Amid much fanfare, President Bush signed into law Friday a package of anti-terrorism legislation that gives law enforcement agencies broadly expanded powers to investigate and detain suspected terrorists.
Signing the PATRIOT Act, the president acknowledged that the controversy surrounding the law—that it trespasses on Americans’ constitutionally protected civil rights—was still a fear and concern for many. But despite the president’s promise that our liberties are safe, American citizens, businesses, universities and even charities should be concerned that the new anti-terrorism law contains provisions that extend far beyond protecting them from terrorism.
The new law does have some good provisions that strengthen America’s borders and require the tracking of aliens in the United States on visas. Had such measures been in place before Sept. 11, they may have reduced the chances of the terrorist attacks succeeding. But many provisions of the new law apply more to mainstream activities than terrorism, and there are no guarantees that the law will be used solely against suspected terrorist activities.
For example, the new anti-terrorism law allows law enforcement authorities greater access to personal, business and educational institution records, expands the scope of subpoenas, and delays notice of search warrants for any criminal investigations—not just those cases pertaining to terrorism.
History has shown us that type of laws are vulnerable to abuse—and the concern now is the inevitability that these new laws will be used out of proper context by administrative agencies against unpopular businesses, outspoken critics of the government, and just plain unlucky citizens. James Madison recognized this problem long ago when he said that government is power, and power will be abused by humans because that is our nature.
The new law allows authorities easier access to records of whom individuals or businesses call or communicate with over the Internet. Business records may be obtained more easily under ex parte (without presence of the party) hearings unless they relate "solely" to First Amendment activity. Authorities seeking warrants can overcome this First Amendment standard easily—even for warrants directed at the press—by targeting the commercial aspects of a business.
The law allows expanded use of administrative subpoenas. These subpoenas are troublesome because they do not require prior approval of a judge and have dubious due process foundations. Administrative agencies have notoriously abused these subpoenas by using them as weapons of intimidation, targeting outspoken or unpopular groups and businesses—often at the demand of politicians angry with their critics.
For example, in the 1950’s, the targets were civil rights organizations. In 1958, the NAACP’s refusal to provide it’s membership lists to the state of Alabama led to the major Supreme Court decision NAACP v. Alabama, which protects the freedom of association. More recently, conservative critics of the Clinton administration were the targets of IRS audits.
These days, abusive administrative subpoenas issued by federal agencies have become virtually impossible to overturn in court, because judges now are more inclined to pass the buck to the politicians and say that it is Congress’ responsibility—not the courts—to restrict federal agencies.
To stop an administrative subpoena, subpoenaed parties must prove up front that it was issued for unlawful purposes. However, the courts do not allow subpoenaed parties to review agency documents that might prove abuse. Government officials who have abused the process are not likely to leave incriminating memos in their files or to produce such evidence in the first place.
Congress thinks we’ll all sleep better because the law even targets that most dangerous threat to our national security: telemarketers soliciting donations to charities. This provision was included to control the diversion of funds from certain charities to terrorist groups and prevent terrorist organizations from fronting as charities. The law criminalizes petty or even unintentional failure to disclose certain facts such as the sponsoring organization and comes with clear First Amendment problems. The law gives the Federal Trade Commission, an agency with no expertise in fundraising or charities, discretion to impose more conditions. The law does not apply to fundraising for—you guessed it—politicians.
Supporters of the law hail the four-year sunset provision—a clause under which the legislation expires in 2005—as a guarantee of protection of civil liberties. But the sunset clause only applies to certain portions of the law and merely forces Congress to review the law to determine what works and what abuses occurred. The sunset clause can’t prevent unintended or unapparent abuses of the law during the next four years.
The net we are casting to catch terrorists will likely ensnare innocent Americans, and we have every reason to believe that some investigative bodies will undoubtedly be pleased that these expanded powers extend to the investigation of Americans as well as terrorists.
Mark Fitzgibbons is an attorney who writes about constitutional issues.
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