress renewed them.

The sunset is the end of this year, and those provisions are now up for renewal. Even after five years of experience with the act, there is no broad agreement on whether it is a truly useful tool in the war on terrorism or whether it is an unnecessary intrusion into privacy and civil liberties.

The most controversial part of the act, the so-called “library provision,” may be the least used, if the Justice Department is to be believed. That provision allows the feds to compel librarians to secretly turn over the records of their patrons. Less noticed is that this provision applies to other organizations, too, like businesses and hospitals. Congress is likely to tighten up on that provision by allowing the search warrants to be challenged.

Congress should also crack down on the use of the material-witness provision as a pretext to hold U.S. citizens incommunicado and the use of minor immigration violations to hold aliens indefinitely.

One provision that should not be in the act is a new proposal to give the FBI the power to issue “administrative subpoenas.” The FBI would be able to issue these subpoenas on its own authority, without the approval of a judge or grand jury, to compel the production of all kinds of personal records. And the subpoenas could be issued and served in secret. If this passes, it will be hard to say that the Fourth Amendment, the right of people to be secure in their “houses, papers and effects,” still means anything.

Once again, the Patriot Act is being considered in the emotional aftermath of a terrorist incident, the London bombings, and it must be renewed in some haste, the legislative calendar being foreshortened by the need to fill a Supreme Court vacancy.

The House would make the expiring provisions of the act permanent. The Senate would retain the sunsets, meaning the law would be revisited again in five years. Given the confusion and disagreement surrounding the law, the sunsets offer the best opportunity for one day shedding light on the Patriot Act.

(Contact Dale McFeatters at McFeattersD(at)