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.