The Patriot Act - is it a threat to our freedoms or a mechanism to defend our country and its citizens? Or is it some of each? The League of Women Voters recently sponsored a public meeting to discuss the Patriot Act and the Bush administration's proposed expansion of its powers. Thomas A. Schweitzer, professor of Law at the Touro College Law Center, led a discussion of interested citizens in the Port Washington Public Library.
In her introduction, Edna Vincenti, president of the League of Women Voters (LWV) Port Washington-Manhasset, explained that the LWV is a nonpartisan organization that encourages citizens to participate in government and to influence policy through education and advocacy. In this spirit, the organization arranged for an educational meeting on this important issue. Vincenti said that, although the LWV never endorses particular candidates, they sometimes adopt a position on individual issues. They have not taken a position, at least as of now, on the provisions of the Patriot Act. Their website, www.lwv.org, contains a number of links to sites that provide information on civil liberties vs. security.
Professor Schweitzer, who teaches constitutional law and first amendment rights, began by handing out copies of relevant excerpts from the constitution, including the Bill of Rights. He explained that the 164-page Patriot Act (an acronym for Protecting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) was hurriedly enacted into law on Oct. 24, 2001 in the wake of the September 11 attacks, at the behest of Attorney General John Ashcroft. Schweitzer said that the usual process of Congressional committee review and so forth were bypassed. He commented that after September 11, "We became aware how vulnerable we are."
Schweitzer pointed out that many of the provisions of the Act are very broad, so it remains to be seen what its precise impact will be. "It is a work in process," he said. "Whether it threatens our liberties depends on how the government implements it and on the results of the inevitable constitutional challenges." He added, "There is an inevitable conflict between our civil rights and the government's need to protect us." Schweitzer opined that the most significant constitutional provisions affected are the first, fourth and sixth amendments. Respectively, these are (1) freedom of speech and the press, and right to petition the government; (4) freedom from unreasonable search and seizure; and (6) the right to due process, including the right to a speedy trial, to be informed of the nature of the charges and to confront one's accusers.
Schweitzer gave some background on the issue, saying that government typically has threatened our rights when our security is threatened, or when we perceive it to be threatened. For example, the Alien and Sedition Acts (1798), passed in anticipation of war with France; the internment of the Japanese during World War II, and the McCarthy hearings of the 1950s, which many described as "witch hunts." Schweitzer pointed out that the Patriot Act is built on previous statutes and executive orders.
Schweitzer said, "In my view, this Act contains provisions which are a threat to civil liberties." Highlighting just a few, he first cited the sharing of information among government agencies. He said that he agrees with the basic goal of information sharing -- had there been more sharing among intelligence agencies, perhaps we could have avoided the September 11 bombings. However, there are provisions that he disagrees with, including allowing grand jury information to be shared without a court order, which might be used to share information for political purposes, as has been done in the past. Second, the Act dispenses with the requirements to reveal a warrant to the suspect before the fact where foreign groups or "terrorists" are involved. This could permit what are called "sneak and peek" searches, where the subject is not notified until after the fact, and therefore cannot contest the search in advance. Furthermore, the Act does not make any distinction between information for criminal prosecutions and criminal activities; therefore, federal law enforcement authorities could use this provision in criminal investigations. In addition, the new law permits surveillance of e-mail, web surfing and the like. Although officially they cannot record content, there is a question about the definition of the word "content." For example, the subject line of an e-mail can indicate content, as can the URL (address) of a website. The Patriot Act also expands the use of wiretaps, requiring the government only to certify that the information is "relevant."
Another concern, said Schweitzer, is that the statute has a very broad definition of "terrorist." Previously it only applied to groups designated by Secretary of State. Under the current definition, which includes domestic groups, it could conceivably apply to damage created by a group engaging in civil disobedience. For example, PETA, Greenpeace, those who demonstrate at World Trade Organization meetings, nuns who take a hammer to nuclear warheads, or even a group of demonstrators who inadvertently block an ambulance on its way to an emergency.
Another major rights issue, according to Schweitzer, regards the detention of aliens. He said, "Article I, Section 9 is one of the greatest protections in the constitutions. It states that the government cannot detain without posting criminal charges." Although the Patriot Act says seven days, the president had issued a prior regulation that allows the INS to detain aliens indefinitely. Over 1000 aliens have been detained for many months; in some cases without notifying families. Legal representation has been denied. Schweitzer said that Section 4.12 of Patriot applies only to those whom the Attorney General says are engaged in terrorist activities, but the interim regulation applies to all. Schweitzer said, "The Supreme Court has held that the right of due process applies to all residents, not just citizens. To my mind, this regulation is in conflict with the Supreme Court decision."
Schweitzer was also worried about the loss of attorney client confidentiality. He said, "Everyone is entitled to confidential communications with an attorney." Regulations issued on Oct. 31 allow the government to monitor conversations where there is a "belief that these communications might be a way of communicating." He cited the case of Lynn Stewart, a Manhattan attorney who was charged with being a conduit for messages from her client to terrorist groups. (The judge dismissed the charges, but she was recently re-indicted). He added, "In the past such surveillance was allowed in limited circumstances, but a judge's approval was needed. Now the Department of Justice can approve the surveillance."
After citing other threats to civil liberties inherent in the Patriot Act, Schweitzer said, "It would be ironic if we gave up those very freedoms that we are trying to protect." He concluded by quoting Benjamin Franklin, "Those who can give up essential liberties for a little safety deserve neither liberty nor safety."
A very lively question-and-answer period followed. A major concern was the provision of the Patriot Act that requires libraries, when asked to do so, to provide records on books and other materials borrowed by their patrons. Schweitzer responded, "The government can request all kinds of records, including library records." Other issues covered included the idea of a national identity card, government access to websites visited, the prisoners being held at Guantánamo, the "roving wiretap" that allows a tap of an individual regardless of what phone he or she is using, the chilling effect on the press of the recent political climate, and the removal of the judiciary from the process. In response to one questioner, Schweitzer said that the courts cannot do anything until someone brings a challenge based on a violation of specific rights. Schweitzer said, "There will have to be a real live dispute; I can't get an opinion based on intellectual curiosity. I hope that the administration will exercise restraint, but the language is so broad. We should rely on narrow language, not the good graces of any government." He added, "If I were to grade Ashcroft on first amendment rights, I would have to give him an F. Our intelligence has been inadequate. We are not effectively using the powers we do have."
The League of Women Voters is planning a discussion about the proposed revision to the Patriot Act, commonly referred to as Patriot Act II, some time in 2004.