Patriot Act debate continues

"The idea of 'don't worry about it, we're the government, trust us,' is a little bit naiveand disrespectful to the American people," Younger argues. "Just because it's written down doesn't mean there are proper tools in place to determine whether the act is being used correctly or not." Love it or hate it. Fear it or welcome it. It is here.

The 342-page USA PATRIOT Act, a sweeping piece of legislation passed by Congress one month after the Sept. 11, 2001 attacks, has increased the government's intelligence-sharing capability and expanded its surveillance powers. The prescribed intent of the act is clearly expressed in the words behind its acronym -- Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists -- but its swift passage and subsequent implementation has created a muddy debate with skepticism and outrage coming from one side, endorsement and praise from the other. Opponents such as Younger say the act authorizes law enforcement to trample individuals' civil liberties by lowering the burden of proof previously needed for wire-taps, home, business or library record searches and other surveillance operations. Advocates of the act, such as O'Connor, say it contains ample court oversight provisions, that the Department of Justice needs increased power during the ongoing war against terrorism. "About 90 percent of the act, not even its harshest critics take issue with. The most significant thing is that the PATRIOT Act broke down the wall between intelligence agencies and law enforcement agencies," O'Connor said.

The breaking down of that intelligence wall is paying dividends locally. "We're getting reams of information every day (from the federal government) on investigations and terrorist threats that are locally specific and also on the national scene," said Norwalk Deputy Police Chief Mark Palmer. "From our experience, since the act was passed, we havent seen any instances where provisions of the act are being abused. I know the arguments against it, but for practicality, abuse just hasn't happened." New powers Younger agrees more intelligence sharing between agencies is a positive thing, but she cites a few crucial sections in the act -- 213, 215 and 802 -- that have become lightning rods for controversy because of the aggressive methods they authorize. Younger said the "secretive tone" and over-classification relating to the act create great potential for abuse.

Section 213, for instance, allows for the FBI to conduct delayed notification -- known as "sneak-and-peak" searches.
The section states that authorities can "search and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the U.S." without notifying the property owner for up to 90 days after the search took place. This means that officials who have obtained a court order can enter a house, apartment or office with a search warrant when occupants are away. They can search through property, download from computers, take photographs, and/or seize diaries -- a violation, critics say, of the Fourth Amendment's safeguards against "unreasonable search and seizures." In defense of 213, O'Connor says that delayed notification is not a new tool for the Justice Department. "I have never seen a delayed notification in this district longer than three or four days," he said. O'Connor added that with delayed notification the act merely "codifies ... to recognize that it might be used for terrorist cases." Younger says that explanation is emblematic of one of the act's principle problems: "Vague attempts at defining terrorism" -- a label she said that seemingly could be applied to most any criminal or even non-criminal behaviors.

Section 802 states that acts of domestic terrorism are exempt from a statute of limitations, meaning they can be tried an indefinite number of years after the alleged offense occurred. The problem critics point to is that 802 defines statute-exempt terrorist acts too broadly. According to the PATRIOT Act's definition, domestic terrorism is any behavior that "involve(s) acts dangerous to human life that are a violation of the criminal laws of the U.S. or any state" or that "appear(s) to be intended to coerce a civilian population" or "influence(s) policy of a government by intimidation or coercion." "I think those are reasonable definitions," O'Connor said. "And nobody has ever posed a more restrictive one that I've seen. Of course there's a risk with any definition that someone could be misdiagnosed. The concern has always been, 'oh they'll define some library group or protest or ACLU group,' but I think there are examples that show people are interpreting it in the manner for which it was enacted. We don't make these decisions off-the-cuff." When asked if a street fight could be considered a terrorist act under Section 802's definition, ("acts dangerous to human life that are a violation of the criminal laws of the U.S. or any state") U.S. Rep. Christopher Shays, R-4th District, a proponent of the act who is the chairman of the House Subcommittee on National Security, Emerging Threats and International Relations, said, "I've never heard anyone say a street fight is terrorism. I don't think that would hold up for anyone.." Shays, who is no hawk for government secrecy evidenced by his comments last week at a joint House committee meeting where he criticized the federal government for having "too many secrets" and cited the old maxim that "He who protects everything protects nothing,'" argues that with any law, the potential to abuse power is constant. Shays said that the logic of America's three-branch government is what helps lawmakers police themselves.

"There are provisions where lawyers can be sued and fired, there are repercussions written into the act against those who might abuse it," O'Connor said.

Seemingly refuting O'Connor's claim that there is a sufficient amount of government oversight within the PATRIOT Act is the recently completed 9/11 Commission's report on the intelligence failures that led up to the Sept. 11 attacks. While the report is mostly favorable of the act, on page 412 it states: "There is no office within government whose job it is to look across the government at actions we are taking to protect ourselves to ensure that liberty concerns are appropriately considered." In criticizing the Bush administration's secrecy regarding the PATRIOT Act, ACLU leaders reference a July report Attorney General John Ashcroft submitted to the House Judiciary Committee, containing nearly three-dozen examples of how the PATRIOT Act has been used. The 29-page report provided information on money laundering and kidnapping busts along with terror cell penetrations in New York, Oregon and Virginia, but never mentioned what many opponents view as the act's most controversial aspect, Section 215. The omission of any reference to 215, and the fact that Ashcroft initially balked at the idea of issuing any report at all, only served to galvanize theories that 215 simply gives the government too much power by never mentioning burden of proof.

Section 215 allows the FBI to request a court order permitting agents to seize "any tangible things including books, records, papers, documents and other items for an investigation to obtain foreign intelligence information." The "other items" include DNA samples, medical records, business receipts, book and Internet search lists from libraries, computer records and more, Ashcroft confirmed at a House Judiciary Committee briefing in June 2003.

Overseeing the issuance of Section 215 court orders is the Foreign Intelligence Surveillance Court (FISC). According to figures compiled by the ACLU, since 1978, FISC has heard more than 15,000 FBI wiretap surveillance applications, and has never rejected a single one. All but five were approved without modification.

"That might strike you on it's face as being just an old rubber stamp," O'Connor said. "But they are not rubber stamps. The reason, I would submit, that almost all of those are granted, is yes, the standard that the judges have to apply is a lower standard ... you just have to show that there is a connection to an ongoing terrorist investigation. But as somebody who's been involved in FISC applications, the amount of work that goes into those things is tremendous. So I would say that the reason most are granted is the standard is low, yes, but again, we're still limited in what we can do with that information." Included in the debate over 215 is a controversial gag-order mandate that prohibits those who are searched by the FBI under a 215 court order from ever telling anyone about the search. Younger accuses the gag order of "circumventing people's right to protect themselves against unreasonable searches." Shays said the gag order is necessary in order to prevent law enforcement from tipping its hand. He pointed to the fact that the Department of Justice must file a bi-annual report to Congress of how many times Section 215 has been used as being a check on potential abuse.

Attempts by The Hour to learn just how many times 215 was used were unsuccessful. According to a Department of Justice spokesman, the information is classified to the Intelligence and Judiciary committees. The last time such information was made public was Sept. 3, 2003, when Ashcroft, after being threatened with a subpoena by the House Judiciary Committee, reported that 215 had not yet been used under the PATRIOT Act. What is necessary? "Absolutely" the power to spy on people inside the United States was insufficient before the PATRIOT Act, Shays said. "But more importantly," he continued, "The 9/11 Commission makes it very clear that it's vital if we are going to protect and prevent a terrorist act." Younger's view is different: "What the 9/11 report points out more than anything is that there wasn't necessarily the proper communication going on (leading up to the 9/11 terrorist attacks). It doesn't say that they didn't have enough spy powers," she said. "There were these mountains of warnings out there. The evidence was blatant enough without the increased surveillance under the PATRIOT Act. In many ways the FBI had many of the tools that they needed pre 9/11, but they didn't use what they could effectively." Younger's claim that the government simply "dropped the ball" leading up to Sept. 11 is confirmed by the bi-partisan commission's report, which cites President Bush's indifferent response to an August memo entitled "Bin Laden Determined to Strike in U.S.," along with the fact that prior to Sept. 11, some of the hijackers were simultaneously on most-wanted lists and listed in the San Diego phone book as two of six specific examples of how the administration had ample intelligence and opportunity to thwart the attacks.

According to Sen. Patrick Leahy, Ashcroft's priorities and organization leading up to Sept. 11 were wrong. On Sept. 18, 2002, during a Senate Intelligence Committee hearing, Leahy criticized the FBI, citing figures that of its 27,000 employees, just 153 were devoted to terrorism analysis before Sept. 11. Moreover, it was reported in the June 10, 2002 issue of U.S. News and World Report that "the FBI had a chance to infiltrate an al-Qaida training camp in the months before the Sept. 11 attacks" when a special agent in an FBI field office was invited to a commando training course at an al-Qaida camp in Afghanistan. But FBI headquarters in Washington gave instructions not to pursue the undercover investigation.

"We didn't take all the risks we should have taken," admitted House Intelligence Committee chairman Porter Goss in hindsight. "For those who criticize how hastily the PATRIOT Act was passed, they need to realize that in October 2001, nobody knew if 9/11 was an isolated incident ...," O'Connor said. And, said Shays: "What I lose patience with is that people will criticize the FBI for being ineffective, but they won't allow it to be made stronger."

Source: The Hour