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Voiding judicial
oversight and restricting 4th Amendment limitations on government
searches and seizures were the main changes to law of the new
PATRIOT anti-terrorism bill according to Beryl Howell, General
Counsel to the Senate Judiciary Committee. She spoke to the American
Bar Association's Standing Committee on Law and National Security
on November 14th.
Attorney General Ashcroft appeared once, for one-and-a-half hours
(he left early), to explain Administration positions and then
refused to return to finish the hearings during the next three
weeks before the final vote, according to Howell. Senators were
told to send their questions in writing, but many didn't receive
answers until after the vote; although part of the delay was caused
by the anthrax evacuations. "There was a clear appetite to pass
any bill, no matter what it said," said Howell, and, "Many people
were uneasy about the bill and its unlimited authority for surveillance."
The House of Representatives Judiciary Committee hearings and
vote were ignored. Majority Leader Hastert then bypassed the hearings'
conclusions and negotiated with the Senators himself. Congressmen
only received copies of the giant bill a few hours before having
to vote on it.
The "common theme of the Administration's law proposal was to
eliminate judicial review," said Howell. As regards sharing information
between intelligence agencies, grand juries, police and others,
laws already existed to allow this. What Ashcroft wanted and got
was the elimination of judicial oversight. Also the 4 year sunset
provision does not apply to this element of information sharing.
(At a conservative meeting in Washington, Congressman Bob Barr stressed
that grand jury testimony, subject to little judicial restraint,
was so much composed of hearsay evidence that there were good
reasons why judges should have a say in how the information is
disseminated.)
Illegal Gun Possession
and redefining ordinary computer crimes as "terrorism" were two
other Ashcroft proposals. These were modified in the final bill
to only be classified as "terrorism if done with the intent of
changing U.S. government policy and to cause serious injury or
death," according to Solveig
Singleton's analysis for the Competitive Enterprise
Institute. Detaining foreign nationals suspected to be terrorists
indefinitely without judicial restraint or proof was also somewhat
modified. Expanding the "seizure" laws for forfeiture of assets
without judicial action was also proposed by Ashcroft's Justice
Department for any alleged crime. This also was modified. A major
purpose of seizures is to prevent the accused from having funds
to hire defense from having to hire defense lawyers. Also the
monies are often then kept by local police departments.
A large majority
agreed that evidence obtained through torture in some foreign
(e.g. Middle Eastern) nations should be inadmissible in US courts.
The Administration originally proposed that it be allowed. It
appears that the FBI and CIA sometimes deliver
suspects to foreign police for "questioning" with foreign
methods. A sunset provision of sorts limits some of the provisions
to a future new vote. Areas of general agreement included "roving
wiretaps" to allow general taps over an area and "pen register,"
which empowers police to see, without a warrant, to whom and from
whom e-mail is coming and going, but supposedly not to read the
e-mail content nor to use it court.
The
bill's passage was soon followed by new Administration regulations
allowing police to eavesdrop on communication between the accused
and their attorneys, and the establishment of military courts
to bypass America's civilian judiciary. The latter was defended
by citing the precedents of the American revolution's military
courts (before there was a constitution), Lincoln's military courts
during the Civil War, and Roosevelt's military trial and execution
of some German spies.
The battle to restrain the anti-terrorism bill's more blatant
police state agenda showed the marked schism between civil libertarians
and big-government conservatives (BigGovCons). Their names compile
a Who's Who of Washington's biggest foundations. The most interventionist,
even imperialist, conservatives have been the ones least questioning
of – and/or totally supportive of – expanded police powers.
The Heritage Foundation was notable by its absence on these issues
(except for some concern about financial privacy). Others, which
either supported the bill or left its provisions unquestioned,
include National Review (the editor of National Review
Online is married to Ashcroft's chief speech writer), The American
Enterprise Institute, and most of the Republican establishment.
It seems no accident that the BigGovCons are the ones who most
support a permanent Warfare State and generally support American
world empire. They are consistent in recognizing that civil liberties
pose a constraint on foreign military ventures.
The conservative battle in Washington was led by Paul Weyrich's
Free Congress Foundation's Coalition
for Constitutional Liberties,
Grover Norquist's Americans for Tax Reform, Phyllis Schlafly's
Eagle Forum, the Competitive Enterprise Institute and many smaller
conservative organizations that signed on to the American Civil
Liberties Union modifications proposals (for example, "sneak and
peak"). All large
Libertarian organizations also supported restricting the new law.
In testimony to the House Judiciary Committee, J. Bradley Jansen,
of the Free Congress Foundation, cautioned that, "Congress should
take another look at Sec. 123 which would authorize forfeiture
of funds by a small business owner for simply making a mistake
on one of the many reporting requirement forms." He also
testified that "Law enforcement already has the authority to seize
terrorist assets without trial. The expanded power (sought by
Ashcroft) to seize assets without trial for any alleged crime
. . . goes beyond . . . what Congress should allow." All US businesses
are
now required by the anti-terrorism law to advise the
Feds of any cash purchases by their customers that total $10,000
or more.
Mr. Utley is the Robert A. Taft Fellow at the Ludwig von
Mises Institute on Constitutional and International Affairs. He
is a graduate of Georgetown University's School of Foreign Service,
studied languages in Europe, and lived 15 years in South America.
He was in business and then served as a foreign correspondent
for Knight/Ridder newspapers. He has served on the Board of Directors
or Advisory Boards of many organizations including Accuracy in
Media, Council for Inter-American Security, and the Conservative
Caucus. Send him e-mail
and see his Mises.org Articles Archive.
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