Friday, December 5, 2003
The USA Patriot Act: LWV forum explores protecting national security vs. civil liberties
Six weeks after the September 11 attacks, Congress passed the USA Patriot Act by large majorities in the House (356-66) and Senate (98-1). The subtitle of the act defines its purpose: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act." While most agree that the government must protect the country against global terrorism, a number of watchdog organizations, especially the American Civil Liberties Union, are claiming that increased powers to detain suspects and conduct searches and surveillance that the Act grants to government agencies are threatening our rights to privacy and due process.
In recent months more voices have taken up the civil rights outcry. Three states and over 200 towns and cities, including Cambridge and Newton, have passed resolutions that call the Patriot Act a threat to the civil rights of residents in their communities. In fact, a draft of a Warrant Article opposing the Patriot Act is circulating in Concord.
Against this backdrop, the Concord-Carlisle League of Women Voters sponsored a public forum entitled "The USA Patriot Act: National Security and Civil Liberties" at the Peabody School in Concord on November 12, aimed at clarifying the content of the law and exploring whether it encroaches dangerously on the civil rights of citizens and legal U.S. residents.
Six panelists addressed different aspects of the law and its potential implications. Elliott Lilien, retired CCHS history teacher, reviewed the history of legislation enacted "at times of fear." Many past laws sacrificed the liberties of targeted groups in an effort to protect national security, such as the detention of Japanese-Americans during World War II. In all cases, Lilien said, the actions were later regretted.
Herbert Wilkins, retired Massachu-setts Chief Justice, gave a very brief overview of the Act. In trying to prevent terrorism (rather than apprehend criminals), he said, the Act gives greater freedom of action to the government. While he agreed that most of the provisions were needed, Wilkins acknowledged that individuals and organizations are concerned about "abuse of authority and that courts frequently give the government the benefit of the doubt."
Kimberly West, Assistant U.S. Attorney in the anti-terrorism unit in Boston, pointed out that many of the provisions of the Patriot Act simply supplement and update existing laws. For example, telephone wire-tapping laws are extended to cell phones and e-mail. The Act also facilitates investigations by permitting the FISA (Foreign Intelligence Surveillance Act) courts, which deal with terrorism and intelligence activities, to share information with the criminal courts. In Massachusetts, West continued, the law has been little used. Only two cases have been prosecuted under the Patriot Act, one of which involved would-be shoe-bomber Richard Reid, and the other a money laundering operation for terrorist groups.
Nancy Murray of the Massachusetts ACLU said that the Patriot Act was forced through Congress with little debate, but that many on both sides of the aisle now "have second thoughts." She expressed particular concern that the law permits secret searches, wide powers of Internet and telephone surveillance, and access to personal records, which violates the Fourth Amendment right to freedom from unreasonable searches. To prevent another September 11 attack, the government should focus on mistakes made by its agencies, rather than pass laws that threaten our rights, she said.
Barbara Powell, Director of the Concord Public Library, focused her concerns on Section 215 which expands the government's power to search records, including library records. "Library use is compromised if the public cannot use [its facilities] freely, with confidence." The threshold for seizing confidential records has been reduced; now the evidence sought only needs to be "part of an on-going investigation." She said that the organization Lawyers for Libraries is offering some training, but confessed that if confronted with a difficult request she is not sure what she would do or who could provide guidance.
Concord Police Chief Len Wetherbee said that he is not certain what impact the Patriot Act, a federal law, will have on local police, and refused to be drawn into some what-if questions.
During the question and answer period, Murray and West sparred occasionally. When Murray stated that the record shows that the FISA court has approved every single request for surveillance, West immediately shot back with a Massachusetts example where the court denied such a petition.
West was asked what criteria must be met before an individual can be placed under surveillance. For example, would participation in an anti-war protest be sufficient to trigger an investigation? No, said West, pointing to Section 214 which states that the authority to obtain information cannot be solely on the basis of activities protected by the First Amendment. She urged the public to read the act, especially Section 802 which defines domestic terrorism, in part, as "activities that involve acts dangerous to human life that are a violation of the criminal laws"
The USA Patriot Act: A Sketch
The following are excerpts from a Congressional Research Service Report for Congress, on the Web at fas.org/irp/crs/RS21203.pdf.
The Act gives federal officials greater authority to track and intercept communications, both for law enforcement and foreign intelligence gathering purposes. It vests the Secretary of the Treasury with regulatory powers to combat corruption of U.S. financial institu-tions for foreign money laundering purposes. It seeks to further close our borders to foreign terrorists and to detain and remove those within our borders. It creates new crimes, new penalties, and new procedural efficiencies for use against domestic and international terrorists.
Foreign intelligence investigations
The Act eases some of the restrictions on foreign intelligence gathering within the United States, and affords the U.S. intelligence community greater access to information unearthed during a criminal investigation, but also establishes and expands safeguards against official abuse. More specifically, it .expands the prohibition against FISA orders based solely on an American's exercise of his or her First Amendment fights.
Criminal investigations: tracking and gathering communications
• permits [surveillance of] electronic communications (e.g. e-mail);
• authorizes access to stored e-mail or communication records;
• treats stored voice mail like stored e-mail;
• encourages cooperation between law enforcement and foreign intelligence investigators;
• terminates the authority found in many of these provisions and several of the foreign intelligence amendments with a sunset provision (Dec. 31, 2005).
Regulation: The Act expands the authority of the Secretary of the Treasury to regulate the activities of U.S. financial institutions, particularly their relations with foreign individuals and entities
Crimes: The Act contains a number of new money laundering crimes
Forfeiture: It allows confiscation of all the property of any individual or entity that participates in or plans an act of domestic or international terrorism
Other crimes, penalties
• The Act increases the rewards for information in terrorism cases;
• authorizes "sneak and peek" search warrants;
• eases government access to confidential information;
• lengthens the statute of limitations applicable to crimes of terrorism
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