The editors of Esquire magazine once wrote, “If there is one thing that always comes out of a terrible tragedy, it is really dumb legislation.”
On October 25, 2001, a mere 45 days after the 9/11attacks, Congress passed, with virtually no debate, House Resolution 3162, entitled “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” Act. You’ve probably heard it called by its ominous acronym: USA PATRIOT.
The PATRIOT Act, running longer than 340 pages, amends more than 50 current federal statutes and was passed in the Senate by a vote of 98-1, with the lone dissenting vote cast by Democratic Senator Russell Feingold of Wisconsin.
The PATRIOT Act has been back in the news lately for two reasons: First, the Senate Intelligence Committee decided in a closed session last week to allow “administrative subpoenas” that would allow the FBI to obtain terrorism suspects’ medical and other records without going through a judge. Second, President Bush last week started a campaign to support PATRIOT, traveling the nation on a self-righteous promotion tour of the act and other proven misguided tactics in our continuing “war on terror.” It’s all in anticipation of Dec. 31, 2005, the date when 16 provisions of PATRIOT are set to expire or “sunset.”
So the debate over whether to renew certain objectionable provisions of PATRIOT is coming to a head. On one side is President Bush and his administration supporters. On the other is a bipartisan coalition calling itself “Patriots to Restore Checks and Balances”, leading the charge to promote alternatives to the PATRIOT act and make certain that unconstitutional provisions of PATRIOT rightfully expire at the end of December. Led by political polar opposites-the American Civil Liberties Union and the American Conservative Union-this coalition seeks to increase grassroots awareness of the pitfalls of PATRIOT and show President Bush and all Americans that opposition to USA PATRIOT and the desire to protect civil liberties is a non-partisan issue of importance to all Americans.
Opponents of the PATRIOT Act have welcomed the introduction of S. 737-the bipartisan Security and Freedom Enhancement (SAFE) Act of 2005-sponsored by Senators Larry Craig, R-Idaho, and Richard Durbin, D-Ill., and currently being considered in the Senate.
The SAFE Act would provide the stronger standards for judicial oversight and review of federal law enforcement investigations that are clearly missing from the PATRIOT Act. It also would correct provisions of USA PATRIOT that are not due to sunset in December.
One notable improvement the SAFE Act has over PATRIOT is much-needed judicial oversight in the use of the so-called “sneak and peek” provision. The “sneak-and-peak” provision of PATRIOT (Section 213) allows law enforcement agencies to conduct secret searches of anyone’s home or apartment without a warrant or even notification to the owner. This means that investigators could potentially enter anyone’s place of residence, take pictures, download computer files and seize items without informing them of the search until days, weeks or even months later. PATRIOT contains a “catch-all” provision that would permit the use of this extraordinary power in virtually any criminal investigation that the government deemed fit without any sort of significant judicial oversight. Under the SAFE Act, “sneak and peek” could be used only when a federal judge finds that not using it would result in endangered lives or tampering of material evidence.
The one major shortcoming of the SAFE Act is that it fails to address PATRIOT’s overbroad definition of “domestic terrorism.” That portion still needs to be amended to ensure that political activists exercising their legitimate First Amendment rights cannot be targeted by a fanatical administration intent on staging political witch hunts.
Why is the upcoming “sunset” date so important? Many provisions of PATRIOT have opened a new chapter in the debate on the application of constitutionally suspect laws in the post-9/11 world that we live in today. Although not all 340 pages of PATRIOT Act are legally controversial, there are major sections of the law that should tremendously concern those who cherish due process, free speech and other fundamental protections guaranteed by the United States Constitution.
For example, Sections 411 and 802 of PATRIOT broadly expand the official definition of “domestic terrorism,” so that college student groups who engage in certain types of protests could very well find themselves labeled as “terrorists.” For example, the Sheriff of Hennepin County, Minn., once declared that the student groups “Anti-Racist Action,” “Students Against War” and “Arise” were all potential ‘terrorist’ threats.
This week, Republicans joined with Democrats in the House of Representatives to pass an amendment to an appropriations bill introduced by Bernie Sanders, I-Vt., which would block one of the PATRIOT Act’s most controversial provisions-Section 215. Under Sections 215 and 505 of PATRIOT, law enforcement officials are given broad access to any type of record-sales, library, financial, medical, etc.-without having to show probable cause of any crime. PATRIOT also forbids the holders of this information, such as university librarians and college registrars, from disclosing that they have ever provided such records to federal officials.
A University of Illinois survey of American public libraries found that at least 545 libraries have been asked for records by law enforcement in the year following 9/11 alone. According to the American Association of Collegiate Registrars and Admissions Officers, approximately 200 colleges and universities have turned over student information to the FBI, INS and other law enforcement agencies.
While the bipartisan forces rejecting Section 215 are indeed cause for celebration, the victory party may be short-lived. The White House has promised to veto the measure. Fortunately, other signs of resistance to the Patriot Act can be found in cities and states throughout the country.
Since its inception in October 2001, the debate over privacy and constitutional issues raised by PATRIOT has motivated more than four states and 357 cities, representing more than 55 million people in 44 states, to pass resolutions officially condemning portions of PATRIOT in their local, city and state legislatures. In addition to resolutions passed in more than 200 smaller cities, the list of successful resolutions includes those passed in the large metropolitan cities of New York, Los Angeles, Chicago, Detroit, St. Louis and Philadelphia. In addition, the states of Hawaii, Alaska, Maine and Vermont have also passed statewide resolutions condemning portions of PATRIOT as being unconstitutional and infringing on individual rights.
Even traditionally conservative voices like former Speaker of the House Newt Gingrich, Republican Senators Larry Craig of Idaho, Arlen Specter of Pennsylvania and Lisa Murkowski of Alaska have all publicly voiced criticism of the PATRIOT Act.
Come December 31st, our nation’s character will be protected and American will be stronger if we see these unconstitutional provisions of USA PATRIOT ride off into the sunset.
ARSALAN IFTIKHAR is national legal director for the Council on American-Islamic Relations (CAIR), the nation’s largest American Muslim advocacy group in Washington.