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Sunday, February 8, 2004

Can PATRIOT Act weave into the fabric of American society?



By Ray Cooklis
The Cincinnati Enquirer

To its supporters, it is a valuable tool that has helped the government fight the war on terrorism. To its detractors, it is evil incarnate, a cynical ploy to destroy our civil liberties.

There seems to be almost no middle ground in Americans' opinions on the USA PATRIOT Act. But the truth about the law - if there can be a single truth - lies somewhere in between.

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Hastily cobbled together after the Sept. 11 terrorist attacks and approved nearly unanimously by Congress, it is a large, complex bill that contains measures many public policy junkies - let alone ordinary citizens - don't know about or understand. They just know it's a political hot potato that keeps popping up in the news:

• President Bush, Attorney General John Ashcroft and others have called on Congress to extend the parts of the bill it previously voted to "sunset" at the end of 2005, and Ashcroft has toured the country with pro-PATRIOT rallies.

• A federal district judge last month struck down as unconstitutionally vague a PATRIOT provision aimed at those who give "expert advice or assistance" to terrorist suspects.

• Legal cases involving the detention of Jose Padilla, Yaser Esam Hamdi and the Guantanamo prisoners have been associated - although inaccurately, it turns out - with PATRIOT.

The confusion is understandable for a 132-page maze of titles and subsections that tinkers with existing laws from the Foreign Intelligence Surveillance Act (FISA) to money laundering to education privacy to telemarketing fraud.

But Americans - and especially members of Congress - owe it to themselves to study the act, keep the good parts and throw out the bad parts before all its provisions become inextricably woven into the fabric of law and society.

"The biggest misconception is that the PATRIOT Act is some monolithic code, carefully constructed. That's not true," said William C. Banks, law professor at Syracuse University and one of the nation's top experts on national security law. "It is a series of amendments to existing laws that add authority. It doesn't have a theme. It doesn't have a narrative. It's a mishmash."

Tung Yin, law professor at the University of Iowa who has written extensively on the PATRIOT Act, put it more bluntly: "It's indecipherable. ... The haste with which it was drafted caused problems. Some aspects make sense. Some are just not useful. And some not only don't enhance security but also harm liberties."

But criticisms from the bill's foes, led by the American Civil Liberties Union and various privacy advocacy groups, are likewise a mixed bag.

"Some objections are on the mark, some are overblown," said Banks, director of Syracuse's Institute for National Security and Counter Terrorism. "But the Justice Department hasn't done itself any favors in handling this, especially with the attorney general's rhetoric in its defense."

He's right. Ashcroft and Bush have fostered a sense that questioning the bill is somehow unpatriotic. Couple that with the Justice Department's refusal to reveal much about how it's applying PATRIOT - and last year's leak of a draft PATRIOT II bill that contained some truly scary provisions - and it's little wonder that critics on both the left and the right are concerned about its effects on civil liberties.

One truly bad feature that ought to focus critics' ire: It allows intelligence investigations authorized under FISA to be shared with criminal investigations, breaking down the firewall that used to exist between them.

Why is that bad? Because FISA searches and surveillance can be authorized under a lower standard than "probable cause." That makes it very tempting to use FISA for garden-variety criminal investigations. When that happens, the protections usually built into our justice system may go by the wayside.

"It might make some sense to have intelligence share with criminal prosecution, but this is a case of having the tail wag the dog," said Yin, who posts frequent entries on PATRIOT and related topics on his Web log (yin.blog-city.com/).

Worse, PATRIOT makes FISA court authorization automatic in some circumstances. "The FISA provision is most problematic, and the ACLU is rightly alarmed about it," Banks said. "FISA is cutting courts out from careful review of 4th Amendment issues."

Still, some concerns about PATRIOT seem unwarranted or exaggerated.

"The largest myth is that it allows the government to detain American citizens incommunicado," Yin said. "It does nothing of the sort."

The law does allow detention of aliens for at least seven days. "It is troubling that the Attorney General can easily get a six-month extension in those cases," Yin said. "But there's nothing in it about detaining American citizens."

What about the celebrated cases of Padilla and of Hamdi, which the Supreme Court should soon take up?

"Both were detained under the president's commander-in-chief powers and the military force authorization, not PATRIOT," Yin said.

Other criticisms are off the mark.

"There is a misconception that the 'roving wiretaps' authority is a Big Brother expansion," Banks said. "All Congress is doing here is letting justice keep up with technology."

One of the most publicized aspects is the so-called "librarian provision," which allows government in some cases to search your library, financial, travel, phone, medical and church records without your knowledge. There's little evidence it has or will be used often, Yin said, because government has other, more effective ways to get that information.

"It really gets people up in arms, but it's strange they'd get so upset," Yin said. "The idea that customers should be absolutely shielded seems to me an extreme position. On the one hand don't want government running roughshod. On the other hand, if people are trying to learn how to make ricin, you'd sure want the government to be concerned about it."

Some PATRIOT provisions actually strengthen civil liberties by clarifying previous law and restricting law enforcement's options. For example, it short-circuits any attempt to access the content of electronic communications. Some agencies had tried to assert that power under the specious theory that in the digital era, that data is all "numbers" - and accessing numbers is allowed under phone-trace laws.

So what's the real problem with PATRIOT? Perhaps it's a vagueness, exemplified by the "expert advice or assistance" ruling, that leaves authorities all but unaccountable for how it applies the act.

"The crux of what most people are concerned about is government accountability," Yin said. "Some provisions make sense only if you can trust the government. ... But one has to acknowledge that government lies to us sometimes.

"My concern would be less 'Is government getting more power?' than 'Is there sufficient oversight?'"

The answer is clearly no, especially where judicial oversight is concerned. Many provisions leave oversight to the executive branch itself, either cutting out the judiciary or making it a rubber stamp.

"Accountability is central. It must be addressed. How will we know if government is abusing is powers?"

Enter the courts.

The ACLU and other groups have mounted legal challenges to parts of the act. The Supreme Court will hear arguments on the Guantanamo and Hamdi cases, and may soon get the Padilla case. It may well rule in favor of the government, but that isn't even the key point. What matters most is that the court will assume its role - and its rights - in holding the executive branch accountable to the Constitution.

"We're going to see a major assertion of judicial authority," Banks said. "It will put the courts in the game on the PATRIOT Act."

Congress also has a role to play. Thanks to the foresight of conservatives and liberals in 2001, most of the controversial provisions will expire unless Congress renews them by the end of 2005. "That will give people time to think about which parts make sense and which do not," Yin said. Lawmakers also could amend or dump provisions that aren't subject to the "sunset" deadline.

"Congress surely will be very careful about this," Banks said. "Given the complexities of the legislation, institutionalizing a process for revision and review is a very good thing."

But despite the fierce rhetoric from powerful groups that believe PATRIOT to be a "crime against humanity," the bulk of the act, much like America's open-ended struggle against international terrorism, may be here to stay.

"The war on terrorism is difficult to classify as either a war or a law enforcement action," Yin said. "It's in the middle. It has aspects of both. You need to have some flexibility in fighting it. You need something like the PATRIOT Act."

Breaking it down

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) is as awkwardly constructed as its title. The 132-page bill amends parts of more than a dozen existing laws. Some of its provisions:

Surveillance

Expanded wiretaps

Roving surveillance

District judges issue nationwide warrants

Seizure of voice mail

Immigration

Broader definition of aliens who can be deported

Detention of alien terror suspects

Expands monitoring of foreign students

Bars aliens engaged in money laundering

Financial

Access to bank data

Banks must have anti-laundering programs

Credit bureaus share data with government

Banks can't do business with overseas "shell banks"

Criminal Investigation

"Sneak and peek" searches, delay serving of warrants

Information sharing between terrorism and criminal investigations

Expanded subpoenas for electronic records

Computer hacking, fraud and abuse powers

Broad authority to share grand jury information

GO ONLINE

Read the text of the USA PATRIOT Act for yourself at:

thomas.loc.gov/cgi-bin/bdquery/z?d107:H.R.3162:/

Among the sites that summarize and analyze the act:

www.epic.org/privacy/terrorism/usapatriot/

www.eff.org/Privacy/Surveillance/Terrorism/20011031_eff_usa_patriot_analysis.html

www.lifeandliberty.gov/

www.aclu.org/SafeandFree/

YOUR OPINIONS

Based on what you know about the USA PATRIOT Act, do you believe is it good or bad for America? Send your comments in 100 words or less by e-mail to letters@enquirer.com, by fax to (513) 768-8610, or by mail to: Patriot Act, Enquirer Editorial Page, 312 Elm St., Cincinnati OH 45202. Include your name, neighborhood, daytime phone and a photo if possible.

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Ray Cooklis is assistant editorial page editor. Contact him at rcooklis@enquirer.com or phone (513) 768-8525.




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