Because of the confusion regarding the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (gotta love those Congressional staffers and their acronyms!), I did a little research to see just what the Patriot Act really said. It is 132 pages long in PDF format, and difficult to follow at times as it amends existing laws by replacement or addition of words out of context within this document itself. Relative to other Federal laws, it really isn’t that extensive.
I first went to Thomas at the Library of Congress where the official register of legislative activity is maintained for public consumption. At the time I didn’t know precisely what section of the Federal Code the law was placed in, so I did a search on “Patriot Act” and found about 40 references, including the current bills to rescind the “sunset clause”. But, no version of the law itself. Google took me to the ACLU web site. There they have a PDF of the law, and a flyer with their concerns. I thought it might be a good idea to look at their concerns and verify them in reading the law. These are the issues identified in the law itself:
Expands terrorism laws to include “domestic terrorism” which could subject political organizations to surveillance, wiretapping, harassment, and criminal action for political advocacy.
Expands the ability of law enforcement to conduct secret searches, gives them wide powers of phone and Internet surveillance, and access to highly personal medical, financial, mental health, and student records with minimal judicial oversight. Allows FBI Agents to investigate American citizens for criminal matters without probable cause of crime if they say it is for “intelligence purposes.”
Permits non-citizens to be jailed based on mere suspicion and to be denied re-admission to the US for engaging in free speech. Suspects convicted of no crime may be detained indefinitely in six month increments without meaningful judicial review.
Personally, I don’t know what they really mean by “minimal judicial oversight” and “meaningful judicial review. Nothing in the law allows law enforcement to take actions without judicial approval–warrants are required. additionally, it requires the Attorney general to appear before Congress and detail those investigations:
“SEC. 502. CONGRESSIONAL OVERSIGHT.
“(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.
“(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period–
“(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and
“(2) the total number of such orders either granted, modified, or denied.”.
Their concern that political organizations might be subject to investigation might be warranted if this hadn’t already been covered by Congressional oversight as well:
“(A) NOTICE.–
“(i) TO CONGRESSIONAL LEADERS.–Seven days before making a designation under this subsection, the Secretary shall, by classified communication, notify the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees of the House of Representatives and the Senate, in writing, of the intent to designate an organization under this subsection, together with the findings made under paragraph (1) with respect to that organization, and the factual basis therefor.
“(ii) PUBLICATION IN FEDERAL REGISTER.–The Secretary shall publish the designation in the Federal Register seven days after providing the notification under clause (i).”
This refers to the requirement for any group to be subject to surveillance under the law to be designated by the Secretary of State, with review by Congress, and the name of the organization published in the Federal Register. Not very secretive.
Other concerns of the ACLU outlined in their flyer have to do with Executive actions already in place:
8,000 Arab and South Asian immigrants have been interrogated because of their religion or ethnic background, not because of actual wrongdoing.
This is the standard “law enforcement” approach to anti-terrorism which was extant prior to 9/11. There is no mention of whether these “immigrants” are here legally or not, whether “wrongdoing” includes only terrorism laws or any petty crimes, or if there may have been links with these folks to other, known terrorists or organizations. The implication is that they were simply questioned based on their being (presumedly) Muslim. I doubt law enforcement has time to pick up people at random.
Thousands of men, mostly of Arab and South Asian origin, have been held in secretive federal custody for weeks and months, sometimes without any charges filed against them. The government has refused to publish their names and whereabouts, even when ordered to do so by the courts.
This is reference to, I believe, detainees at Gitmo. There is good reason not to publish their names: Accomplices will operate in the dark. I don’t know whether it is common practice for the ACLU to insist on the publication of names for “ordinary” criminals or not. If someone is looking for this person, they might be smart to ask the Feds if that person is in custody. Or maybe they don’t want to risk that. Further, an “armed combatant” is not a criminal detainee, but more akin to a prisoner of war. POWS, for example, are held indefinitely to keep them from rejoining the fight. The Geneva Accords we hear so much about prohibit a captured soldier from returning to battle. Yet some detainees who were released have already rejoined the fight. There are oversight provisions for this as well:
“(6) LIMITATION ON INDEFINITE DETENTION.–An alien detained solely under paragraph (1) who has not been removed under section 241(a)(1)(A), and whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person.
That falls under the semi-annual review by Congress.
The press and the public have been barred from immigration court hearings of those detained after September 11th and the courts are ordered to keep secret even that the hearings are taking place.
Why is it important for deportation hearings to be public? If fact is all that matters, why open the hearing to people wanting to make a political point? Here is the judicial oversight the ACLU says it wants, yet even that doesn’t satisfy what they really want. So what do they want?
The government is allowed to monitor communications between federal detainees and their lawyers, destroying the attorney/client privilege and threatening the right to counsel.
Any court presented with eveidence gleaned from such monitoring would throw it out. The reason for monitoring such discussion is to get leads on other groups or planned operations. Let’s not let an attack actually take place if we can avoid it.
New Attorney General Guidelines allow FBI spying on religious and political organizations and individuals without having evidence of wrongdoing.
As explained above, he can’t do this unless the group is on the approved list published in the Federal Register.
President Bush has ordered military commissions to be set up to try suspected terrorists who are not citizens. They can convict based on hearsay and secret evidence by only two-thirds vote.
A two-thirds majority is standard for military courts-martial. I don’t like the idea of unanimous jury decisions for the most part because a defense attorney can focus his attentions on a single juror and get an acquittal.
American citizens suspected of terrorism are being held indefinitely in military custody without being charged and without access to lawyers.
Actually, I heard John Kerry phrase it in a slightly different manner. He said lawyers aren’t being given access to detainees. Which do you think is more important in his mind? Why, then, is there concern about attorney/client privilege? I can’t think of a single American citizen being held in this condition. Perhaps there are. The ones I am aware of just recently had their hearings before the Supreme Court.
That’s as simple an explanation as I can give in this forum. I would recommend anyone with concerns about the law itself to download a copy and read it. I bet I’m one of the very few non-lawyers in this country who have done it. As John mentioned in a comment on an earlier post, the sunset clause is a good thing. It makes Congress go back and address the issues after some time in place. I only wish they would do this with some intellectual integrity rather than in a political mode.
****UPDATE****