Six weeks after Sept. 11, Congress enacted the USA-PATRIOT Act. Among other things, the act makes it possible for the FBI to obtain personal information about U.S. citizens -- logs of their Internet activities, the books they check out from the library, their bank transactions and their phone calls -- without any evidence that the subject of such information is involved in any way in any criminal activity. In some cases, the act allows the FBI to obtain such information based solely on its own decision to do so, without first seeking a warrant from a federal court. The PATRIOT Act also dramatically increases the circumstances under which federal law enforcement officers can conduct wiretaps and secret searches under the Foreign Intelligence Surveillance Act.

What the PATRIOT Act does not do is impose any requirement that the administration inform Congress -- or anyone else -- as to how these new powers are being used. In typical legislation involving criminal law, that might not have been a problem. As the EFF's Tien explained, law enforcement officers involved in criminal investigations have a strong incentive to police themselves when it comes to civil liberties: If they conduct searches or make arrests in violation of constitutional safeguards, the evidence they need for a conviction may not be admissible at trial. But in wide-ranging and open-ended anti-terror investigations, there frequently is no such check. If agents violate the privacy rights of a library patron or conduct unlawful surveillance of an innocent citizen, there may be no ramifications because there likely would be no trial in which such evidence would come to light -- and possibly be suppressed.

Thus, Tien said, abuses are more likely in such investigations. Yet Congress "didn't change the reporting requirements or enhance them in any way" when it adopted the USA-PATRIOT Act. "And then when members of Congress began to think, 'What do we know about what the White House or DOJ is doing?' they realized that they didn't know a whole hell of a lot."

So in 2002, Congress began to ask questions. But congressional aides say that the Justice Department has been so tight-lipped about its post-9/11 actions that Congress still lacks basic information about the use and usefulness of the PATRIOT Act powers. And without such information, they say, Congress can neither monitor the department effectively nor make intelligent decisions about whether the PATRIOT Act strikes an appropriate balance between preventing terrorist acts and protecting civil liberties.

An aide to one Democratic member of the Senate Judiciary Committee told Salon that the committee has had "extreme difficulty" in learning how the Justice Department is implementing the PATRIOT Act. Aides on the Republican side of the aisle tell a similar story. Ask them about the administration's responses to Judiciary Committee queries, and you'll hear words like "slow," "recalcitrant, and "a teeth-pulling exercise."

An aide to Iowa Republican Sen. Chuck Grassley said his boss is "frustrated" by the Justice Department's failure to cooperate more fully with the committee. "Sen. Grassley believes that senators, particularly senior senators on committees of jurisdiction, have a right to have reasonable questions answered," the aide said. "Now, sometimes people say, 'Tell me how many grains of sand are on a pyramid.' But 'How often have you used this new power? And what has been the result?' Those are legitimate questions that should be answered."

Some of them haven't been. For example, said Tien, the Justice Department has refused to say how many times it has demanded information from libraries about the books checked out by individual patrons. More generally, the Senate Judiciary Committee has asked the Justice Department numerous times for information about its practices under the PATRIOT Act and the Foreign Intelligence Surveillance Act. Some of those requests have not been answered at all, said the aide to a Democratic member of the committee, while others have been answered only incrementally.

"The curtain came down just after the work on the USA-PATRIOT Act," the aide said. "That's when the unilateralism started, both in the Justice Department and in the administration overall."

While some departments have been more responsive to congressional requests, Senate aides say that many have joined Justice in putting such inquiries on what one Republican Senate aide called "the slow boat to China." He said that administration officials seem surprised and resentful that they are expected to provide any information at all. "They probably figure, 'We've got both houses in our pocket and we don't have to get oversight stuck up our ass,'" he said. "They probably figured they could paint [Vermont Democratic Sen. Patrick] Leahy and [Democratic Rep. John] Conyers as partisan. But there are [Republican members of Congress] who ask questions and expect answers, too."

One of those members is Rep. James Sensenbrenner, the Wisconsin Republican who chairs the House Judiciary Committee. Last summer, Sensenbrenner and Democratic Rep. John Conyers Jr. asked the Justice Department to provide the committee with basic statistical information about its use of its PATRIOT Act tools. The department stalled so long that Sensenbrenner eventually threatened to issue subpoenas and to vote against renewal of the PATRIOT Act when it expires in 2005 pursuant to the "sunset provision" written into the act. In an interview with editors of the Milwaukee Journal Sentinel, Sensenbrenner said he told Ashcroft: "If you want to play, 'I've got a secret,' good luck getting the PATRIOT Act extended. Because if you've got bipartisan anger in the Congress, the sunset will come and go and the PATRIOT Act disappears."

Shortly thereafter, the Justice Department provided answers to the committee's questions. In an interview with Salon last week, Sensenbrenner aide Jeff Lungren struck a conciliatory tone. Sensenbrenner and Ashcroft now meet for lunch on a regular basis, he said, and any problems they may have had were the result of the natural "tension" between an executive department and the congressional committee that oversees it.

Still, Lungren agreed that keeping the five-year sunset provision in the PATRIOT Act is "critical" to understanding how the act is being used and whether any "tweaks or changes" need to be made.

At the time of the PATRIOT Act's passage, many members of Congress said they wouldn't have voted for the act without the sunset provision. Leahy said at the time that the provision was key to ensuring oversight of the Justice Department. He reiterated that view in a written statement issued earlier this month, saying that Hatch's proposal to make the PATRIOT Act permanent now would rob Congress of what "little leverage" it has in obtaining information from the Justice Department and would "give up the ghost" on any further congressional oversight.

"Oversight is how we know how well or how poorly these and other laws work in practice, and the sunset conditions give Congress and the American people at least a little leverage in getting answers," Leahy said. "History shows that a government that doesn't want oversight often is a government that has something to hide."

Some in the civil liberties community see the oversight efforts being made by Leahy, Grassley and Sen. Arlen Specter, R-Penn., as a resurgence of congressional authority after a period of acquiescence to administration demands. They view the Hatch proposal as a check on that trend. "It's a frontal challenge," said the FAS's Aftergood. "It's a test of the backbone that we're beginning to see. And if it works, congressional oversight will be just a courtesy extended by the executive branch, with no rigor or mandatory character to it."

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