Vigilance Is Needed on Patriot Act

Covert searches. Warrantless wiretaps. Closed deportation hearings. The ability to seize records and assets without any demonstration of probable cause.

It’s enough to cause a former civil rights attorney and U.S. Solicitor General some sleepless nights, Drew Days III told a packed crowd at Vermont Law School last Tuesday.

In an address entitled, "Homeland Insecurity: Assessing the Threats to Constitutional Protections in Abnormal Times," Days suggested that it is time for a "vigilant public" to examine expanded federal powers "unleashed" by the USA Patriot Act.

Days, now a Yale Law School professor, was the U.S. Solicitor General under the Clinton administration and also served in the Justice Department from 1977-80, as assistant attorney general for civil rights. He was invited to VLS by the law school’s recently organized American Constitution Society.

In a sober message, Days compared the present situation with periods in the 1960s and 70s, when the federal agents and the military, under both Republican and Democratic presidents, employed civil-liberties-bending tactics to investigate perceived enemies of the state. Subjects of these investigations included, variously, those suspected of being Soviet sympathizers, participants in the racial unrest of the 60s, and members of groups, such as the Weather Underground, suspected of domestic terrorism.

Tactics used by federal agents at the time included mail theft, illegal wiretaps, and secret break-ins to obtain personal records.

Days told the crowd of mostly 20-something law students that his sleeplessness over Patriot Act powers comes because he’s seen—and fought—this kind of governmental "mission creep" before.

The Act expands federal investigative and prosecutorial powers, permitting, for example, "roving" wiretaps using multiple cell phones and "sneak-and-peak" searches, the latter requiring neither notification to those investigated, nor any "probable cause" threshold.

The law also permits inter-agency intelligence sharing, so information thus collected can be shared with local law enforcement agencies.

"This has, in effect," Days continued, "taken down the wall between foreign intelligence gathering and local criminal investigation."

The Patriot Act, he charged, "was sold as an anti-terrorism act, but it has really allowed the government to do criminal domestic intelligence."

The 200-page bill, presented to Congress just one month after the 2001 attacks, was probably adapted from a proposal already drafted by a Justice Department looking for more "tools" to fight organized crime, Days suggested.

The extraordinary powers granted by the law will have an impact on the rights of speech, association, search and seizure, legal counsel, and privacy, all guarantees of the Bill of Rights, Days said.

The Bush administration, he added, has not been shy about touting the application of Patriot Act powers to fight crime.

During his recent tour to promote the law, U.S. Atty. Gen. John Ashcroft, speaking to "hand-picked" audiences, regularly cited a decrease in crime as a benefit of the Patriot Act, Days said.

Since passage of the Patriot Act in Oct. 2001, the administration has proposed further extensions of federal intelligence-gathering power.

They include the Defense Department’s proposed "Total Information Awareness Program," which was designed to provide the government with "almost instant information"—bank and credit card records, e-mail, travel reservations, and more—"all without a warrant."

Another plan, with a "TIPS" acronym, would have used a volunteer corps of mail deliverers, meter readers, and truck drivers to gather and report information.

Both proposals "went down in flames, under heavy fire from Congress," according to Days.

More is on the way, however, Days warned. The administration’s proposed "Domestic Security Enhancement Act," or Patriot Act II, would extend powers granted in the first act and add new ones.

"Throughout all this, it has been Congress, not the courts, that has been trying to cut back" on these special powers, according to Days.

As he spoke in South Royalton last Tuesday, Days noted, the U.S. Senate Judiciary Committee was convening a hearing on the Patriot Act.

"I have a concern," he added, "that our courts are on recess and not taking a serious look."

Days conceded the government needed to react in order to respond to the threat of a terrorist network capable of the Sept. 11 attacks. The hastily-passed Patriot Act, however, amounts to "a blunderbuss approach" to security issues, he said.

"My concern is that in an effort to respond to real threats, we may have gone too far," Days said. "We have to make sure our individual rights are not listed among the casualties of the terrorism war."

More Concerns

Drew Days III isn’t the only attorney worried about the U.S. Patriot Act.

Benson Scotch, the former director of the Vermont American Civil Liberties Union, echoed Atty. Days’ warnings about the measure in a talk Oct. 8, at Randolph’s Kimball Library.

Like Days, Scotch focused on how beefed-up federal powers can be used to investigate and prosecute not only terrorists, but also "garden-variety criminals," and even protesters and dissenters.

Using an overhead projector, Scotch spotlighted specific troubling language in the law.

The "USA Patriot Act" name, he pointed out, is actually an acronym for "The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act."

The law defines "domestic terrorism," he explained, as "the violation of the criminal laws" … "that appear to be intended" … "to influence the policy of a government by intimidation or coercion."

The first oddity of this definition, Scotch maintains, is the vagueness about just which laws might be violated. Federal? State? Town?

The "appear to be intended" phrase, in a ground-breaking maneuver, moves the focus from what the accused actually did or thought, to what the prosecutor thinks he might have intended, Scotch said.

It has always been tough for prosecutors to prove intent, Scotch conceded, but lowering the threshold to "appear to be intended," he said, "is really crazy."

Using this legal definition, "a demonstrator could be tried as a terrorist," Scotch charged.

It’s not surprising for a long-time civil-liberties defender to be outraged, but Scotch noted that even the Council of Concerned Conservatives has posted reservations about the Patriot Act on its website.

Like Days, Scotch cited the law’s "sneak and peak" searches, which bypass Fourth Amendment protections of notification and probable cause.

Normally, law enforcement officials must prove probable cause—"which means a little more likely than not" —before a judge, to obtain a search warrant. Officers must also inform the target of the warrant exactly what it is they have been permitted to search for and seize.

Under the Patriot Act, said Scotch, "Probable cause is gone" in cases linked to terrorism.

The "sneak and peak" description alludes to the fact that notification can be delayed until weeks after the search is actually conducted.

Seizing Information

Significant attention has been given to the fact that the Patriot Act allows the government to seize library and bookstore records, but that is just the tip of this information iceberg, according to Scotch.

The Patriot Act can "require any person or entity to provide any tangible thing" that "may be related to an ongoing terrorist investigation," he said.

"It applies to anyone," Scotch said. "Libraries and booksellers have been the only ones who stood up and said, ‘This is terrible.’"

"If you want security," he added, "you better have libraries."

Scotch, a self-described "general gadfly," urged the 40 or so folks at the meeting to learn more about the bill and to express their concerns: "If you have an active, intelligent population, you can’t pull off this stuff."

He scoffed at the notion that challenging the government, during a time of terrorist threat, is being unpatriotic.

"There is nothing wrong with patriotism, nor with unity—which is not unanimity," Scotch said. "But unanimity is just a short hop and a skip from conformity, and conformity is just a half-step away from censorship."

By Sandy Cooch