Just weeks after the Sept. 11 terrorist attacks, while many in the nation were feeling scared and vulnerable, U.S. Sen. Daniel Akaka voted with the majority in Congress who overwhelmingly supported the USA Patriot Act, which gave the federal government expanded powers of surveillance against potential terrorists.

The law gave federal authorities the right to use the same eavesdropping tools it had been using against organized-crime figures and drug dealers to uncover terrorism and computer crimes. It allowed broader foreign intelligence gathering within the U.S., including roving wiretaps against terrorist targets and the ability to secretly obtain library, bookstore, medical or tax records.

Akaka believed the law struck a balance between the need to respond to a dangerous new threat and protecting essential privacy rights. U.S. Rep. Ed Case was not in Congress at the time, but he believes he would have also felt that the new powers were necessary.

Five years later, the Patriot Act has become among the most divisive legacies of Sept. 11, a symbol — depending on your opinion — of vigilance in the face of terror or the surrender of civil rights.

When Congress voted to reauthorize the Patriot Act a few months ago, Akaka was among only 10 senators to vote against the law, while Case voted with the majority in the House after amendments were added to protect civil liberties.

The Patriot Act is one of several national issues where Akaka and Case disagree, providing voters in the Democratic primary for U.S. Senate an opportunity to differentiate between the two candidates.

Akaka said the Bush administration had gone too far. "They were taking liberties, listening in to conversations, using terrorism as a reason for getting information that was private, so that became a concern to me," the senator said.

Case said he would not have voted to reauthorize the law without the amendments, which put a four-year sunset on the roving wiretap authority and the ability to obtain business records. The congressman said some people have linked the Patriot Act with separate surveillance activity by the Bush administration, including revelations that the government eavesdropped without court approval on telephone calls to foreign countries and may have built a database containing the telephone records of millions of unsuspecting Americans.

"People don't trust the Bush administration to protect the constitutional provisions of privacy," Case said. "But that doesn't change my analysis. That doesn't change my reasoning. That doesn't change my vote."

VOTER SENTIMENT

Opinion polls nationally show the country is divided over whether the Bush administration is protecting privacy rights while fighting terrorism, down from the strong confidence that people had in the president in the first few years after the attacks of Sept. 11, 2001. In the Islands, while no polling data on the issue are available, several people interviewed said the Patriot Act could be of interest to voters in the Senate primary because of the state's history of valuing personal privacy.

Hawai'i voters approved a constitutional amendment in 1978 recognizing a specific right to privacy that should not be infringed without a compelling state interest, a protection that goes beyond the rights given by the U.S. Constitution. In 2003, the state House and Senate passed a resolution urging Hawai'i's congressional delegation to work to repeal sections of the Patriot Act or White House executive orders that limit civil liberties. A committee report on the resolution concluded that "the safety of our nation is not dependent on the erosion of our human rights and civil liberties. The United States and Hawai'i can be both safe and free."

But state lawmakers last session agreed to expand electronic surveillance in Hawai'i after years of complaints by law enforcement authorities that the state's wiretap law was too onerous. The bill, which awaits Gov. Linda Lingle's signature, would end a requirement for an adversarial hearing before courts approve wiretaps and more closely align state law with federal law so evidence in federal wiretap investigations might be used in state cases. State Attorney General Mark Bennett, in a sign of the political sensitivity surrounding the Patriot Act, told lawmakers the state law should mirror the federal surveillance law that was in place before the Patriot Act.

ACLU'S POSITION

Lois K. Perrin, the legal director of the American Civil Liberties Union of Hawai'i, said the group does not oppose the entire Patriot Act but has objected to a handful of sections in the law, such as the roving wiretaps and secret record searches. "The ACLU believes that those provisions grant the government broad new powers to intrude into the lives of ordinary Americans without sufficient safeguards to preserve individual privacy and other basic constitutional rights," Perrin said.

Bob Vericker, a retired FBI agent with experience in terrorism investigations, said the nation's intelligence systems were inadequate to deal with terrorism before the Sept. 11 attacks. The Patriot Act has authorized information sharing that, according to the White House, helped break down walls between criminal investigators and intelligence officers.

"The issue with the Patriot Act is clearly balance between individual rights and the protection of society. Both are equally important, both an integral part of the foundation of our country," Vericker, a former coordinator of the criminal justice program at Honolulu Community College, wrote in an e-mail to The Advertiser. "In order to connect the dots, one needs dots. Information sharing is critical. On balance, I support the complete package because I know it to be not only valuable to law enforcement but also America, as long as the proper balance is maintained."

In Congress, some Senate Democrats used a filibuster to try to stop the Patriot Act from being reauthorized and forced two temporary extensions of the law before a compromise was reached with Republicans and the White House on the amendments. Akaka said there was pressure from inside the Democratic caucus and from interest groups to vote for the law but he stayed with the holdouts.

Akaka said he believes his vote was further justified after Bush, in a statement after signing the extension of the law in March, indicated he may not comply with new requirements to report to Congress on the use of expanded surveillance powers if he feels it impairs foreign relations, national security, or his deliberative or constitutional duties.

"I would be very careful about their positions on civil liberties, basing it upon the Patriot Act and what the administration has been doing in what I feel is taking liberties in dealing with what I call private matters," Akaka said.

Some of Akaka's supporters have pointed to the Patriot Act as another example of Case voting with House Republicans and the White House at the expense of Democrats. But most of Akaka's Democratic colleagues in the Senate voted to extend the law.

Case said it is his responsibility to explain to constituents, some of whom are angry about his vote, the distinction between his support for the Patriot Act and his concerns with the Bush administration's other surveillance activity. His office has prepared a detailed five-page letter for people who have inquired about his vote.

SOUGHT AMENDMENTS

The congressman was among those who sought the amendments to the law, including the four-year sunset dates on roving surveillance and secret record searches, the reporting requirements to Congress, and a stipulation that top FBI officials have to personally approve orders for library, bookstore, medical or tax records.

Lawmakers also added new restrictions to control crystal methamphetamine — a pervasive problem in parts of Hawai'i — by limiting retail and mailorder sales of ingredients used to make the drug and requiring that cold medicine and other products with the ingredients be placed behind the counter or in locked cabinets at retail outlets.

Case said the Patriot Act gives the government the necessary authority to fight terrorism while preserving an unwavering commitment to constitutional liberties. Although some might forget, he said, the surveillance powers in the law still require court approval. He said he completely rejects the Bush administration's argument that the government can eavesdrop on Americans in some circumstances without any court oversight.

"That scares the hell out of me," Case said.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.