Attorney General Alberto Gonzales and FBI Director Robert Mueller this week reaffirmed their strong support for congressional renewal of the 2001 Patriot Act.

Key provisions were made subject to a five-year “sunset” when the law was passed, and the debate over renewal comes when a brief bipartisan consensus about the need to strengthen the counterintelligence capabilities of the FBI, CIA, and other security and investigative agencies has eroded.

The Patriot Act involved important amendments to 15 statutes but was passed with little committee or floor debate. Only 16 of the law’s 150 provisions had sunset clauses. If they are not renewed, they will expire this December.

They include:

• Prosecutors sharing criminal wiretap information with intelligence agencies.

• Prosecutors sharing foreign intelligence information obtained in criminal investigations with intelligence agencies.

• Roving taps authorized by the Foreign Intelligence Surveillance Court (FISC).

• Emergency disclosures of email without a court order.

• Lowering standard for “pen registers” and trap and trace devices through FISC authorization.

• Expanded access to business, Internet provider and library records.

• Intercepting computer trespasser communications without court order.

• “Significant purpose” provision that facilitates sharing of evidence between criminal prosecutors and intelligence agencies.

• Nationwide service of search warrants for electronic evidence.

The Patriot Act has suffered some setbacks in court. For instance, in Humanitarian Law Project v. Ashcroft, a federal district court struck down the overbroad definition of “material support” to terrorist organizations.

A case submitted to FISC dealt with the section of the Patriot Act that provided that searches and surveillance could be authorized if intelligence gathering were a “significant purpose.” The court unanimously criticized the FBI for providing misleading information on 75 applications for eavesdropping authority during the Clinton administration and for doing the same after September 2001 in applications under the Patriot Act.

The Justice Department appealed the decision to the U.S. Foreign Intelligence Surveillance Court of Review (FISCR). This was the first appeal of a decision ever heard by the FISCR, since this was the first case at the FISC level that the government had lost. In its decision, the appeals court overturned the FISC decision and ruled that the Justice Department has broad discretion to track suspected terrorists and spies because under the circumstances such actions meet the constitutional test of “reasonableness.”

In 2003, Republicans in Congress tried to expand the surveillance authority of the government through a series of provisions contained in a 120-page draft bill known as the Domestic Security Enhancement Act (nicknamed Patriot II). None of its provisions would have been subject to sunset. These efforts were stymied, with not only Democrats but also a significant number of Republicans opposed.

Thereafter, the administration tried an opportunistic strategy of introducing measures piecemeal and recycling them from Patriot II. One was a proposal to give the FBI new authority to engage in surveillance of “lone wolf” terrorists not affiliated with any organization or foreign government. It passed as part of the reform of the intelligence establishment championed by the Sept. 11 commission.

Liberal Democrats, along with some Republican libertarians, have come forward with alternatives to the Patriot Act. Sen. Larry Craig (R-Idaho) and Sen. Dick Durbin (D-Ill.) proposed in 2003 the Security and Freedom Ensured Act:

• Section 2 would have limited the use of roving wiretaps.

• Section 3 would have modified traditional authority to delay notification of a search.

• Sections 4 and 5 would have limited the ability of law enforcement and intelligence authorities to secure business records relating to terrorist activity. But after referral to Senate committees, these bills were pigeonholed without hearings.

The administration has made renewal of the Patriot Act a top priority in this Congress. The debate occurs at a time when a brief consensus about the need to strengthen counterintelligence capabilities of the FBI, CIA and other security and investigative agencies has been eroded. Congressional Republicans and the administration still depict a “war on terror” and emphasize intelligence capabilities. Democrats are more likely to think of terrorism as best combated through effective criminal investigation followed by trial.

With the 2006 midterm elections on the horizon, the timing of reauthorization efforts means that the insistence of Democrats in 2001 that provisions of the original bill expire in five years is likely to backfire politically. Although all Democrats in the House and a large majority in the Senate voted for the original measure, they have since developed a critique of many of its provisions that plays well with their core constituencies. However, this leaves them potentially vulnerable to Republican charges of hypocrisy.

Moreover, Democrats are on the wrong side of public opinion. A majority of the electorate views Republicans as more likely to ensure their personal safety in the post-Sept. 11, 2001, world. Polls have demonstrated that voters are willing to accept some dilution of due-process guarantees in anti-terrorism measures. If Democrats frame the issue as guaranteeing civil liberties, while Republicans frame the issue as guaranteeing national security, the Democrats will lose politically.

After being put on the defensive by revelations of abuse and torture at Abu Ghraib and Guantanamo, Republicans are in a strong position on the reauthorization issue. To unify the party and mollify moderates, and prevent the few dissidents from their small libertarian wing from splitting the party caucus, they can, if necessary, provide new “sunset” measures. They might modify the librarian provisions and provide for greater independence for the Civil Liberties Protection Board that was included as part of the law.

In the run-up to reauthorization, the Justice and Homeland Security departments will re-emphasize the anticipated threat of al Qaeda attacks. If such attacks do occur prior to reauthorization, that will probably further strengthen their case for passage.

To aid their cause further, Republicans are repackaging the law not only as an anti-terrorism act but also as a crime-prevention act. Before he left office, former Attorney General John Ashcroft referred to the law as “invaluable not only to save lives from terrorists but to save children from kidnappers and pedophiles.”

Republicans have already garnered considerable support for revisions, including from former Clinton administration AG Janet Reno and former White House counter-terrorism coordinator Richard Clarke. A parade of other supportive witnesses before the Sept. 11 commission indicated that the practices of “stovepiping” (whereby information is not filtered by intelligence officials for policymakers — thus bypassing the usual scrutiny and checks and balances) and the close compartmentalization of intelligence information needed to be replaced. Instead, greater cooperation was needed among law-enforcement and intelligence agencies — as the Patriot Act had already provided for by law.

By accepting minor modifications, Republicans are likely to secure renewal. That will assist them in developing security themes for the 2006 elections.

Democrats must decide whether to cover their divisions and make a strong critique that would intensify Republican efforts to portray them as soft on terror. Alternatively, they could save their fire for more strategic battles on which they are united and can exploit Republican divisions.

Oxford Analytica is an international consulting firm providing strategic analysis on world events for business and government leaders.  See www.oxan.com