Friday, April 9, 2004
Panel explains, questions, debates the USA PATRIOT Act
About 65 people gathered in the Corey music room of the Carlisle School on Wednesday evening to tackle Public Law 107-56, enacted shortly after 9/11: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism," known by its acronym as the USA PATRIOT Act. A panel of four speakers, moderated by Carlisle resident and chair of the Democratic Town Committee Susan Stamps, presented various perspectives on this enormous and complex law to help Carlisle residents understand its salient points and the controversy surrounding it.
The forum was sponsored by the Carlisle Civil Liberties Committee, a political action group that has placed a resolution opposing "portions of the act that violate civil liberties" on the Warrant for the May 3 Annual Town Meeting.
Stamps began by thanking Carlisle residents Nancy Garden and Midge Eliassen for their work in planning and executing the forum and characterized the PATRIOT Act as an expansion of the authority of the federal government in several areas for the purpose of identifying, catching, and punishing terrorists. The controversy about this law, she said, centers around whether it abuses civil liberties guaranteed to U.S. citizens by the Constitution, or whether the expanded government powers are justified by the need for greater national security.
Robert Roughsedge defends the law
The PATRIOT Act, said Roughsedge, defines and expands on existing legislation. The Federal Intelligence Surveillance Act (FISA) of 1978 limited executive authority to surveillance of foreign powers. Without probable cause to believe that the target of surveillance was a foreign power or an agent of a foreign power, FISA prohibited surveillance of U.S. citizens. The PATRIOT Act of 2001 expanded the definition of "foreign power or agent of a foreign power" to include terrorist organizations (which may include U.S. citizens). It also reinstated the so-called Edwards amendment (repealed in 1996), which stated that a terrorist investigation cannot commence "solely on the basis of activities protected by the First Amendment to the Constitution." U.S. citizens may be investigated in connection with suspected terrorist ties or activity, but not just on the basis of any rights guaranteed in the First Amendment.
The largest part of the new law deals with expansion of the government's powers "to go after the money backing terrorist organizations." Thus, said Roughsedge, the PATRIOT Act adapts to the changing threats to national security and updates FISA and other laws already on our books.
Robert Plotkin, an attorney specializing in intellectual property protection for computer hardware and software and a member of the Concord Civil Liberties Committee and the Massachusetts American Civil Liberties Union (ACLU), offered a critical perspective of the PATRIOT Act in combination with "other executive orders and policy changes since 9/11." He declared that the combination of the Act and other policies has led to abuses of power: the "almost unchecked unilateral power" claimed by the executive branch of government and the "authorization and use of secrecy to hide from the public how the laws are working."
Plotkin cited several examples, among them one pertaining to the controversial Section 215 of the PATRIOT Act, which provides for "access to records and other items under the Foreign Intelligence Surveillance Act." USA PATRIOT revises FISA such that instead of producing probable cause for a search and seizure of "any tangible thingas part of an ongoing terrorist investigation," the FBI need only assert to a FISA court that search and seizure is necessary to the investigation for that court to grant access to the requested material. In addition, Plotkin asserted, the executive branch has used the PATRIOT Act to declare its power (without the review of a federal court) to designate suspected terrorists or their suspected agents as "enemy combatants," regardless of citizenship, so as to detain them in secret, without charge or access to an attorney, "until the end of hostilities," much as enemy combatants are detained in prison camps in "traditional" wartime.
Plotkin ended his presentation by stressing concern about only those sections of the PATRIOT Act, which, he said, are civil liberty violations or open to abuse. He stated that it also contains a "long list of provisions required, necessary, and helpful for the capture and punishment of terrorists."
An historical perspective of federal government responses to crises formed the basis for Denis Cleary's presentation. Cleary, an educator, historian, lecturer, and curriculum developer at schools including CCHS, Holy Cross, and Wellesley College, said, "citizens of New England are known for coming together to discuss their affairs as you are doing tonight. It was possibly the only thing that Thomas Jefferson liked about New England."
He went on to state that history judges our politicians based on the outcome of events, and not always on their responses to these events. Using the disastrous 1798 Alien and Sedition Acts under John Adams to illustrate his point, he explained that the motivation behind these acts, which included provisions such as empowering the President to deport "such aliens as he shall judge dangerous to the peace and safety of the united States," was to limit the influx of Irish rebels deported from the U.K. Objections to this law were extreme, including the suggestion, only about a decade after the union was formed, of states seceding from the union. Like portions of the PATRIOT Act, the law had a "sunset provision," and fortunately disappeared two years after its enactment. Cleary also mentioned Lincoln's infamous repeal of the writ of habeas corpus in the Civil War and Roosevelt's internment of 120,000 Japanese-American citizens in World War II. Throughout our history, he said, we have managed to "right ourselves" despite the mistakes of a government in crisis, and in the case of the PATRIOT Act, "our system should provide checks on an over-enthusiastic executive."
Angela Reddin, Director of the Gleason Public Library, offered the view of a public organization affected by provisions of the PATRIOT Act. The American Library Association's code of ethics, she said, defines privacy as the right to inquiry without having the subject of inquiry scrutinized. Staffs are trained and policies are written to support this code, which reflects the rights to privacy in Massachusetts General Laws, Chapter 78 section 7. Section 215 of the PATRIOT Act, she said, allows information and records to be obtained by the FBI in any medium, without probable cause. Library staff is forbidden to share any information involved in searches and seizures, and there are limits as to who can be present during the searches. The results are twofold: library staff may not inform patrons of the search or seizure of their records, and libraries sharing information are gagged and isolated from each other.
How can the library try to live within the law and still serve the needs and privacy of its patrons? Specifically, the Gleason Public Library retains no information on any borrowed item returned on time, and records of overdue items are retained until the fine is paid or for 30 days. Records of lost items are retained longer as items are sought. No records or logs of Internet use are retained, and computer memories are cleared periodically. When presented with a search warrant, staff will ask to seek a director or legal counsel, but cannot stop a search. Reddin declared, "We are a public service, and we protect our visitors within the limits of the law."
Questions, answers, and more questions
Following the four presentations, Stamps moderated a question-and-answer period. In answer to a question about the law's "secret courts," Roughsedge answered that the FISA court in the PATRIOT Act is comprised of thirteen judges selected by the Supreme Court. U.S. citizens cannot be tried in a FISA court unless a federal judge determines them to be a "foreign power or agent of a foreign power" under the new definition which includes terrorists. The Department of Justice is required to release annually to Congress the list of everyone sought.
A question about sunset provisions garnered the response that section 215 of the law will expire after December 31, 2005. Barbara Powell, self-described "outside agitator from Concord" and Director of the Concord Public Library, advised everyone to attend to the sunset clauses.
Police Chief David Galvin was asked what effect the law has on his department. He replied that it has no effect at present as it is under federal jurisdiction, and that his department is charged with upholding the law. A funding question yielded the information that the law is administered through funds from the Treasury Department specifically designated for the purpose.
Questions, ranging from curiosity about the historical perspective and the law's effect on "ordinary" citizens to the privacy of e-mail communications, yielded spirited discussion.
The evening ended with three more questions, as Stamps summarized the panel's presentations: "National security is necessary and needs to be increased. Does the PATRIOT Act answer those concerns, does it not, or does it cast a broader net than necessary?"
© 2004 The