Kelly Patricia O'Meara
the United States is at war against terrorism to preserve
freedom, a new coalition of conservatives and liberals
is asking, why is it doing so by wholesale abrogation
of civil liberties? They cite the Halloween-week passage
of the antiterrorism bill - a new law that carries the
almost preposterously gimmicky title: "Uniting
and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act"
(USA PATRIOT Act). Critics both left and right are saying
it not only strips Americans of fundamental rights but
does little or nothing to secure the nation from terrorist
Ron Paul of Texas, one of only three Republican lawmakers
to buck the House leadership and the Bush administration
to vote against this legislation, is outraged not only
by what is contained in the antiterrorism bill but also
by the effort to stigmatize opponents. Paul tells Insight,
"The insult is to call this a 'patriot bill' and
suggest I'm not patriotic because I insisted upon finding
out what is in it and voting no. I thought it was undermining
the Constitution, so I didn't vote for it - and therefore
I'm somehow not a patriot. That's insulting."
confirms rumors circulating in Washington that this
sweeping new law, with serious implications for each
and every American, was not made available to members
of Congress for review before the vote. "It's my
understanding the bill wasn't printed before the vote
- at least I couldn't get it. They played all kinds
of games, kept the House in session all night, and it
was a very complicated bill. Maybe a handful of staffers
actually read it, but the bill definitely was not available
to members before the vote."
why would that be? "This is a very bad bill,"
explains Paul, "and I think the people who voted
for it knew it and that's why they said, 'Well, we know
it's bad, but we need it under these conditions.'"
Meanwhile, efforts to obtain copies of the new law were
stonewalled even by the committee that wrote it.
is so bad about the new law? "Generally,"
says Paul, "the worst part of this so-called antiterrorism
bill is the increased ability of the federal government
to commit surveillance on all of us without proper search
warrants." He is referring to Section 213 (Authority
for Delaying Notice of the Execution of a Warrant),
also known as the "sneak-and-peak" provision,
which effectively allows police to avoid giving prior
warning when searches of personal property are conducted.
Before the USA PATRIOT Act, the government had to obtain
a warrant and give notice to the person whose property
was to be searched. With one vote by Congress and the
sweep of the president's pen, say critics, the right
of every American fully to be protected under the Fourth
Amendment against unreasonable searches and seizures
Fourth Amendment states: "The right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not
be violated; and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized."
to the American Civil Liberties Union (ACLU), which
is joining with conservatives as critics of the legislation,
the rationale for the Fourth Amendment protection always
has been to provide the person targeted for search with
the opportunity to "point out irregularities in
the warrant, such as the fact that the police may be
at the wrong address or that the warrant is limited
to a search of a stolen car, so the police have no authority
to be looking into dresser drawers." Likely bad
scenarios involving the midnight knock at the door are
not hard to imagine.
a strict constructionist (see Picture Profile, Sept.
3), has a pretty good idea of what Americans may anticipate.
"I don't like the sneak-and-peak provision because
you have to ask yourself what happens if the person
is home, doesn't know that law enforcement is coming
to search his home, hasn't a clue as to who's coming
in unannounced . and he shoots them. This law clearly
authorizes illegal search and seizure, and anyone who
thinks of this as antiterrorism needs to consider its
application to every American citizen."
only independent in the House, Rep. Bernie Sanders from
Vermont, couldn't support the bill for similar reasons:
"I took an oath to support and defend the Constitution
of the United States, and I'm concerned that voting
for this legislation fundamentally violates that oath.
And the contents of the legislation have not been subjected
to serious hearings or searching examination."
Strossen, president of the ACLU and professor of law
at New York University, tells Insight, "The sneak-and-peak
provision is just one that will be challenged in the
courts. We're not only talking about the sanctity of
the home, but this includes searches of offices and
other places. It is a violation of the Fourth Amendment
and poses tremendous problems with due process. By not
notifying someone about a search, they don't have the
opportunity to raise a constitutional challenge to the
before the ink on the president's signature had dried,
the FBI began to take advantage of the new search-and-seizure
provisions. A handful of companies have reported visits
from federal agents demanding private business records.
C.L. "Butch" Otter (R-Idaho), another of the
three GOP lawmakers who found the legislation unconstitutional,
says he knew this provision would be a problem. "Section
215 authorizes the FBI to acquire any business records
whatsoever by order of a secret U.S. court. The recipient
of such a search order is forbidden from telling any
person that he has received such a request. This is
a violation of the First Amendment right to free speech
and the Fourth Amendment protection of private property."
Otter says the PATRIOT law gives federal agents unconstitutional
police powers. Otter added that "some of these
provisions place more power in the hands of law enforcement
than our Founding Fathers could have dreamt and severely
compromises the civil liberties of law-abiding Americans.
This bill, while crafted with good intentions, is rife
with constitutional infringements I could not support."
most who actually have read and analyzed the new law,
Strossen disagrees with several provisions not only
because they appear to her to be unconstitutional but
also because the sweeping changes it codifies have little
or nothing to do with fighting terrorism. "There
is no connection," insists Strossen, "between
the Sept. 11 attacks and what is in this legislation.
Most of the provisions relate not just to terrorist
crimes but to criminal activity generally. This happened,
too, with the 1996 antiterrorism legislation where most
of the surveillance laws have been used for drug enforcement,
gambling and prostitution."
like to refer to this legislation," continues Strossen,
"as the 'so-called antiterrorism law,' because
on its face the provisions are written to deal with
any crime, and the definition of terrorism under the
new law is so severely broad that it applies far beyond
what most people think of as terrorism." A similar
propensity of governments to slide down the slippery
slope recently was reported in England by The Guardian
newspaper. Under a law passed last year by the British
Parliament, investigators can get information from Internet-service
providers about their subscribers without a warrant.
Supposedly an antiterrorist measure, the British law
will be applied to minor crimes, tax collection and
the USA PATRIOT Act in this country, Section 802 defines
domestic terrorism as engaging in "activity that
involves acts dangerous to human life that violate the
laws of the United States or any state and appear to
be intended: (i) to intimidate or coerce a civilian
population; (ii) to influence the policy of a government
by intimidation or coercion; or (iii) to affect the
conduct of a government by mass destruction, assassination
ACLU has posted on its Website, www.aclu.org, a comprehensive
list of the provisions and summarizes the increased
powers for federal spying. The following are a sample
of some of the changes as a result of the so-called
USA PATRIOT Act. The legislation:
a.. minimizes judicial supervision of federal telephone
and Internet surveillance by law-enforcement authorities.
expands the ability of the government to conduct secret
gives the attorney general and the secretary of state
the power to designate domestic groups as terrorist
organizations and deport any noncitizen who belongs
grants the FBI broad access to sensitive business records
about individuals without having to show evidence of
leads to large-scale investigations of American citizens
for "intelligence" purposes.
specifically, Section 203 (Authority to Share Criminal
Investigative Information) allows information gathered
in criminal proceedings to be shared with intelligence
agencies, including but not limited to the CIA - in
effect, say critics, creating a political secret police.
No court order is necessary for law enforcement to provide
untested information gleaned from otherwise secret grand-jury
proceedings, and the information is not limited to the
person being investigated.
this section allows law enforcement to share intercepted
telephone and Internet conversations with intelligence
agencies. No court order is necessary to authorize the
sharing of this information, and the CIA is not prohibited
from giving this information to foreign-intelligence
operations - in effect, say critics, creating an international
political secret police.
to Strossen, "The concern here is about the third
branch of government. One of the overarching problems
that pervades so many of these provisions is reduction
of the role of judicial oversight. The executive branch
is running roughshod over both of the other branches
of government. I find it very bothersome that the government
is going to have more widespread access to e-mail and
Websites and that information can be shared with other
law-enforcement and even intelligence agencies. So,
again, we're going to have the CIA in the business of
spying on Americans - something that certainly hasn't
gone on since the 1970s."
is referring to the illegal investigations of thousands
of Americans under Operation CHAOS, spying carried out
by the CIA and National Security Agency against U.S.
activists and opponents of the war in Southeast Asia.
do the invasion-of-privacy provisions of the new law
end with law enforcement illegally searching homes and
offices, say critics. Under Section 216 of the USA PATRIOT
Act (Modification of Authorities Relating to Use of
Pen Registers and Trap and Trace Devices), investigators
freely can obtain access to "dialing, routing and
signaling information." While the bill provides
no definition of "dialing, routing and signaling
information," the ACLU says this means they even
would "apply law-enforcement efforts to determine
what Websites a person visits." The police need
only certify the information they are in search of is
"relevant to an ongoing criminal investigation."
does not meet probable-cause standards - that a crime
has occurred, is occurring or will occur. Furthermore,
regardless of whether a judge believes the request is
without merit, the order must be given to the requesting
law-enforcement agency, a veritable rubber stamp and
potential carte blanche for fishing exhibitions.
under Section 216, law enforcement now will have unbridled
access to Internet communications. The contents of e-mail
messages are supposed to be separated from the e-mail
addresses, which presumably is what interests law enforcement.
To conduct this process of separation, however, Congress
is relying on the FBI to separate the content from the
addresses and disregard the communications.
other words, the presumption is that law enforcement
is only interested in who is being communicated with
and not what is said, which critics say is unlikely.
Citing political implications they note this is the
same FBI that during the Clinton administration could
not adequately explain how hundreds of personal FBI
files of Clinton political opponents found their way
from the FBI to the Clinton White House.
these are just a few of the provisions and problems.
While critics doubt it will help in the tracking of
would-be terrorists, the certainty is that homes and
places of business will be searched without prior notice.
And telephone and Internet communications will be recorded
and shared among law-enforcement and intelligence agencies,
all in the name of making America safe from terrorism.
understands the desire of lawmakers to respond forcefully
to the Sept. 11 attacks but complains that this is more
of the same old same old. "Government has the tendency,"
she explains, "to want to proliferate during times
of crisis, and that's why we have to constantly fight
against it. It's a natural impulse and, in many ways,
I don't fault it. In some ways they're just doing their
job by aggressively seeking as much law-enforcement
power as possible, but that's why we have checks and
balances in our system of government, and that's why
I'm upset that Congress just rolled and played dead
on this one."
agrees: "This legislation wouldn't have made any
difference in stopping the Sept. 11 attacks," he
says. "Therefore, giving up our freedoms to get
more security when they can't prove it will do so makes
no sense. I seriously believe this is a violation of
our liberties. After all, a lot of this stuff in the
bill has to do with finances, search warrants and arrests."
the most part, continues Paul, "our rights have
been eroded as much by our courts as they have been
by Congress. Whether it's Congress being willing to
give up its prerogatives on just about everything to
deliver them to an administration that develops new
and bigger agencies, or whether it's the courts, there's
not enough wariness of the slippery slope and insufficient
respect and love of liberty."
does Paul believe the nation's Founding Fathers would
think of this law? "Our forefathers would think
it's time for a revolution. This is why they revolted
in the first place." Says Paul with a laugh, "They
revolted against much more mild oppression."
Patricia O'Meara is an investigative reporter for Insight.