Friday, April 23, 2004
Does the USA PATRIOT Act unnecessarily threaten our civil liberties?
YES. We need to find a moderate approach to securing our nation and protecting our freedom.
In the aftermath of 9/11, there is no American who would doubt the importance of giving serious attention to our national security. What, however, is worthy of debate and scrutiny is exactly how we achieve durable national security. What precisely are the policies, tools, initiatives and regulations that will yield an optimal result? Overseas, we need to find the right balance between the use of hard power (military force) and soft power (diplomacy, intelligence and engagement). At home, we must find the balance between remaining an open and dynamic democratic society and the need to sacrifice some level of individual freedom to achieve a collective level of internal national security.
The USA PATRIOT Act was our government's first attempt after 9/11 to provide the federal government with new tools to fight the threat of terrorism at home. It is a bill that was rushed through Congress when we were all numb with anxiety in the post 9/11 moment. Responding to the public mood, our legislators pushed this bill through without the due diligence that it deserved. Now we are saddled with a bill to guarantee our domestic security that represents, perhaps, one of the greatest threats to American civil liberties in the last 100 years.
The USA PATRIOT Act threatens American liberties in several fundamental ways. It increases the powers of the government to secure virtually unlimited access to the personal records of any individual without notification based solely on an "assertion" to a secret FISA court. The Federal Intelligence Surveillance Act (FISA) was passed in 1978 to conduct surveillance on foreign powers. Section 215 of the PATRIOT Act extends these powers' use to US citizens. If the government deems a "tangible thing" such as library records, computer files, bank or health records germane to a terrorist investigation, a warrant can be filed with this court. The subject is not notified of this search or of any seizure of records until later and has no recourse to contest it. These provisions violate constitutional rights to privacy and to freedom from unreasonable search and seizure.
Parts of the Act erode centuries of legal traditions of accountability and checks and balances. Power is placed in the Executive branch of government to define terrorist groups and investigate them without the usual probable cause hearings that form a legal check to the unbridled power of the Executive. Our country has examples in our past of citizens being investigated without legitimate cause — during both the McCarthy era and the 1960s when the FBI infiltrated legitimate groups.
This Act defines a new concept of domestic terrorism that threatens to pose serious challenges to legal and legitimate acts of domestic civil dissent, particularly since the term "domestic terrorism" is defined in such a broad and vague way that it could easily lend itself to abuse. Domestic terrorism is defined among other things as "activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the US or of any state; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of government by intimidation or coercion;". Further, the Act gives the Secretary of State the authority to designate any group, foreign or domestic, as a terrorist organization, with very little judicial review after the fact.
While all Americans would agree that we need to find new ways to address the challenges to our national security in the aftermath of the attacks of September 11, we must do that with an eye toward preserving our essential liberties. The USA PATRIOT Act is a poorly conceived piece of legislation. While elements of it, such as those that aim to end terrorist fundraising by tightening banking legislation, have merit, many other elements can only be deemed excessive. We ask that the citizens of Carlisle join with others in local towns such as Concord, Lexington, Lincoln and Acton, as well as communities across the country, to request that our legislators amend those portions of the Act that threaten our civil liberties. This is not a partisan debate. Democrats and Republicans alike have voiced their concerns over the contents of this bill. What is needed now is not the elimination of this bill but rather a bipartisan effort to reform its more extreme elements. That is the debate that must be engaged in the US Congress. We urge Carlisle citizens to support the article at Town Meeting that seeks to have our legislators revisit this legislation and to find a more moderate course in assuring our national security while protecting our civil liberties.
Carlisle Civil Liberties Committee members are Ann Ballantine, Sally Coulter, Midge Eliassen, Nancy Garden, Susan Lowell, Rita Maistrellis, Helen McCandless, Ray Offenheiser, Sandy Scott, Charles Schweppe, Susan Stamps, and Bob Wallhagen.
No. The provisions of the PATRIOT Act are prudent and much needed to defend against terrorism.
Carlisle is about to vote on a measure that would essentially urge its elected officials to support the repeal of the USA PATRIOT Act and order its employees to provide the minimum amount of cooperation allowed by law when the feds come calling for assistance and/or information within Carlisle. Saner heads should prevail and vote against this measure.
The debate over the appropriate-ness of the USA PATRIOT Act invariably centers around Section 215, the provision that allows the government to request records (for some reason library records are used as the primary example) without making the same showing of probable cause necessary for a search warrant in a criminal investigation.
For over a quarter of a century, intelligence agencies have had the power to place wiretaps and search premises without demonstrating the probable cause necessary to execute a criminal search warrant. The Foreign Intelligence Surveillance Act (FISA) has provided this power since President Jimmy Carter (a real hawk) signed it into law in 1978. Entering someone's home or listening in on their phone calls is at least as intrusive as requesting their library records. Section 215 provides our intelligence agencies with the same power to inspect documents that we give to grand juries, police officers and civil litigants.
It is often stated that the PATRIOT Act does not require probable cause. This is not completely accurate. A search warrant for a criminal investigation requires probable cause to believe that a crime has been, will be or is being committed. A FISA search warrant requires probable cause to believe that the target of the search is a "foreign power" or an "agent of a foreign power."
A judge reviews the application for a FISA warrant to ensure that the target is a foreign power or agent of a foreign power. The target of the investigation may never find out about the search, but this is a good thing. The focus of intelligence is the gathering of information to identify threats and prevent future acts of terror. A criminal warrant requires the government to notify the target of the search within a reasonable time, usually 90 days. It is absolutely ridiculous to require the government to notify a foreign government or terrorist organization that we are monitoring their activities. This would give the terrorists the advance warning that we are on to them and they will obviously change their plans, methods and personnel accordingly.
This does not mean that a U.S. citizen cannot be the target of a FISA search. Unfortunately, our history is full of far too many examples of our own citizens turning against us and spying or providing other aid to foreign governments. However, the USA PATRIOT Act does not allow a warrant to issue against a U.S. citizen for simply voicing an opinion. A warrant will not issue against a U.S. citizens based solely on activities protected by the First Amendment. Moreover, U.S. citizens who are the subject of investigation will have the opportunity to challenge the validity of the FISA warrant if any criminal charges are filed against them. The judge presiding over the criminal trial, not the so-called FISA court, reviews the warrant application to determine if the government had probable cause to believe the target of the investigation was a foreign power or an agent of a foreign power. The defendant does not have the right to review the warrant application because it may contain classified information, but the presiding judge and every appellate court reviewing the matter will have the application for review.
A U.S. citizen who is never charged with a crime may never find out that their documents were reviewed. Please note, however, that it has always been the case that U.S. citizens subjected to surveillance by a FISA wiretap may never find out they were part of the surveillance. The task of protecting U.S. citizens from abuse of this surveillance power is left to our elected officials in Congress. The USA PATRIOT Act requires the Attorney General to report to Congress biannually each and every FISA warrant application including those rejected by the FISA court. Congress can review the information concerning the applications and question the Attorney General or his representative on the specifics of each application.
The USA PATRIOT Act did not make providing material support to a terrorist organization a crimeit already was illegal. In 1996, President Clinton signed the Anti-terrorism and Effective Death Penalty Act (AEDPA) into law. AEDPA made it a criminal offense to provide material support to a terrorist organization. It is hard to believe that anyone would object to criminalizing support of a terrorist organization.
It is disturbing that an entire community would vote to provide only the minimum amount of cooperation to the federal government in tracking down terrorists. We organize neighborhood crime-watches because we realize that the police cannot be everywhere. It is mandatory for certain government employees to report "suspected" child abuse because "it takes a village to raise a child." It is ridiculous that someone may enter the Carlisle library and ask about the flight patterns around the White House, the explosive force of a Boeing 747 with a full tank of jet fuel and the structural design and floor plan of the White House and the librarians would not feel compelled to call the police. This may sound far-fetched, but Zacharias Moussoui, an admitted al Qaeda operative, asked his flight school instructors repeatedly about the explosive force of a commercial airliner and they chose to contact the FBI.
It is tragic that post 9/11 the people of Carlisle are actually considering letting the government go it alone in the war on terrorism.
Robert Roughsedge is an attorney with the law firm of Lawson &
Weitzen, LLP, and a graduate of the U.S. Military Counter Terrorism
© 2004 The