Amend the Patriot Act?

January 11, 2002

Most Americans are pleased with the progress in fighting terrorism. But many legislators and political commentators are becoming increasingly concerned about the abuse and misuse of laws hastily passed to combat terrorism. They are beginning to ask if anti-terrorism is anti-Constitution.

Congress overwhelmingly passed the USA Patriot Act in October. In fact, Russ Feingold (D-WI) was the only senator to vote against it, noting that it would be easier to catch terrorists in a "police state." And that is precisely why many are calling for a second look at the Patriot Act. In fighting terrorism, the bill also seems to be fighting liberty.

Consider some of its key provisions:

  1. The Patriot Act weakens grand jury secrecy. Already there is criticism that grand juries have become mere tools of the prosecution and have lost their independence. By destroying its secrecy, any federal official or bureaucrat can "share" grand jury testimony or wiretap information.

  2. The Patriot Act weakens Fourth Amendment protection against unreasonable searches and seizures. Under the Act, law-enforcement agencies can in "rare instances" search a person's home without informing that homeowner for up to 90 days. This so-called "sneak and peek" provision can be used to sneak into your home, and even implant a hidden "key logger" device on a suspect's computer (allowing federal officials to capture passwords and monitor every keystroke).

  3. The Patriot Act weakens equal protection of the law. Formerly habeas corpus protected citizens and foreigners from warrantless arrest and imprisonment. Now an alien can be arrested and held without being charged for six months. Imprisonment can be continued for another six months "on suspicion." Apparently the Act does not specify how many times imprisonment can be renewed.

  4. The Patriot Act weakens financial privacy. The bill added additional amendments and improvements to the Bank Secrecy Act which already encourages FDIC member banks to profile account holders and report to the government (FBI, IRS, DEA) when you deviate from your usual spending or deposit habits. The Act exempts bank employees from liability for false reporting of a money laundering violation.

  5. The Patriot Act expands the definition of terrorism to include relatively minor offenses. The definition includes actual terrorist offenses (homicide, arson, assassination), but also includes other offenses such as the destruction of government property. One commentator pointed out this could even include a teenager throwing rocks through a post office window or a human rights activist who vandalizes a sign outside a dictatorship's government office.

I believe Americans should strongly support President George W. Bush and Attorney General John Ashcroft in their attempts to track down terrorists and bring them to justice. But Congress put too much power in the hands of the executive branch and that power could easily be abused by this administration or future administrations.

President John Adams used the Alien and Sedition Act to imprison his political enemies and curb newspaper editors critical of him. President Woodrow Wilson permitted his attorney general (Mitchell Palmer) to stop political dissent during the Palmer Raids. And President Franklin Delano Roosevelt interned thousands of Japanese-American citizens during World War II.

But some of the greatest expansion of powers have come under Republican presidents. The first Republican president, Abraham Lincoln, suspended the writ of habeas corpus. This led to the imprisonment of physicians, lawyers, journalists, soldiers, farmers, and draft resisters. Sixteen members of the Maryland legislature were arrested in order to prevent them from voting for their state to secede from the Union. By the time the Civil War was over, 13,535 arrests had been made.

And though liberal Democrats are often credited with expanding the size and scope of the federal government, Republican administrations are actually the ones that have expanded various police powers. RICO and nearly all the seizure laws (where police can confiscate cars, boats, even homes without due process) were passed by Republican administrations. Many fear the Patriot Act of 2001 may be just one more example of expanded police powers provided to government during a Republican administration.

Dana Milbank wrote in the Washington Post (Nov. 20, 2001) that "The Sept. 11 terrorist attacks and the war in Afghanistan have dramatically accelerated a push by the Bush administration to strengthen presidential powers, giving President Bush a dominance over American government exceeding that of other post-Watergate presidents and rivaling even Franklin D. Roosevelt's command."

Tim Lynch (director of the Project on Criminal Justice at the Cato Institute) said, "A single individual is going to decide whether the war is expanded to Iraq. A single individual is going to decide how much privacy American citizens are going to retain."

Congress must revisit this important topic of anti-terrorism and modify some of the provisions of the Patriot Act. Congressional hearings should be convened to fully debate such controversial proposals as the "roving wiretap" and the "sneak and peek" provisions.

Congress should also pass legislation that would sunset all aspects of the Patriot Act. The bill currently has sunset provisions that apply to selected portions of the legislation. But sunset provisions do not apply to the expanded powers given to the federal government which weaken the Fourth Amendment protections we are guaranteed under the Bill of Rights. The bill was touted as an emergency wartime measure, but some of the most dangerous aspects of the bill would continue on even after America wins the war on terrorism. Emergency wartime powers should not continue into peacetime.

This administration needs some powerful weapons to fight terrorism. But Congress put too many in the hands of the president and attorney general when they hastily passed the Patriot Act. It is time to revisit this bill and make some necessary changes.