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Why the Patriot Act Needs to Be Revised

Tuesday, 03 May 2005 12:00 AM

The provision authorizing different government agencies to share information about individuals who are not necessarily suspected of terrorism has also come under attack on civil rights grounds.

The vast majority of Americans understand that an appropriate balance must be struck between protecting national security and preserving individual rights. I personally believe where the two interests collide, national security usually should take precedence. How to make that decision in each instance is a good example of what is meant by the adage "The devil is in the details."

A New York Times editorial entitled "Revising the Patriot Act" was published on April 10, 2005. It was not shrill, but very careful in its analysis. Its reasonable tone might be attributable to the fact that former Attorney General John Ashcroft, bete noire of the American left, had resigned and been replaced by Alberto Gonzales. Although the Times opposed Gonzales' confirmation as attorney general, he has not been the subject of the kind of vilification that was directed at Ashcroft.

The well-thought-out Times editorial made the point that the provision allowing the government to secure library and medical records (Section 215) was too broad, allowing "all the medical records of a hospital, all the files of an immigration group – when it is investigating a single person."

The editorial went on, "It also is far too invasive; it is hard to believe the FBI needs to monitor library book circulation. If the searches are allowed, Section 215 should be tightened to give the government access only to records of a specific person it has legitimate reason to believe is involved in terrorism, not an entire database."

Here I depart from The Times' analysis, but only in part. I think it is proper to subpoena library records – looking to see if an individual may be borrowing material available in our libraries on how to make bombs or other weapons.

The Times' objection to the Act's "gag rule," which makes it illegal for the holder of the material to talk publicly about the search, e.g., to the press, has merit. The Times' position that "If the gag rule remains, it should be limited, so record holders can speak about the search after a suitable period of time, or talk about it right away without revealing who the target was," is partly right.

My view is that it is reasonable to provide a suitable time during which the public can comment. Permitting a librarian to speak immediately, but without mentioning the name of the suspected terrorist, is ridiculous. The alleged terrorist using the 42nd Street Research Library will know who the suspect is when he learns about the librarian's statement.

Sneak and peek, Section 213, lets the government "search a person's home, and delay telling him about it." The Times opposes the entire concept, but writes: "At the very least, it should apply only to terrorist cases, and not as it now does, to all investigations. It should also have clear guidelines for how long notice can be delayed."

Again, I depart from The Times to the extent that I support the provision in alleged terrorism cases, but believe notice provisions specifying when disclosure will be made, subject to court-ordered delays, are required.

Finally, The Times urges that information-sharing among government agencies should be limited to terrorism. Why not permit the sharing of information for all crimes, unless opponents can provide persuasive reasons to the contrary?

On September 29, 2004, the New York Sun reported on a decision by U.S. Southern District Court Justice Victor Marero, whom I have known for many years, in a case involving so-called national security letters (NSLs). According to the Sun, Justice Marero "struck down a portion of the Patriot Act that requires Internet service providers and telephone companies to secretly turn over customer records to the FBI without judicial review in terrorism investigations."

I wrote to Rudy Giuliani about the Marero decision. Quoting the New York Sun article, my letter stated:

"'On its face, the language of the order suggested that recipients could not even contact a lawyer, Judge Marrero found. Government records showed that hundreds of similar letters were issued between October 2001 and January 2003, but no one but Mr. Doe had ever been challenged in court, he noted.'" According to The New York Sun, ‘Judge Marrero warned that a gag order that could never be lifted could allow the government to cover up embarrassing or illicit activities ‘simply to save face.'"

I asked Rudy:

"Since you are without a doubt an expert and fully knowledgeable with respect to all provisions of the Patriot Act, I would appreciate your explaining to me why this is not a provision which should be eliminated. On its face, it appears so shocking. I am desirous of doing everything that is reasonable and responsible in supporting legislation that is needed to protect this country, but I do not want to support that which goes too far in curtailing the rights of citizens. I would appreciate your telling me if this provision is defensible or goes too far."

Rudy Giuliani responded on October 8, 2004, stating in part:

"The best way to resolve this is to provide as part of the reauthorization of the Patriot Act express provisions allowing for consultation with counsel and a provision making it clear that a motion to quash could be made to challenge an NSL. These provisions would hopefully resolve this debate and not put in jeopardy other critical provisions of the USA Patriot Act so vital to continuing an effective and balanced effort against terrorism."

In sum, Congress should re-enact the Patriot Act, but only after amending it. Recently, Tony Blair, prime minister of Great Britain, submitted legislation to the House of Commons giving the government broader powers to deal with terrorism. Commons passed it and then the House of Lords vetoed it, with the House of Commons overriding the House of Lords' veto.

I wrote Michael Chertoff, the new secretary of Homeland Security, asking for a comparison between the Patriot Act and the recently enacted British anti-terrorism legislation. I received a response from his general counsel, Joe Whitley, stating, "we reached out to a number of colleagues within the Department and the Department of Justice, but were unsuccessful in identifying any available literature that compares the USA Patriot Act and the British Prevention of Terrorism Act nor have we found any effort underway to amend the USA Patriot Act to incorporate parts of the British legislation."

Shouldn't we compare the two laws? Maybe we can learn something from the British, or they from us.

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The provision authorizing different government agencies to share information about individuals who are not necessarily suspected of terrorism has also come under attack on civil rights grounds. The vast majority of Americans understand that an appropriate balance must...
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