Not much safer but a lot less free

By Candace M. Carroll

Carroll

As the nation lived through the second anniversary of Sept. 11, Attorney General John Ashcroft mounted a national road show to defend the increasingly discredited USA Patriot Act, passed by a pressured Congress in the immediate aftermath of the terrorist attacks. This "charm offensive," as the New York Times dubbed the tour, bore the twin hallmarks of so many of the Bush Administration's actions since 9/11: secrecy and deception.

While growing numbers of Americans unhappy with Patriot were relegated to holding protest signs on sidewalks outside of auditoriums, Ashcroft was swept inside to deliver canned and misleading speeches to closed audiences of law enforcement officers for the benefit of local television.

The Patriot Act expanded federal law enforcement and intelligence powers at the expense of civil liberties and meaningful judicial oversight. In reaction, more than 160 local governments, including 46 here in California and many in America's heartland, and three state governments have adopted resolutions critical of Patriot. A number of government reports, including one by DOJ's own Inspector General, cite significant post-9/11 abuses by the federal government. And community organizations as diverse as the Eagle Forum and the ACLU have become strange bedfellows in order to rein in Patriot's excesses.

Many members of Congress, realizing that Patriot went too far, have introduced measures to bring Patriot back in line with the Bill of Rights. The most recent, the Safety and Freedom Ensured (SAFE) Act of 2003, introduced by Sens. Larry Craig (R-Idaho) and Richard Durbin (D-Ill.), narrows several offensive sections of Patriot and increases the number of sections scheduled to sunset in 2005.

Yet, instead of facing up to these concerns, the Department of Justice has attempted to deceive the public about controversial provisions of Patriot and whether or not they are needed to effectively fight terrorism.

On its recently launched website, the DOJ claims that the Patriot Act "simply took existing legal principles and retrofitted them" and that the act "provided for only modest, incremental changes in the law." The truth is that Patriot made dozens of significant changes to the law, including a handful that radically undercut civil liberties. Here are a few of them:

• The FBI now has the power to obtain records concerning anyone at all, even those not suspected of criminal activity or espionage, and prohibits organizations forced to disclose their records from telling anyone about it (Section 215). This authority gives the FBI access to library, Internet and e-mail records; medical and psychiatric files; financial information; membership lists of religious institutions; and even — as Ashcroft has admitted to Congress — genetic information.
  
  
• For the first time in our nation's history, the FBI is permitted under Section 218 to disregard the Fourth Amendment's usual requirements — including probable cause and notice — in some criminal investigations.
  
  
• The FBI may now, under Section 213, conduct searches in criminal investigations, however minor the crime, without notifying the targets of the searches until weeks or even months later. The Justice Department claims that this "sneak-and-peek" provision is necessary to allow the FBI to conduct investigations "without tipping off terrorists." However, even before 9/11, the law permitted the FBI to conduct such searches in foreign intelligence investigations. Section 213 actually expands the sneak-and-peek authority to run-of-the-mill criminal investigations. That may be why more than 300 members of the House of Representatives, from both sides of the aisle, voted recently to prohibit these searches.
  
  
• Section 802 introduced a definition of "domestic terrorism" broad enough to include groups like Greenpeace and Operation Rescue.

Late last month, President Bush asked for even broader powers. Yet, this assault on civil liberties has not helped us prevent terrorism. While the DOJ claims that "over 515 individuals linked to the Sept. 11 investigations have been deported," the truth is that immediately following the attacks, the department imprisoned hundreds of immigrants who had not committed any crime, often denying them access to their families and attorneys, and deported many based on minor immigration violations. To this day, the government refuses to release the names of those who were imprisoned.

We do know, however, that of 56 people charged as terrorists in early 2003, at least 41 of them had nothing to do with terrorism. They include 28 Latinos working illegally at the airport in Austin, Texas; eight Puerto Ricans charged with trespassing on Navy property; and a Middle Eastern college student charged with paying a stand-in to take his college English proficiency test.

Lawbreakers? Yes. Terrorists? Hardly.

Terrorism is a real threat, but trampling on our civil liberties has not made us safer. To fight terrorism, we must address the governmental lapses that led to Sept. 11. If that approach is taken, we can be both safe and free.

• San Diego attorney Candace M. Carroll is a member of the national board of the American Civil Liberties Union and serves on the board of the ACLU of San Diego and Imperial counties.