CQ HOMELAND SECURITY – COURTS & JUSTICE
March 23, 2004 – 8:35 p.m.
Patriot Act, Catchall for Anxiety Over Civil Liberties, Is Again Focus of Concern
By Caitlin Harrington, CQ Staff
Critics of the new anti-terrorism law known as the USA Patriot Act, particularly civil liberties and Arab-American groups, are raising anew charges that the controversial legislation was pushed through Congress without adequate deliberation and needs to be changed.
“I think a lot of members are sorry they didn’t scrutinize it more and were in such a rush,” said Mary Rose Oakar, a former Democratic member of Congress and president of the American-Arab Anti-Discrimination Committee.
And with parts of the law scheduled to lapse next year under a sunset provision and a presidential election on tap this fall, groups outside Congress are trying to generate a public debate that seeps down to such forums as the U.S. Commission on Civil Rights.
With a reputation for squabbling and bickering and a relatively piddling budget that hovers around $9 million, the fiercely divided commission of Democratic and Republican appointees reached a new low last year when it failed to reach a consensus on where to hold its meetings.
But last Friday the commission chose to tackle a subject bigger than its meeting rooms – the USA Patriot Act.
The 2001 anti-terrorism law gives the federal government sweeping surveillance powers and broad authority to gather public records, provisions that have raised the ire of the American Civil Liberties Union and the American-Arab Anti-Discrimination Committee, which testified at the commission’s hearing in Washington, D.C., last week.
The commission’s chairwoman, Mary Frances Berry, a University of Pennsylvania professor of history and social thought, convened the meeting.
There was a light in front of her seat at the panel’s table so she could give speakers the hook when they drifted over their allotted time.
The tenor of the wide-ranging meeting – which bounced from the Patriot Act to Guantanamo Bay detentions to racial profiling – seemed to echo a broader public misapprehension that the act is a catchall for the expansion of government police and surveillance powers, including a rise in reports of racial profiling among Arabs after the Sept. 11 attacks. In an interview on Tuesday, Daniel Sutherland, the DHS officer for civil rights and civil liberties, said that the Patriot Act has become a fall guy for a broad variety of civil liberties concerns – which DHS is “working hard” to address.
“I just think that when people say they’re concerned about the Patriot Act, they’re not really concerned about the Patriot Act. They haven’t even read the Patriot Act,” he said.
A USA Today/CNN/Gallup poll conducted in February backs Sutherland up.
A majority of Americans, for example, wrongly believe that the Patriot Act authorizes military tribunals for foreign terrorists and lays out the definition of enemy combatant. Those powers were actually defined by presidential directives issued in the wake of the Sept. 11 attacks.
The public, said Sutherland, has been “expressing a vague unease about how the war on terror impacts our personal liberties, and that’s why I’m here,that’s why [Nuala O’Connor Kelly, the DHS privacy officer]’s here.
. . . We recognize that’s an issue and we’re working hard on a daily basis [to protect civil liberties].” Blamed for Everything Paul Rosenzweig, a research fellow on the law at the conservative Heritage Foundation, said that the civil rights commission meeting showed how the Patriot Act is sometimes blamed for creating an environment that invites civil liberties violations, when in reality, those violations are not systematic, and could not be codified into a law. “There’s always going to be people in a non-systematic way that abuse civil rights. But no law can protect against a TSA screener who purposely picks out Arabs. That’s not related to the statue. That’s related to human nature – America’s legacy and people’s reaction to Sept. 11. You can’t figure that out,” said Rosenzweig, who testified at the meeting and spoke to CQ Homeland Security in a phone interview March 19.
Although the civil rights panel waded beyond issues directly related to the Patriot Act, civil liberties advocates testifying before the panel did raise criticisms narrowly confined to the anti-terrorism legislation.
They also endorsed what they see as a legislative answer to their concerns: the SAFE Act – the Security and Freedom Ensured Act (S 1709) – a Patriot Act roll-back bill sponsored by Sens. Larry E. Craig, R-Idaho, and Richard J. Durbin, D-Ill.
The bill would modify wiretap and search warrant provisions of the law. The SAFE Act is part of a broader congressional backlash to the Patriot Act that has grown since the law was enacted – there was a bipartisan vote in the House last year that would have nullified a search and seizure provision in the law. But the SAFE Act hasn’t moved since it was introduced – and the Bush administration issued a threat to veto it last January. Civil liberties advocates took the civil rights commission meeting as an opportunity to bang the drum for the bill and voice concerns about the Patriot Act in its existing form. “Passage of the SAFE Act would represent just one step in restoring basic freedoms,” said Timothy Edgar, legislative counsel for the American Civil Liberties Union.
Edgar blasted the law’s expanded record-gathering powers, which allow investigators to obtain records from libraries, bookstores and other businesses without telling the subject of the investigation. Under the Patriot Act, federal investigators no longer have to stipulate their suspicions that public records belong to a spy, terrorist, or some other malicious foreign agent, said Edgar. The law allows federal officials to demand the records for any reason.
Attorney General John Ashcroft has said that that particular provision has never been used, but nevertheless, Edgar contended, “the effect is to put the privacy of many more Americans at risk.”
Edgar also took issue with a provision in the law that allows investigators to conduct so-called sneak-and-peak searches of a suspect’s home.
Unlike most searches, in which a person is handed a search warrant just before or during a search, in sneak-and-peak searches the government can delay telling the suspect for a “reasonable” time, according to the Patriot Act, but does not define what that means.
Oakar, who served in Congress from 1977 to 1993, said that the Patriot Act diminishes the rights of non-U.S. citizens who may be detained or deported under the law. “It allows the detention and deportation of non-U.S. citizens if they associate with any activity. Let’s say they attend a speech that’s controversial – it could be anything. We’re not talking about terrorist speeches,” said Oakar.
Oakar said that about half the complaints her organization has received – about 350 a week – were from Arab Americans or people with similar physical characteristics who said they were wrongfully detained or deported.
Oakar’s criticism, however, “blurs potential and reality,” said the Heritage Foundation’s Rosenzweig.
“To be sure, many aspects of the Patriot Act and other government responses do expand the power of the government to act,” he said.
“But by and large, the potential for abuse of new executive powers has proven to be far less than critics of the Patriot Act have presumed it would be.” Caitlin Harrington can be reached via charrington@cq.com
Source: CQ Homeland Security