Problems with provisions of the USA PATRIOT Act

Problems with provisions of the USA PATRIOT Act topped Melanie Trimble’s talk in November. Trimble is the Executive Director of the Capital Region Chapter of the New York Civil Liberties Union, an affiliate of the American Civil Liberties Union. Congress passed all 350 pages of the PATRIOT Act in the wee hours one morning soon after the eruption of the anthrax scare and the September 11 terrorist attacks. The bill moved so quickly that most legislators did not have enough time to read it before casting their votes. In fact, the prose analysis of the Act, which explains in plain English what the bill would do, was not completed until after the bill was already passed.

The PATRIOT Act is a collection of law enforcement bills – essentially a wish list from the FBI and law-enforcement officials. Some of the provisions in the Act would be unconstitutional, and the ACLU is currently working to have them overturned. Trimble discussed three such provisions:

First, the definition of domestic terrorism could be interpreted to include acts of civil disobedience. Domestic terrorism is now defined to include acts that are dangerous to human life in order to “influence the policy of a government by intimidation or coercion.” The Foreign Intelligence Surveillance Act (FISA) denies foreign citizens due process. Through FISA a secret congressional committee appoints a secret panel of seven judges to hear cases. FISA was never used until the PATRIOT Act was passed. Trimble explained that the ACLU opposes FISA because it is unconstitutional.

A second troubling provision of the PATRIOT Act is that law-enforcement officials do not need to pass a burden of proof test to get a warrant to investigate someone suspected of terrorism. For these “sneak-and-peak” searches, they simply need to say that they suspect terrorism. Furthermore, they can indefinitely delay telling the subject of a search that he or she is being investigated, so someone may never know about being searched. (Trimble recommended that anyone who thinks that he or she is being searched under the PATRIOT Act hire a private detective. Even so, it would be difficult to determine who is conducting the surveillance.)

Section 215 of the PATRIOT Act allows law-enforcement officials to check people’s library records without sufficient proof of illegal activity. Not only can an individual’s reading habits be investigated, a subpoena can be issued against a specific book in order to find out who has read it. The Freedom to Read Act, which was meant to overturn Section 215, was passed only to have a revote called by the Republican Caucus. After intense pressure by Republicans on some of their members, the vote was tied and the bill did not pass.

In December 2005 some parts of the PATRIOT Act will expire, but there is talk of making them permanent. Several intelligence bills are being used to make these provisions permanent because Congress does not normally read intelligence bills thoroughly. The 9/11 Commission has put pressure on Congress to implement intelligence reform. The Senate version of the bill closely follows the 9/11 Commission’s guidelines. However, the House version includes some provisions of PATRIOT Act II. One provision would establish a national ID card using state driver’s licenses. (Originally an individual’s Social Security Number was not to be used as an ID number, but that role has been changing. For example, New York State now requires a person’s Social Security Number in order to obtain a driver’s license.) Another provision would put local law enforcement officials in charge of immigration. Immigration law is not criminal law. It is quite complicated, and local law enforcement officials are typically ill prepared to handle immigration issues.

The ACLU is working on legal challenges to the PATRIOT Act. In Michigan it is working with Muslim groups to overturn Section 215. In California and New York, it is challenging the broad computer access and phone-tapping provisions. The Bill of Rights Defense Campaign is a grassroots effort to get local governments to adopt statements against the PATRIOT Act.

So far the PATRIOT Act has not been used to arrest or charge people with terrorism (at least not that is known publicly). Instead, immigration law is being used to investigate and deport suspected terrorists. For example, the Imam with the pizza parlor in Albany who was critical of the United States after September 11 was arrested on immigration charges. Despite grassroots efforts to keep him in the country, he was still deported to Jordan based on an immigration technicality. In another case 762 Muslims were arrested on immigration charges. Although none of them were ever linked to terrorism, they were all deported.

Trimble briefly discussed the ACLU’s local work, including investigating the treatment of the mentally ill by law enforcement and looking for innovative and creative programs to improve this treatment. She explained that the problems with the Public Defender Office in Albany, Schenectady, and Essex Counties have resulted in the loss of due process for people that cannot afford their own lawyer. The ACLU is working on the Department of Justice’s investigation of abuse suffered by newly arrested individuals when they are transferred to jail. In this case, reform is slow because of poor finances.