After 9/11, a swift and powerful change in the law of the land

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BY J. SCOTT ORR
STAR-LEDGER WASHINGTON BUREAU
Sunday, July 10, 2005

WASHINGTON -- It was half past noon on Sept. 19, 2001, when a small phalanx of administration officials strode down a second-floor hallway in the Capitol building, headed for a secret meeting in a room nearly hidden behind a bank of elevators. Inside, they faced a group of the nation's most powerful lawmakers.

Carrying a 40-page document labeled "The Anti-Terrorism Act of 2001," the officials had come to make a case for providing federal investigators with new tools to fight terrorism on American soil. They were led by then-Attorney General John Ashcroft, who wasted little time getting to the point.

Accept this bill in its entirety, he demanded, and pass it within a week. The reception from leading members of Congress, Republican and Democrat alike, was chilly. Only eight days had passed since the terrorist attacks of 9/11, but no one in the room seemed inclined to pick up the gauntlet Ashcroft had thrown down.

Dick Armey, a hard-boiled Texas conservative who at the time was the GOP majority leader in the House, remembers being unimpressed by arguments from the Justice Department's "Harvard- trained lawyers" -- and he told them so.

"Like this stuff is new?" one of the lawyers replied. "We've been asking for it for a long time."

"I know you have," Armey shot back, "and we've been saying 'no' for some time."

The meeting was adjourned with no commitments made.

***

The debate over the USA Patriot Act that began on that warm, overcast day in the nation's capital would quickly become an extraordinary Washington power struggle, pitting a White House determined to expand its arsenal of anti-terrorism weapons against a coalition of balky lawmakers and special interest groups committed to protecting civil liberties.

The public side of the process was dominated by the horrific aftermath of the 9/11 attacks, by the swift buildup for war in Afghanistan and by fresh threats like the anthrax scare that briefly paralyzed Capitol Hill. The only substantive public hearings on the act, held by the House Judiciary Committee, were largely overlooked amid the cascade of events.

But the important battles took place in backrooms across Washington, as the Republican-controlled House and the Democrat- controlled Senate negotiated separately with the Justice Department. The meetings were marked by strong-arm tactics and a fearful sense that the world, quite suddenly, was a far more dangerous place.

When President Bush signed the Patriot Act on Oct. 26, just 45 days after 9/11, the bill looked much like the document that Ashcroft and his colleagues had presented to lawmakers on Sept. 19. The result infuriated many members of Congress, who believed they had been sidelined, or even betrayed, as the final deal was sealed.

Among other things, the Patriot Act dramatically expanded the information federal investigators can access and the number of officials who can see it. It also changed some rules regarding the detention of immigrants. Many of the act's key provisions are scheduled to expire at the end of this year, unless Congress decides to renew them.

Hearings on the expiring provisions began in April and May, and just last month the House voted to deny funding for a federal program designed to monitor certain library records under the Patriot Act. Thursday's bombings in London have added a sense of urgency to the debate, as officials scramble to determine if similar attacks are planned here.

As the Dec. 31 deadline for renewal of the act approaches, a look back at how it was passed -- the frightening backdrop of events, the administration's lobbying strategy, the fear of delay that drove many members of Congress to pass a bill they barely understood -- offers unusual insights into the ongoing argument over what it should take to fight terror at freedom's edge.

***

The U.S. Department of Justice building sits on Pennsylvania Avenue, about halfway between the White House and the Capitol. The seven-story structure occupies an entire block in the heart of Washington. Thirty-foot-tall metal doors flank the main entrance, below an inscription that reads, in part, "Justice is the great interest of man on earth."

The nation's top law enforcement officer at the time of the 9/11 attacks was Ashcroft, a short, stocky man closing in on 60 who had brought to the Justice Department the same religious conservatism that defined his long career as a senator from Missouri.

Ashcroft is by all accounts a serious, stubborn man, the son of a preacher, and his only known diversion is playing the piano and singing gospel tunes. He had lost his Senate seat in the 2000 elections when his opponent died in a plane crash late in the campaign and his widow replaced him on the ballot.

In the hours after the attacks on the World Trade Center and the Pentagon, Ashcroft received a clear mandate from President Bush, the man who had rescued him from political purgatory: Do everything possible to prevent this from happening again.

For the nuts and bolts of the government's legislative plan, Ashcroft turned to Viet Dinh, the assistant attorney general in charge of the Office of Legal Policy at the Justice Department.

Dinh, a refugee from Vietnam with disobedient hair, is a man who seems to be in a perpetual hurry, speaking in a slightly accented staccato. His suite of offices on the fourth floor of the Justice Department building quickly became headquarters for a group of legislative draftsmen.

In the days that followed, Dinh and his team got very little sleep as they sought input from every lawyer and investigator in the department, including the FBI. When Dinh did doze off for a few hours, it was on the leather couch in his office.

"We stayed at the office and asked a whole bunch of people to stay at the office until we got the job done," Dinh said. "We sent e- mails out to the field and asked all the investigators and prosecutors to send us in suggestions and ideas regarding the response that we need to take at this time."

As the e-mails popped up on computer screens in Dinh's command center, the team members weighed each one by a set of standards they had developed at the outset.

"One, is this operationally necessary?" he recalled. "Two, is this wholly consistent with the Constitution and enabling statutes of the Department of Justice? Three, are there any unintended consequences ... of the policy and, if there are, how can we put in safeguards ... to minimize those negative consequences, including effects they may have on civil liberties?"

The plan that Dinh and his colleagues drew up was complex, offering technical amendments to existing law in some areas and creating broad new powers in others. It gave the government new access to business, library, medical and shopping records, allowed for greater access to voice and data communications, authorized the widespread sharing of information gathered by criminal investigators and spies, and changed detention policies for noncitizens.

A week after he had shut himself in his office, Dinh joined Ashcroft for the Sept. 19 trip to Capitol Hill. Little did he know, as he walked down the hallway toward that initial meeting with lawmakers, that the hardest work was still ahead.

***

As word of the Justice Department's proposal rippled across Washington's concentric circles of influence, it came, eventually, to Laura Murphy, the head of the lobbying office at the American Civil Liberties Union.

Murphy is known for her stealthy style. She is soft-spoken and exceedingly polite -- traits that mask an ideological aggressiveness and hard-wired dedication to the defense of civil liberties.

By that time, Murphy had already been working round-the- clock to assemble a diverse coalition willing to fight any anti-terror legislation that she viewed as posing threats to civil liberties. She and her chief aide, Gregory Nojeim, had begun plotting strategies on a legal pad in a luncheonette at a Dupont Circle hotel just hours after 9/11 attacks.

"Greg and I looked at each other, and I don't know who said it, but we said, 'We're going to have another anti-terrorism bill,'" Murphy recalled.

The ACLU headquarters, located at the time in a white stucco building on Maryland Avenue, a few blocks from the Capitol, had become home base for an unlikely collection of groups, more than 100 in all, concerned about the implications of the pending bill.

Among them: the conservative Eagle Foundation, the Center for Democracy and Technology, the American Conservative Union, the libertarian CATO Institute and the National Rifle Association.

Civil liberties can mean different things to different people but what concerned all of the groups was the expanded power of federal investigators to monitor American citizens.

As their plan took shape, Murphy called on allies who participated in a similar fight over anti- terrorism legislation that was passed in 1996 after the Oklahoma City bombing. At that time, a similarly ambitious law enforcement proposal was trimmed back by a diverse coalition of interest groups and lawmakers.

One of those lawmakers was Bob Barr, the conservative House Judiciary Committee member from Georgia who rarely agrees with the ACLU's mostly liberal agenda. Another ally on the Judiciary Committee was Bobby Scott, a liberal Democrat from Virginia with a reputation as a leading voice in Congress on civil rights.

"We knew that time was of the essence," Barr recalled. "We knew the administration would be pushing very hard for swift enactment with either no or minimal changes. We wanted to make sure our concerns, particularly those that reflected input from the broad spectrum of outside groups, would be a part of the mix from the very beginning."

On Sept. 21, two days after the Justice Department unveiled its proposal, Barr, Scott and fellow Judiciary Committee members Chris Cannon (R-Utah), Jeff Flake (R- Ariz.), and Darrell Issa (R-Calif.) gathered with representatives of the ACLU and other groups in a nondescript committee room in the Longworth House Office Building.

The session resulted in a letter to the Judiciary Committee's Republican chairman, James Sensenbrenner of Wisconsin, the committee's ranking Democrat, John Conyers of Michigan, and others. The letter rated the various sections of the bill on a scale of I (do not appear to raise significant concerns) to IV (unacceptable as written).

Group I items included data- sharing among federal agencies, while group IV items included so- called "sneak and peek" searches, which allow authorities to search a home or other location without notifying the target for a period of time.

"We do not believe that we will be serving law enforcement, the intelligence community, or the American public if we move as quickly as we are being urged by the (Justice) Department," the group wrote.

***

End Part I