Patriot Act: Why it is Attracting Fierce Opposition

The Guardian has a special report today on the Patriot Act, focusing on the growing criticism of the Act, particularly with respect to the Justice Department's application of its provisions in non-terror cases, and the threat such use represents to all of our civil liberties. Written by Guardian reporter Christopher Reed, it is a thorough analysis and we recommend reading the whole thing. We spoke with Mr. Reed for almost an hour on the phone as he was writing the article, and can attest to his determination to make sure his conclusions were supported by facts.

Reed quotes from Congressman Sensenbrenner's (R-WI) statement to Congress when introducing the bill:

The Wisconsin Republican assured his colleagues: "This bill does not do anything to take away the freedoms of innocent citizens. Of course we all recognise that the fourth amendment to the constitution prevents the government from conducting unrea sonable searches and seizures. That is why this legislation does not change the constitution from the rights guaranteed to citizens of this country under the Bill of Rights."

Reed then quotes from an ACLU letter that was introduced into the Congressional record before the bill was passed:

"Sadly, most Americans do not seem to realise that Congress is about to pass a law that drastically expands government power to invade our privacy, to imprison people without due process, and to punish dissent. More disturbing is that this power grab of our freedoms and civil liberties is in fact not necessary to fight terrorism."

Reed also mentions that not only was the bill passed without committee hearings in the Senate, but many members of Congress hadn't even had time to read the 342 page bill before voting on it. The vote was 97 to 1 in the Senate (Sen. Russ Feingold (D-WI) was the lone dissenter) and 309-118 in the House of Representatives.

Fast forwarding to the present, the article lays out the specific concerns of civil libertarians over the bill's application in non-terror cases and to ordinary citizens. Reed notes:

Last May the Justice Department itself acknowledged to Congress that it used the statute "in a variety of criminal cases". These included kidnap; a school bomb hoax; theft of corporate secrets by computer hacking; supplying drugs; credit card fraud; theft from a bank account; a quadruple murder; an identity theft; and a failure to turn up at court.

This month the Justice Department acknowledged that it was pursuing several hundred non-terrorist cases. Civil liberties groups argue that by expanding its investigations this way, the department is exceeding its authority. But it [the Justice Department] has always claimed that the Patriot Act could be used in ordinary criminal cases, despite the act's tirade of anti-terrorism rhetoric and its official full name.

Jameel Jaffer, a lawyer for the ACLU, believes the Justice Department's behaviour is more sinister. He says: "The government is using the vocabulary of terrorism to promote a broader agenda of federalising crime and interfering with our constitutional rights." Jeralyn Merritt, a lawyer and specialist on the Patriot Act, says simply: "Congress was hoodwinked."

Let's hope members of Congress aren't asleep at the switch and starry-eyed with cookie-cutter patriotism when the provisions of Patriot Act II and Orrin Hatch's Victory Act hit their desks. Patriot II is especially dangerous since it is being divided into smaller units and introduced piecemeal, in an attempt to avoid the Patriot Act label and the certain opposition another big bill with that name would bring.

If you'd like to read a section-by-section legal analysis of the provisions of Patriot Act I that we co-authored for Matthew Bender and Lexis Publishing, with some critical commentary, you can order it here for $19. The official title is "The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001: An Analysis" by Stanley Mailman, Jeralyn E. Merritt, Theresa M. B. Van Vliet, and Stephen Yale-Loehr.

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