'Patriot' games
Mend it or end it? A better question is why Bush wants to make the Patriot Act an election issue.

By ALAN BOCK Senior editorial writer, The Orange County Register abock@ocregister.com

You feel like pinching yourself, but it's true enough. On April 6, the American Civil Liberties Union filed a lawsuit challenging one of the provisions of the "USA Patriot" Act, passed in haste by Congress after 9/11. Under provisions of that same act, the ACLU was not allowed to make its lawsuit public.

Three weeks later, after intense negotiations with the government, the ACLU was able to announce its lawsuit. But it could only release a redacted version; some pages had more than half the lines blacked out.

Even as the United States calls for other countries to be more open if they want to be good treaty and trading partners, the Patriot Act is increasing the range of U.S. government activities that can be kept secret from the public.

Now the cleverly named (but not precisely descriptive) Patriot Act is in play again, although in some ways it's a little curious. President Bush has gone out of his way to mention the act at recent campaign stops and administration people at the 9/11 hearings made a point of contending that the Patriot Act was the key to tearing down barriers between the FBI and the CIA and other agencies of domestic law enforcement and foreign intelligence so that different parts of the government could communicate with one another.

Does it really make much difference whether the Patriot Act is made permanent or not? In a word, yes: The fallout of it becoming permanent would include long- term deleterious effects on your freedom and mine. That's why it's important to understand the most dangerous provisions and the political campaign now underway to keep it in place.

Robert Levy, a constitutional scholar at the libertarian Cato Institute, finds the administration push just now rather strange. "The 'sunsetting' [out of existence] of certain provisions of the act isn't scheduled until the end of 2005," he said. "None of the reform proposals is going anywhere in an election year, especially with a veto promise from the president. Why raise it as an issue now, unless he has polling data none of the rest of us knows about?"

Tim Lynch, who heads the criminal justice division of Cato, thinks he has a partial answer: "The Patriot Act is at something of a legislative standstill. Reformers don't have the votes to change the act just now, but the administration doesn't have the votes to make the provisions of the act that are scheduled to sunset in 2005 permanent either.

"The administration may be hoping that a presidential-level campaign on behalf of renewing the act will drum up enough votes so they can have their way."

Grover Norquist, head of Americans for Tax Reform, doesn't think this is a sound calculation. "Why make the Patriot Act an election issue," he asks, "especially when much of the president's conservative base considers it problematic? I just don't think the atmosphere of compliance that existed right after 9/11 is there today, and I don't think they can drum it up again. It just doesn't make sense to me."

Whether it makes sense or not, the Patriot Act is in play. Here are some of the key provisions that are either now unnecessary, having been overtaken by other events and practices, or are downright harmful to individual liberties.

FISA COURT ALREADY IN PLACE

The case made by administration officials before the 9/11 commission is that part of the reason 9/11 might have happened is that domestic law enforcement and foreign intelligence agencies, principally the FBI and the CIA, didn't communicate with one another and that the Patriot Act fixes the problem. There's some truth in this, but subsequent developments might have made it superfluous.

The Patriot Act did put the CIA back into the business of spying on Americans. It gives the CIA director the power to identify domestic intelligence requirements and urges foreign intelligence agencies to share information with law enforcement agencies. It also lowers the barriers that have deterred domestic police agencies from sharing information with intelligence agencies.

The point now might be moot, however.

The Foreign Intelligence Surveillance Act, passed in 1978, created an exception to the fairly strict Fourth Amendment search-and-seizure requirements for wiretaps or searches, and established a special court to administer requests to do surveillance on suspected foreign agents. That court never had turned down a request until 2002, when it rejected an administration request for surveillance authorization, citing it was too broad and based partly on false and misleading information.

Attorney General John Ashcroft appealed that decision and an appeals court ruled that the FISA court had misinterpreted the statute and that the surveillance requested was to be authorized. That decision accomplished, for those who believe the government needs broader surveillance powers post-9/11, much of what the Patriot Act did. It isn't exactly what civil liberties advocates had in mind, but it does open the argument that in its wake the Patriot Act is superfluous.

There's also a strong argument that much of the non-communication between the CIA and the FBI had more to do with competing cultures and turf jealousy than with legal limitations. Passing a new law won't automatically make the two agencies any more likely to be buddy-buddy. Conversely, if the terrorist attacks have induced a new attitude of cooperation, statutes may not be necessary.

RIGHT TO DEMAND CUSTOMER RECORDS

The case the ACLU brought and couldn't publicize highlights another potential danger in the Patriot Act. The act gives the FBI virtually unchecked authority to issue "National Security Letters" (NSLs), which can demand sensitive customer records from Internet service providers and other businesses regarding people under investigation - and forbid the business from notifying the customer that the records have been searched. This kind of gag order trespasses on First Amendment free speech rights, and the NSL power is chilling in itself. Furthermore, while the Patriot Act was sold as a way to increase the effectiveness of government actions against terrorist threats, its provisions increasingly have been used in ordinary criminal cases. Recently, for example, it was used to gather evidence about a Las Vegas strip-club owner accused of bribing municipal officials. Not exactly the stuff of terrorism.

EXPANDED DEFINITION

OF TERRORIST THREAT

So far the act has not been used against political groups, but its expanded definition of terrorism carries the danger. It could transform protesters into terrorists if their activities "involve acts dangerous to human life" to "influence the policy of a government by intimidation or coercion." Could that someday include mass demonstrations?

"Conservatives remember that the RICO Act was supposed to be used against the Mafia, but it ended up being used against pro-life demonstrators," Norquist told me. "They also remember the asset-forfeiture laws were supposed to be used against Colombian drug lords but were used to take property from people living near national forests. It's hard to know in advance when and how such powers will be abused, but it's fairly certain that they will be eventually."

Cato's Lynch thinks when Patriot Act renewal becomes an issue, those with reservations should insist on considering each provision separately.

WHEN WILL A VOTE OCCUR?

The best estimate is that the Bush administration will push to make the Patriot Act permanent - preferably on a single, up-or-down vote - when it believes it is most likely to succeed and most politically advantageous to do so. This could be before the November election, when Republicans in Congress will be most inclined to support whatever the White House asks for.

But reservations, from perhaps unexpected sources, are rampant.

In March the city council of Richmond, Va., became the 62nd governing body in the country to pass a resolution asking Congress to pass the "Safe and Free" reform legislation. That legislation is co-sponsored by Idaho Republican Sen. Larry Craig - who just might be the most conservative member of the Senate - and moderate Democrat Dick Durbin of Illinois.

Critics of the Patriot Act include not only the predictable ACLU and American Library Association, but the National Rifle Association and American Conservative Union. This coalition just might give the administration pause - depending on what tracking polls report - and deservedly so.