Patriot claims

Roll back the administration's relentless attack on liberty

October 28, 2003|By Susan Goering

OCTOBER HAS opened a new chapter in the post-9/11 saga of whether our Constitution and Bill of Rights will ultimately guarantee us freedom and safety in equal measure.

The good news: Two senators from America's conservative heartland have introduced a bipartisan bill to roll back the most excessive sections of the Patriot Act. The bad news is an organized campaign by the White House to expand the Patriot Act that would further sap liberty and do little to increase safety.

Since the USA Patriot Act's passage two years ago this month, pressure from all points on the political spectrum has been building in Congress for fixes to several controversial provisions. Idaho Republican Rep. C. L. "Butch" Otter saw his amendment to de-fund the "sneak and peek" searches in the Patriot Act pass by an overwhelming majority in the House. That provision allowed federal agents to search Americans' homes without notifying them.

Now Sens. Larry E. Craig, an Idaho Republican, and Richard J. Durbin, an Illinois Democrat, have unveiled a bill that is a major step in the fight to restore checks on federal domestic spying powers.

The Craig-Durbin Safety and Freedom Ensured (SAFE) Act is supported by groups as diverse as the American Library Association, the Free Congress Foundation and the American Conservative Union. That it has strong support from both sides of the aisle shows just how far the administration has strayed from the American ideals of checks and balances.

The Craig-Durbin bill builds on Mr. Otter's amendment by permanently narrowing the "sneak and peek" provision.

It also addresses arguably the most controversial provision in the Patriot Act - Section 215, which allows the FBI to obtain Americans' medical, business, library and even genetic records without probable cause. Specifically, the bill would preclude investigative fishing expeditions by requiring some individualized suspicion that the targets of the order have some connection to a foreign government or organization.

The Craig-Durbin bill also curtails recently expanded Justice Department authority to seize personal information about Americans through national security letters, essentially subpoenas issued at the sole discretion of the attorney general. And the bill provides a special exemption for libraries to ensure that Americans' reading habits are not being arbitrarily monitored.

But far from being daunted by this growing skepticism in Congress and among the public (more than 200 communities, including Chicago, have passed anti-Patriot Act resolutions), the Bush administration is busy trying to pass the Patriot Act's unpopular sequel, Patriot II, with a new subterfuge - pushing it through Congress piecemeal.

Patriot II, formally known as the Domestic Security Enhancement Act of 2003, was leaked anonymously to the press in February and contains broad expansions of the powers granted in the original Patriot Act as well as several truly radical changes in American law.

The leaked Patriot II draft proved so overwhelmingly unpopular on Capitol Hill - on both sides of the aisle - that the administration is now trying to slip it through under the radar in drips and drabs.

For example, provisions in three new administration bills, first announced by Mr. Bush in a speech last month at the FBI Academy in Quantico, correspond to powers contained in Patriot II. One of these proposed powers - expanded "administrative subpoena" authority - would have the effect of broadening even further the controversial Patriot Act provision allowing broad access to library and other sensitive records without individual suspicion.

These internal subpoenas also could be used to compel testimony from wholly innocent Americans, so that the FBI - on its own - could force Americans to answer questions. Under current law, if the FBI wants to force someone to give testimony, a U.S. attorney has to convene a grand jury.

And look out for the so-called VICTORY (Vital Interdiction of Criminal Terrorist Organizations) Act of 2003, which has buried in it three provisions that originally appeared in Patriot II. The act, designed to use broader counterterrorism surveillance powers in drug investigations, has not been introduced, but it made waves last summer when a draft was circulated by Senate Judiciary Committee Chairman Orrin G. Hatch, a Utah Republican.

Congress needs to be extremely vigilant lest the Bush administration seize further expanded and unnecessary powers without proper deliberation.

Susan Goering is the executive director of the ACLU of Maryland.

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