Conservative Backlash

Provisions of Patriot II Draft Worry Those on Right

March 12 The opposite ends of the political spectrum are coming together over the war on terror, but not in the way Attorney General John Ashcroft may have wanted.

Some conservative groups are finding common ground with organizations such as the American Civil Liberties Union and the Bill of Rights Defense Council, expressing concerns about the effect that the USA Patriot Act and a possible follow-up law, the Domestic Security Enhancement Act, could have on civil liberties.

Liberal critics have directed much of their worry at what they saw as an attack on immigrants' rights in the Patriot Act, the massive measure that was passed as the country was reeling from the Sept. 11, 2001, terror attacks.

More than 60 towns, cities and counties around the country have passed resolutions criticizing the act, some going so far as to instruct municipal employees including police not to assist federal agents in investigations that they believe violate the Constitution.

Now, right-leaning groups such as the American Conservative Union, the Eagle Forum and Gun Owners of America say they are concerned that American citizens could also be victimized by what they say are unconstitutional law enforcement powers allowed by the Patriot and the potential enhancement act.

The heart of the issue, according to conservatives, liberals and constitutional scholars, is the effect that USA Patriot has already had on issues of probable cause and due process, and that both of those concepts would be further eroded if the so-called Patriot II were adopted as it appears in the draft form.

Freedom to Operate

According to what is in the draft, if adopted it would allow the Justice Department to wiretap a person for 15 days without a warrant; federal agents could secretly arrest people and provide no information to their family, the media or their attorney until charges are brought, no matter how long that took; and it would allow the government to strip Americans of their citizenship for even unknowingly helping a group that is connected to an organization deemed to be terrrorist.

It would also make it a crime for people subpoenaed in connection with an investigation being carried out under the Patriot Act to alert Congress to any possible abuses committed by federal agents.

There is also no "sunset provision," which constitutional scholars say removes the element of congressional oversight and means lawmakers would have no way of compelling the Justice Department to prove that the powers provided in the act have not been abused.

"There's no question the government has to have the tools to protect us from terror attacks and to prosecute those who want to harm us," ACU Executive Director Stephen Thayer said.

"But having said that, the American Conservative Union wants to be sure that Congress takes into account the civil liberties of the citizens and through their deliberations reaches the proper balance between law enforcement and protecting citizens' rights," he added.

Christopher Pyle, a former U.S. Army intelligence officer who served on the Church Committee, a Senate select committee that studied government intelligence gathering, put it a bit more forcefully.

"I don't think the Fourth Amendment exists anymore," said Pyle, a professor of politics at Mount Holyoke College, referring to the amendment that prohibits unreasonable search and seizure and requires probable cause for a search or arrest. "I think it's been buried by the Patriot Act and some of the court rulings that have been handed down. We need a requiem mass for the Fourth Amendment, because it's gone."

Adverse Effect on Conservatives

Among the concerns Thayer said he has about the draft version of Patriot II are the broad expansion of surveillance and information-gathering powers, the granting of immunity to businesses and their personnel who provide information to anti-terrorism investigators even if the information is fraudulent, and the power to strip native-born Americans of their citizenship.

Michael Hammond, a consultant with Gun Owners of America, which has more than 200,000 members, echoed those concerns, and said that the vague definition given to the term "terrorist" is extremely troubling.

"We have some serious concerns and part of our concerns spring from the fact that some of our members are part of the so-called militia movement," Hammond said. "We're looking into whether some of these groups or even the NRA [National Rifle Association] could be designated terrorists by this or a future administration."

The group is consulting with other conservative organizations about USA Patriot and Patriot II, and meeting with conservative lawmakers to make sure they know how the groups feel about some of the provisions.

"We're going to make our case why basically suspending the Constitution could have an adverse effect on conservatives, either under this administration or under a future administration," he said.

Though the group was concerned about many of the provisions of USA Patriot, Hammond said they "didn't go ballistic" because they believed it was primarily focused on noncitizens.

"All of a sudden it became apparent that a lot of people could be made noncitizens," he said. "We're very concerned about that. The whole thing is Orwellian."

Denials of Enhancement

Pyle and other legal scholars, including a former Justice Department official, say the concerns are justified, especially if the Domestic Security Enhancement Act a 120-page document that was allegedly leaked to the Center for Public Integrity, which posted it on its Web site is a legitimate representation of the administration's aims.

The document surfaced after weeks of Justice Department denials that any follow-up to USA Patriot was in the works, and after it appeared the draft was downplayed as just that a draft that was far from its final form.

"Department staff have not presented any final proposals to either the attorney general or the White House," Barbara Comstock, a Justice Department spokeswoman, said in a statement released after the draft appeared. "It would be premature to speculate on any future decisions, particularly ideas or proposals that are still being discussed at staff levels."

Sens. Patrick Leahy, D-Vt., Russ Feingold, D-Wis., and other Democrats have been asking Justice Department officials to share their ideas on whether anti-terrorism statutes need to be expanded. Ashcroft was rebuked by Leahy and other senators during an appearance before the Senate Judiciary Committee last week for not being forthcoming.

"Somebody who reports directly to you lied and this is not a good thing," Leahy said. "I think it shows a secretive process in developing this."

Ashcroft denied there is any final proposal for expanding law enforcement's anti-terrorism capabilities.

"I'm keenly aware that the administration cannot pass legislation," Ashcroft said. "Only members of Congress can pass legislation. It would be height of absurdity for me to have a secret matter I hope to make a law without telling Congress."

Undercutting Ashcroft

When Feingold told Ashcroft that it was important to consult with Congress, the attorney general said: "I don't believe that I should start to consult and defend things which I believe are indefensible or are not part of something I would seek to propose. Until I have something I think is appropriate, I don't know that I should engage in some sort of discussion."

Michael Greenberger, a professor at the University of Maryland School of Law and an official in the Justice Department during the Clinton administration, said the draft "has all the appearance of a document that has been worked over and over."

"It seriously undercuts any claim that the department wasn't working on an enhancement act," said Greenberger, who was counselor to Attorney General Janet Reno before being named the Justice Department's principal deputy associate attorney general. He currently directs the University of Maryland's Center for Health and Homeland Security in addition to teaching at the school.

While the enhancement act does in many parts seem to be an effort by the Justice Department to retroactively get the authority to do things they were not allowed to do under USA Patriot, not everything in Patriot II is there to increase law enforcement powers, Greenberger said.

For example, according to the draft, defendants in the supersecret Foreign Intelligence Surveillance Act courts would be entitled to a court-appointed lawyer, which is a positive change, he said. The lawyer, however, would have to pass a security screening, a requirement that has been criticized by the ACLU.

Supreme Court Challenge Still Far Off

Some of the aspects of USA Patriot could eventually be examined by the Supreme Court, particularly regarding the arrests of six people in Portland, Ore., who are accused of trying to aid al Qaeda, but that challenge is likely a long way off.

A U.S. District Court judge recently denied a defense motion to see the government's justification for phone taps and electronic surveillance on the six: Jeffrey Battle, October Lewis, Patrice Ford, Ahmed Bilal, Muhammad Bilal and Habis al Saoub. All but al Saoub are American citizens who were born in the United States.

The surveillance methods were approved by a secret court that was set up under FISA, which was passed in 1978 but had its powers greatly expanded under USA Patriot.

"These people being prosecuted are claiming that information against them was illegally obtained because their Fourth Amendment rights were violated," Greenberger said. "Those issues will eventually make their way to the Supreme Court."

Douglas Kmiec, the dean of Catholic University Law School and the Justice Department's head of the office of legal counsel from 1985 to 1989, said the concerns are largely unfounded, though he said there are legitimate questions about some of the language, such as the definition of terrorism.

"My feeling in general is that the Patriot Act as enacted was a well-tempered approach to the problems that we face," he said, noting that built into the act are oversight by Congress and so-called sunset clauses, which require that provisions of the act be reviewed after five years.

"That will force the Justice Department to prove that the powers have been used properly," Kmiec said.

Other scholars, though, say that as the senators complained last week, the Justice Department is already resisting providing Congress with the information that USA Patriot says it must give the lawmakers, and some say the indication from the draft of Patriot II is that the department wants to remove the requirement altogether.

A Fundamental Change?

The powers that would be granted under Patriot II as written in the draft would fundamentally change American society, say scholars and conservative critics of the measure, because the government would be allowed to carry out electronic searches of virtually all information available about an individual without having to show probable cause and without informing the individual that the investigation was being carried out.

"Should the government be allowed to use complex software to find patterns of spending or patterns of activities to find out if someone has been committing illegal acts if there is no probable cause in the first place?" asked Ronald Kahn, a professor of politics and law at Oberlin College. "Patriot I and Patriot II open the door to that, and that means that everybody in the country is under suspicion.

"When you take away the notion of probable cause, everyone is under suspicion," he said.

The only positive thing that many of the measures' opponents see is the breadth of the opposition itself, which they hope will make legislators realize that civil liberties must be protected.

Thayer said he believes that any changes to USA Patriot that are eventually enacted will likely be to bring it more in line with the Constitution, rather than to further expand law enforcement powers, because of the attention that the Domestic Security Enhancement Act has received from both the left and the right.

"The fact that there are so many diverse organizations raising the issue of individual liberty will have an effect on Congress," he said. "The product they agree on will be better for it."