November 1, 2001
Beware This Bill
As one who supported the confirmation of John Ashcroft as attorney general, Sen. Russell Feingold (D-Wis.) is certainly no radical. But last week, Feingold, chair of the Constitution subcommittee of the Senate Judiciary Committee, cast the lone Senate vote against final approval of the so-called "USA PATRIOT" (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act.
Even the bill's title, Feingold observed, was part of what he termed the "relentless" pressure to take swift action -- sweeping aside all dissent and at least inferentially branding as un-American those who would dare to question its provisions. "This is one of the ridiculous things they do in Washington," Feingold told The Washington Post. "They want to intimidate people."
The legislation, which President George W. Bush signed Friday, Oct. 26, was presented in classic take-it-or-leave-it fashion, with little opportunity for input or review.
Bypassing the regular rules of procedure, a small group of senators forced Congress to vote on a mammoth 164-page measure that our senators and representatives had not yet even had the chance to read. This unseemly haste could perhaps be excused if the final antiterrorism bill was either well-crafted or innocuous. Unfortunately for us all, it is neither. A principal infirmity of the USA PATRIOT Act is the broader authority it gives in all federal criminal investigations -- not just those involving suspected terrorists -- to secretly search homes and offices. As Feingold observed, "The whole tenor of the debate was: 'Let's grab as much as we can,' given the fear of terrorism."
The new law allows law enforcement agencies to enter a house, apartment or office with a search warrant when the occupant is away, search through property, videotape or photograph the residence's contents, and in some cases seize physical property and electronic communications, but not tell the occupant until later.
Without such notice, a person cannot point out mistakes in a warrant or ensure that the search is properly limited. Though exceptions currently exist for extraordinary cases, the new law greatly expands the scope of this "sneak and peek" authority to every kind of criminal case (not just those involving terrorism) and to every kind of search (physical or electronic). Most ominously, and unlike a few of the Act's other provisions, this expanded power will not expire in 2005.
Here are just a few of USA PATRIOT's other dangerous features:
It creates a broad new definition of "domestic terrorism" that could sweep in people who merely engage in acts of political protest and subject them to wiretapping and enhanced penalties.
It grants the FBI broad access to sensitive medical, financial, mental health and educational records about individuals without having to show evidence of a crime and without a court order.
It permits the attorney general to indefinitely incarcerate or detain noncitizens, based on mere suspicion, and to deny re-admission to the United States of noncitizens (including lawful permanent residents), for engaging in speech protected by the First Amendment.
It allows for the detention and deportation of individuals who provide lawful assistance to groups that have engaged in vaguely defined "terrorist activity" at some point in the past; groups potentially fitting this definition could range from Greenpeace to Operation Rescue to the African National Congress.
t broadly expands government power under the Foreign Intelligence Surveillance Act by breaking down the critical distinction between "foreign intelligence" and "criminal" investigations, allowing surveillance to proceed without meeting the Fourth Amendment's rigorous probable cause standard.
The Progressive Jewish Alliance (PJA) certainly recognizes that some increased investigative and preventive powers are warranted in the wake of the events of Sept. 11. But much within this omnibus legislation simply goes too far.
PJA has committed itself to serving as a national clearinghouse for the Jewish community to monitor abuses of this new law. While only a small number of USA PATRIOT's provisions (those expanding surveillance powers for tapping telephones and computers) will "sunset" in four years, Congress commonly renews these laws unless presented with overwhelming evidence of improprieties. Thus, vigilance on all fronts will be essential. PJA will be watching the watchers.
Douglas Mirell is an attorney and president of the Progressive Jewish Alliance. His e-mail address is firstname.lastname@example.org.