Is American security paid in full with our constitutional rights?
by TONI LEAKE
The Patriot Act is the short title for Uniting and Strengthening America Act by Providing Appropriate Tools required to Intercept and Obstruct Terrorism Act of 2001. Pres Bush signed the act into law in November of 2001. The Patriot Act comprises 10 different categories, covering topics from securing borders and international money laundering to surveillance procedures including roving wire-tapping, search and seizure warrants and electronic surveillance.
Although opponents and proponents of the controversial Patriot Act tend to see it as either black or white, it’s the gray area of its interpretation that has sparked vigorous controversy. The two groups can’t even agree on the meaning of its length: opponents point out that the 60-page act is too long and complex to be understood, while proponents ask how complicated can a document only 60 pages in length be?
According to MSNBC, House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.), states that he and Sen: Orrin Hatch (R-UT) killed an effort by Attorney Gen John Ashcroft last winter to circulate a sequel to the law, known as Patriot II, because they felt it would be counterproductive. An alleged copy of this document, leaked by unnamed source, can be found on the NPR website.
The Patriot debate
At the heart of the debate is the issue of privacy versus national security. The American Civil Liberties Union and other privacy advocates, such as the Electronic Frontier Foundation and Electronic Privacy Information Center, contend that the Patriot Act violates an individual’s civil rights.
Opponents have particularly targeted Section 213 of the Patriot Act, dubbed “sneak and peak,” as being in violation of the Fourth Amendment, which outlines an individual’s rights to privacy. Entitled “Authority for delaying notice of the execution of a warrant,” it allows the government to enter and search your home without notifying you. Warrants are authorized based on “reasonable grounds” rather than “probable cause. “Supporters point to the built-in checks and balance features of the act that include judicial review requirements and a sunset clause under which parts of the act will expire Dec. 31, 2005, as protection against civil rights violations.
The House apparently agrees with the ACLU and other opponents regarding section 213. In late July of this year, the House approved 309 to 118 the Otter amendment, which would cut off funding for the section.
Ashcroft has commented that the Otter amendment, termed the “the terrorist tip-off amendment” by the Justice Department, is a mistake and contends that many members of the House were unsure about what they voted for.
How do Americans feel?
According to Foxnews.com, a Gallup poll released Sep. 9 showed that 48 percent of those surveyed said the bill is “about right” and 21 percent said it doesn’t go far enough. Only 22 percent indicated that the bill goes too far.
On the other hand, Bob Barr, a former Republican U.S. representative from Georgia and chairman of the American Conservative Union Foundation’s 21st Century Center for Privacy and Freedom, is a leading critic of the USA Patriot Act. Foxnews.com reported that Barr says that the notion that only a small number oppose the Patriot Act is because the vast majority of Americans don’t have any idea what it is.
A spokesperson for Sen. Kit Bond (R-Mo.) said that the Missouri Senator currently has no open opinion regarding the Patriot Act, including the Otter amendment, which is now before the Senate. The debate goes on, with fingers pointing in all directions.
Can Patriot Act affect your life?
Consider the following scenario and attempt to determine what the Patriot Act may actually allow or disallow.
You are walking around the Plaza on a Thursday afternoon, waiting to meet some friends for dinner later on. You spot Starbucks and decide to have a latte while you wait.
As you bask in the sunlight, sipping your drink, someone taps you on the shoulder. You look up at a man with dark hair, dressed in khaki pants, white polo shirt and designer sunglasses. He asks you for the time. You tell him it’s 4:30 p.m. He thanks you and leaves.
What you don’t know is that the man you just spoke to is being watched by the FBI for a possible connection to a terrorism cell. In fact, the FBI thinks he is a cell leader and has connections to several other terrorist cells working inside the USA.
A man sitting across from you is actually a FBI agent trailing him. The FBI agent observes the two of you talking and calls in for a reinforcement to follow you.
Later that night, an agent tails you. He tracks down your name and address and decides to investigate you for potential ties to terrorism.
After all, asking the time may be a code for a clandestine activity. Your phone is wiretapped. All your internet activities are monitored. The FBI contacts a federal judge, and, based on the seriousness of the investigation, the judge grants the investigators a warrant to search your house. While you’re at school, the FBI secretly enters your apartment and searches through your papers and computer files.
When the FBI finds out you visited a web site that describes how to make homemade bombs, and that you recently checked out several scientific magazines from a local library, they take you in for questioning. You are not allowed any phone calls; no one knows where you disappeared. After seven days, the FBI releases you.
You return home to find that you have been fired from your job for missing work without an excuse and that you have been dropped from all your classes without refunds.
Could this possible happen to you?
Yes it could
According to Michael J. Baker, an experienced trial lawyer, retired Assistant Dean of UMKC Law School, and adjunct instructor at Longview community college, the Patriot Act may well allow the above to happen with several caveats regarding questioning by the FBI. As far as the investigation, wire tapes, invasion of the home and possible taking of property, Baker says, “Under the law as it stands now, I believe that they could do all of this [stuff] and the Foreign intelligence Surveillance Act Court of Review would find it Constitutional.”
Prior to the Patriot Act, you would have been investigated under criminal investigation procedures. A federal agent or law enforcement agent would have had to prove to a federal judge that “probable cause” existed in order to be granted a search warrant.
Now, a federal agents investigating terrorist activity have to show “reasonable grounds” to a judge in a FISA court to obtain a delay search warrant under section 213.
The FISA courts powers were expanded to include not only electronic but physical searches under the Clinton administration.
Supporters of the Patriot Act point out that you usually will be notified by warrent within a couple of days of the search, but the actual law only states it must be “within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.”
Your rights: Citizen vs. non-citizen
So now that you’ve become a part of a terrorist investigation, let’s discuss your detainment. As an American citizen, you are entitled to due process of the law. That includes being openly charged with a specific crime, and having the right to consel and the right to a fair and speedy trial in an open court.
According to Baker, as an American citizen, you also have rights when the FBI confronts you. First, you do not need to consent to talk to the FBI. However, if you do not consent, the FBI can arrest you and detain you, but this action should be public record.
The Patriot Act circumvents due process for only non-citizens. Immigrants or aliens can be picked up and detained for up to seven days without being charged and without the right to legal consul. After seven days, the Act states you must be charged with a crime, deported or released. However, after you are charged with a crime, as a non-citizen of this country, you can still be detained for an indefinite period of time. Your case, however, must be reviewed every six months.
Baker points out that an exception to the Patriot Act’s detainment rule happened in the case of Jose Padilla, an American citizen picked up at Chicago O’Hare airport and detained as an al-Qaida operative last year. Padilla was not allowed access to an attorney and is currently detained. The government classified Padilla an “combatant” enemy in Afghanistan. Lindt obtained access to an attorney and federal trial. In the case of Richard Reid, the “shoe bomber” and Zacarias Moussaoui, both non-citizens, the men were formally charged, given access to an attorney, and tried in federal court.
Analyzing the past
Much of the success of the Patriot Act lies with the integrity and ethics of the government officials operating under its sanctions. Agents supposedly must demonstrate that there are grounds for investigating persons as terrorists. Judges must ask the correct questions to make their own determination.
The circumvention by the executive branch of the government during times of war is not new to the United States. Abraham Lincoln revoked the writ of habeas corpus during the Civil War and Franklin D. Roosevelt ordered the internment of thousands of American citizens of Japanese descent during World War II.
In the past, after the threat to national security subsided, these laws were revoked as unconstitutional. If history repeats itself, the expectation would be that this will happen with the Patriot Act also.
A complete text of the Patriot Act can be found on the website http://www.lifeandliberty.gov.