ENTER THE PATRIOT ACT

The first advice any good lawyer gives his or her client is to not sign anything without first reading and understanding it.
Yet, a panicky House of Representatives, still in shock over 9/11 and the subsequent anthrax attacks, rushed the PATRIOT Act into law by a vote of 339-79.
The Act was 342 pages long and made changes, both great and small, to more than 15 different US statutes, most of them enacted after previous misuse of surveillance powers by the FBI and CIA.
It was hurriedly and enthusiastically signed into law by President Bush on October 26, 2001. The speed with which this legislation was presented to Congress left little doubt in many minds that it had long been prepared and simply needed some provocation as an impetus for action.
According to some congressmen, many lawmakers had not even read the entire document when it was passed. The ACLU also reported that some members of Congress had less than one hour to read the extensive changes of law contained within the act.
Many civil libertarians felt those two facts alone should be cause for wholesale dismissals at the Capitol.
Rep. Dennis Kucinich, a Democrat from Ohio, described the atmosphere in which the PATRIOT Act was passed: “[T]here was great fear in our great Capitol…The great fear began when we had to evacuate the Capitol on September 11. It continued when we had to leave the Capitol again when a bomb scare occurred as members were pressing the CIA during a secret briefing. It continued when we abandoned Washington when anthrax, possibly from a government lab, arrived in the mail…It is present in the camouflaged armed national guardsmen who greet members of Congress each day we enter the Capitol campus. It is present in the labyrinth of concrete barriers through which we must pass each time we go to vote.”
Rep. Ron Paul, one of only three Republicans to vote against the House bill, said he objected to how opponents were stigmatized by the name alone. “The insult is to call this a ‘patriot bill’ and suggest I’m not patriotic because I insisted upon finding out what was in it and voting no. I thought it was undermining the Constitution, so I didn't vote for it—therefore I’m somehow not a patriot. That's insulting.”
Paul confirmed rumors that the bill was not read by most members of the House prior to their vote. “It's my understanding the bill wasn't printed before the vote—at least I couldn't get it,” he told Insight Magazine. “They played all kinds of games, kept the House in session all night, and it was a very complicated bill. Maybe a handful of staffers actually read it, but the bill definitely was not available to members before the vote.”
Paul's view of the Patriot Bill was echoed by the only independent in the House, Rep. Bernie Sanders of Vermont, who said, “I took an oath to support and defend the Constitution of the United States, and I’m concerned that voting for this legislation fundamentally violates that oath. And the contents of the legislation have not been subjected to serious hearings or searching examination.”
The Electronic Frontier Foundation (EFF) of San Francisco, a donor-supported membership group dedicated to protecting freedom when “law and technology collide,” published an overview of the PATRIOT Act. They concluded that, “it seems clear that the vast majority of the sections included have not been carefully studied by Congress, nor was sufficient time taken to debate it or to hear testimony from experts outside of law enforcement in the fields where it makes major changes.
“This concern is amplified because several of the key procedural processes applicable to any other proposed laws, including inter-agency review, the normal committee and hearing processes and thorough voting, were suspended for this bill. The civil liberties of ordinary Americans have taken a tremendous blow with this law, especially the right to privacy in our online communications and activities. Yet there is no evidence that our precious civil liberties posed a barrier to effective tracking or prosecution of terrorists.”
In a move to assert some control over the new legislation, Congress tacked on a sunset provision requiring that portions of the act must come under review by Congress or expire by December 31, 2005, unless President Bush decided to extend them in the “national interest.” But it was Congress, which extended the “sunset” provisions into 2006 to allow for negotiations with the Bush administration.
In early 2005, Republican supporters of the act attempted to have the legislation reauthorized in accordance with the Bush administration's desire to make all powers permanent, but a series of hearings in both House and Senate were held instead. Various reforms to the act were submitted in both chambers, but were blocked by the partisan leadership.
Still, efforts to make the PATRIOT Act permanent met with strong opposition from across the political spectrum and included such groups as the American Conservative Union and Americans for Tax Reform. It appeared that congressional leaders feared the proposed reforms would pass if brought to a full and fair vote.
According to the ACLU, “The House and Senate passed different versions of legislation to reauthorize the PATRIOT Act. Since they were not the same bill, the differences were resolved in a ‘conference committee’ with representatives from both chambers, but critical compromises were made while excluding Democrats from negotiations. The ensuing conference report failed to include the most important civil liberties protections included in the Senate version of the bill. A final bill and a small amendments package have now passed both houses of Congress.
“The amended Patriot Act continues to fail to adequately protect the privacy rights of innocent, ordinary people in this country.”
But the debate over the PATRIOT Act is not over as several organizations have vowed to seek further reforms in the legislation.
The official title of the bill originally was the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act”—USA PATRIOT Act. The name was reminiscent of Hitler's 1933 legislation passed hurriedly following the burning of the Reichstag in 1933, which evolved into the Third Reich. It was called “The Law To Remove the Distress of the People and State.”
This act, which clearly abridges the rights of Americans, was built upon the little-known Foreign Intelligence Surveillance Act of 1978 (FISA) which cracked the door open to secret government searches. FISA was passed in the contingencies of the Cold War and in the wake of revelations of misused surveillance by the FBI and CIA.
The FISA law created the secret federal Foreign Intelligence Surveillance Court (FISC), which meets in total secrecy to routinely approve covert surveillances on non-Americans by intelligence agencies. The attorney general must approve all applications to the court. Either federal prosecutors are extremely efficient and effective in their work or the seven federal judges who make up this secret court are not picky about the Constitution because out of the some 12,000 requests for secret surveillances and physical searches made during the first 23 years of the FISC, not one application was denied until four in 2003.
“Then came the USA PATRIOT Act,” wrote journalist Walter Brasch, “drafted by the Bush Administration and fine-tuned in secret by the House and Senate leadership following the September 11 terrorist attacks. The PATRIOT Act, which incorporates and significantly expands FISA to include American citizens, was overwhelmingly approved by the Congress, most of whom admit they read only a few paragraphs, if any at all…”
“The intent behind the passage of the FISA legislation was to impose limits and a review process upon warrantless surveillance and searches conducted for ‘national security’ purposes in light of the numerous abuses by federal agencies against US citizens,” wrote Patrick S. Poole in a treatise on both the FISA and the FISC. “But the politicization and present use of the FISA process [now expanded through the PATRIOT Act and its revisions] has resulted in the erosion of numerous Constitutional rights and basic legal procedures that have their roots in free societies dating back to the Magna Carta.”
The act also greatly expanded law enforcement power into areas that have little to do with terrorism. One provision provides for the collection of DNA from terrorists, then expands this to include anyone suspected of “any crime of violence.” Both the scope and penalties under the Computer Fraud and Abuse Act were increased along with the use of wiretaps.
In fact, the act was so broad and subject to abuse that the Foreign Intelligence Surveillance Court took the unprecedented move of forcing then Attorney General Ashcroft to modify Justice Department guidelines concerning FBI terrorism searches and wiretaps. The FISC, for the first time in nearly two decades, rejected some of Ashcroft's guidelines as “not reasonably designed” to safeguard Americans’ privacy.
Ashcroft's instructions came in March, 2002, and were addressed to FBI Director Robert Mueller and senior Justice Dept. officials. They were intended to make it easier for investigators in espionage and terrorism cases to share information from searches or wiretaps. The FISC ruled that his guidelines could cause misuse of information in criminal cases, which traditionally required higher legal standards to procure searches and wiretaps.
Ashcroft had cited the USA PATRIOT Act as the justification for expanded guidelines used in wiretaps and searches. “The attorney general seized authority that has not been granted to him by the Constitution or the Congress,” noted Marc Rotenberg, head of the Washington-based Electronic Privacy Information Center.
The Electronic Frontier Foundation said Internet users particularly should be concerned about provisions of the act which expand government surveillance while reducing checks and balances, the forced handing over of records by Internet Service Providers (ISP), new and vague definitions of “terrorism,” and surveillance without a court order.
Provisions of the original PATRIOT Act that most concerned civil libertarians were that:
■ The federal government may now monitor religious and political institutions without suspecting criminal activity to assist terrorism investigations (a violation of the First Amendment right of association).
■ The feds now can close to the public once-open immigration hearings and secretly detain hundreds of people without charge while encouraging bureaucrats to resist Freedom of Information requests (a violation of the 5th and 6th Amendments guaranteeing due process, speedy trials and freedom of information).
■ The government may prosecute librarians or other keepers of records if they tell anyone that the government subpoenaed information related to a terrorism investigation (a violation of the First Amendment right of free speech).
■ The government now may monitor conversations between federal prisoners and their attorneys and may even deny access to lawyers to Americans accused of crimes (a violation of the 6th Amendment right to have legal representation).
■ The government now may search and seize individual and business papers and effects without probable cause to assist an antiterrorism investigation (a violation of the 4th Amendment right against unreasonable searches and seizures).
■ The government now may jail Americans indefinitely without a trial or charges (a violation of the 6th Amendment right to a speedy trial and to be informed of the charges against them).
Despite some slight reforms passed in 2006, these same provisions continue to concern civil libertarians.
And lest anyone think that the government will hold in abeyance any power given to it, many worrisome incidents of application of the draconian law were quickly reported.
In March 2002 John Ashcroft's Justice Department, announced that it planned to use secret evidence to justify financial sanctions against a Chicago-area Muslim charity as part of its effort to stop the funding of terrorists.
Attorneys for the Global Relief Foundation filed a lawsuit claiming the government violated the Constitution when it froze the charity's assets in December 2001. The government said it would share its evidence with the judge but not with the charity or its attorneys. Legal experts said that this may be the first time the government has tried to use secret evidence in a trial, citing the PATRIOT Act as its authority.
Global Relief, along with two other charities—Benevolence International and the Texas-based Holy Land Foundation for Relief and Development—had their assets frozen by the government pending an investigation of their links to terrorism.
“It's completely contrary to anything that's ever happened in this country. This country was founded on the idea of confronting your accuser. If they submit secret evidence or present it to the judge in such a way that we can never see it, we can't cross examine and we can never rebut,” said Global Relief attorney Roger Simmons, adding that such government action set “a very dangerous legal precedent.”