Patriot Acts 1 and 2: the threat to civil liberties

Unnoticed by many, the US Congress has given the police, immigration service and military new powers unparalleled in the country's history. And further legislation is on the way.

By Michael Mehas

September 26, 2001 saw the creation of a dangerous legal precedent, although few Americans seem to have realized it even today. That's when President George W. Bush signed into law an act that would enhance the executive's ability to conduct surveillance and gather intelligence. It would place an array of new tools at the disposal of the prosecution, including new criminal statutes, enhanced penalties and longer statutes of limitations.

The new act would also grant the US Immigration and Naturalization Service the authority to detain immigrants suspected of terrorism for lengthy, and in some cases, indefinite periods. It would suspend civil liberties and silence political dissent. And while the act enhances the powers of the executive, it also insulates the exercise of these powers from meaningful judicial and Congressional oversight.

The USA PATRIOT Act, whose full and unwieldy name is The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, was passed by both the House and Senate within six weeks following the September 2001 terrorist attacks on New York and Washington.

Hastily drafted, complex and far-reaching, the legislation spanned 342 pages. Yet no public hearing or debate was convened in either the House or Senate. Congressman Ron Paul (R-Tex) told the Washington Times that no member of Congress was allowed to read it. Despite vigorous objections from constitutional scholars and civil liberties organizations, the Senate voted 98 to 1, and the House 356 to 66, to pass it.

No doubt it was a jittery Congress that approved the act, one that had already been exiled from its anthrax-contaminated offices. And there had been daily warnings about more terrorist assaults to come. So Congress quickly agreed to the Bush administration's demands.

As a result, Americans have, for better or worse, sacrificed political freedoms in the name of national security. "No longer does the judicial branch and an independent jury stand in between the government and the accused," comments New York Times columnist William Safire. "In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner."

Today, the US Department of Justice is drafting further legislation intended as a sequel to the USA PATRIOT Act. The Domestic Security Enhancement Act of 2003 (DSEA) would grant still more sweeping powers to the government. The draft legislation would eliminate most of the remaining checks and balances on government surveillance, wiretapping, detention and criminal prosecution. Like its predecessor, 'Patriot Act 2' is technical and complex. It has also received little press attention so far. The Center for Public Integrity revealed the full text of the Domestic Security Enhancement Act on February 7, 2003, after the classified document had been leaked to them by an unnamed US government source.

Sanjeev Bery, Organizer and Advocate for the American Civil Liberties Union (ACLU), fears the introduction of DSEA may be imminent. "The Domestic Security Enhancement Act of 2003 may be introduced following the initiation of the war on Iraq," he says. "This is a critical fight for our democracy."

On March 20, 2003, the ACLU released a summary of key Domestic Security Enhancement Act provisions. According to this summary, Patriot Act 2:

• further dismantles court review of surveillance, such as court-approved limits regarding police spying on religious and political activities. It also allows the government to obtain credit and library records secretly and without judicial oversight and permits wiretaps without a court order for up to 15 days following a terrorist attack;
• authorizes secret government arrests and imposes severe restrictions on the release of information about the hazards to the community posed by chemical processing plants;
• further expands the definition of terrorism so that organizations engaged in civil disobedience are at risk of government wiretapping, asset seizure and, in extremis, loss of their citizenship;
• gives foreign dictatorships the power to seek searches and seizures in the United States and to extradite US citizens to face trial in foreign courts, even if the US Senate has not approved a treaty with that government; and
• unfairly targets immigrants by stripping even lawfully resident non-citizens of the right to a deportation hearing and strips the federal courts of their power to correct unlawful actions undertaken by immigration authorities.

Even some of President Bush's most ardent supporters have balked at the conferring of such sweeping powers. "I told the President I thought his Justice Department was out of control," former House Majority Leader Dick Armey (R-Tex) told USA TODAY. "Are we going to save ourselves from international terrorism in order to deny the fundamental liberties we protect for ourselves?"

Dozens of organizations across the nation, including the ACLU, NAACP, MALDEF, Gun Owners of America and the National Lawyers Guild, have sent letters to each member of Congress urging them to oppose Patriot Act 2. Seventy-three American cities and counties have passed resolutions opposing the civil liberties crackdown.

Many critics see both Patriot Acts as fatally flawed. Their main worry is that increasing surveillance, government secrecy, profiling, detentions and secret searches will undermine the role of the courts, Congress and the press in providing a real check on executive power. At their best, these acts represent misguided means to serve a just end. At worst, they are an unconstitutional threat to every US citizen's most cherished freedoms.