From the NY Times:

Bush Seeks to Expand Access to Private Data



By ERIC LICHTBLAU

   

ASHINGTON, Sept. 13 — For months, President Bush's advisers have assured a skittish public that law-abiding Americans have no reason to fear the long reach of the antiterrorism law known as the Patriot Act because its most intrusive measures would require a judge's sign-off.

But in a plan announced this week to expand counterterrorism powers, President Bush adopted a very different tack. In a three-point presidential plan that critics are already dubbing Patriot Act II, Mr. Bush is seeking broad new authority to allow federal agents — without the approval of a judge or even a federal prosecutor — to demand private records and compel testimony.

Mr. Bush also wants to expand the use of the death penalty in crimes like terrorist financing, and he wants to make it tougher for defendants in such cases to be freed on bail before trial. These proposals are also sure to prompt sharp debate, even among Republicans.

Opponents say that the proposal to allow federal agents to issue subpoenas without the approval of a judge or grand jury will significantly expand the law enforcement powers granted by Congress after the attacks of Sept. 11, 2001. And they say it will also allow the Justice Department — after months of growing friction with some judges — to limit the role of the judiciary still further in terrorism cases.

Indeed, Senator Arlen Specter, Republican of Pennsylvania, who is sponsoring the measure to broaden the death penalty, said in an interview that he was troubled by the other elements of Mr. Bush's plan. He said he wanted to hold hearings on the president's call for strengthening the Justice Department's subpoena power "because I'm concerned that it may be too sweeping." The no-bail proposal concerns him too, the senator said, because "the Justice Department has gone too far. You have to have a reason to detain."

But administration officials defended Mr. Bush's plan. Even though the administration is confident that the United States is winning the war on terrorism, they said, they have run into legal obstacles that need to be addressed.

"We don't want to tie the hands of prosecutors behind their backs," said Mark Corallo, a Justice Department spokesman, "and it's our responsibility when we find weaknesses in the law to make suggestions to Congress on how to fix them."

In announcing his plan on Wednesday, Mr. Bush said one way to give authorities stronger tools to fight terrorists was to let agents demand records through what are known as administrative subpoenas, in order to move more quickly without waiting for a judge.

The president noted that the government already had the power to use such subpoenas without a judge's consent to catch "crooked doctors" in health care fraud cases and other investigations.

The analogy was accurate as far as it went, but what Mr. Bush did not mention, legal experts said, was that administrative subpoenas are authorized in health care investigations because they often begin as civil cases, where grand jury subpoenas cannot be issued.

The Justice Department used administrative subpoenas more than 3,900 times in a variety of cases in 2001, the last year for which data was available. The subpoenas are already authorized in more than 300 kinds of investigations, Mr. Corallo said.

"It's just common sense that we should be able to use this tool against terrorists too," he said. "It's not a matter of more power. It's the fact that time is of the essence and we may need to act quickly when a judge or a grand jury may not be available."

Officials could not cite specific examples in which difficulties in obtaining a subpoena had slowed a terrorism investigation.

But Mr. Corallo gave a hypothetical example in which the F.B.I. received a tip in the middle of the night that an unidentified terrorist had traveled to Boston. Under Mr. Bush's plan, the F.B.I., rather than waiting for a judicial order, could subpoena all the Boston hotels to get registries for each of their guests, then run those names against a terrorist database for a match, he said.

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These guys worry me seriously....

A