How "Patriot Act 2" Would Further Erode the Basic Checks on Government
"Patriot Act 2," would grant sweeping powers to the government,
eliminating or weakening many of the checks and balances that remained
on government surveillance, wiretapping, detention and criminal
prosecution even after passage of the USA PATRIOT Act.
The Domestic Security Enhancement Act (also called "Patriot Act 2"):
Further dismantles court review of surveillance, such as by
terminating court-approved limits on police spying on religious and
political activity (sec. 312), allowing the government to obtain
credit records and library records secretly and without judicial
oversight (secs. 126, 128, 129), and by allowing wiretaps without a
court order for up to 15 days following a terrorist attack (sec. 103);
Allows government to operate in secret by authorizing secret arrests
(sec. 201), and imposing severe restrictions on the release of
information about the hazards to the community posed by chemical and
other plants (sec. 202);
Further expands the reach of an already overbroad definition of
terrorism so that organizations engaged in civil disobedience are at
risk of government wiretapping (secs. 120, 121) asset seizure (secs.
428, 428), and their supporters could even risk losing their
citizenship (sec. 501);
Gives foreign dictatorships the power to seek searches and seizures in
the United States (sec. 321), and to extradite American citizens to
face trial in foreign courts (sec. 322), even if the United States
Senate has not approved a treaty with that government; and
Unfairly targets immigrants under the pretext of fighting terrorism by
stripping even lawful immigrants of the right to a fair deportation
hearing and stripping the federal courts of their power to correct
unlawful actions by the immigration authorities (secs. 503, 504).
These are only examples of the unfettered powers that the new bill
would grant to the government; for a complete analysis, please see
ACLU's detailed section-by-section summary, available on our
2. Undermining Checks and Balances
Under our Constitution, government powers are subject to control by
the courts, the Congress, and ultimately by the American people,
informed by a free press. Checks and balances help ensure both safety
and freedom. They ensure that government actions taken for very
important purposes, such as to prevent terrorism or other crime, do
not violate the rights of ordinary citizens, and that government is
held accountable when they do. They also help the government,
ensuring that its resources are concentrated on arrests of real
criminals - not on ineffective, feel-good solutions advanced by
political leaders anxious to reassure a frightened public.
This section explains why eroding checks and balances is a false
solution to the real problem of terrorism, and then explains just how
Patriot Act 2 would further erode three key checks and balances - the
courts, Congress, and the free press.
Eroding Checks and Balances Is a False Solution
Anti-terrorism policies that infringe on basic rights - such as
ethnically-based roundups of innocent persons, or intrusive
surveillance of peaceful political activists - not only make America
less free, they make our nation more vulnerable to terrorism. Such
policies waste scarce government resources that should be used to
track down real criminals, and help sew the seeds of mistrust among
communities that might otherwise be willing to assist the government
in arresting terrorists.
As FBI special agent Coleen Rowley observed in a recent letter to
Director Robert Mueller, questioning the FBI's priorities in
investigating and fighting terrorism:
The vast majority of the one thousand plus persons "detained" in the
wake of 9-11 did not turn out to be terrorists. . . . [A]fter 9-11,
Headquarters encouraged more and more detentions for what seem to be
essentially PR purposes. Field offices were required to report daily
the number of detentions in order to supply grist for statements on
our progress in fighting terrorism. The balance between individuals'
civil liberties and the need for effective investigation is hard to
maintain even during so-called normal times, let alone times of
increased terrorist threat or war. It is, admittedly, a difficult
balancing act. But from what I have observed, particular vigilance may
be required to head off undue pressure (including subtle
encouragement) to detain or "round up" suspects, particularly those of
In the same vein, in late 2001, a memorandum was circulated by senior
intelligence specialists expressing serious concerns that a focus on
racial profiling or other investigative techniques that intrude on
civil liberties could undermine security by distracting security
officials from less clumsy and more reliable individual suspicion.
At the same time, no fewer than eight high ranking former FBI
officials, many from the Reagan and Bush administrations, strongly
criticized anti-terrorism proposals that violate civil liberties,
saying such tactics were likely to be ineffective and to distract from
proven investigative techniques.
While granting new powers to federal agents, the draft bill
systematically attacks precisely these basic checks and balances on
government power, thus making it harder for professional law
enforcement agents to resist pressure by political leaders to
implement highly visible policies that violate civil liberties, rather
than rely on proven techniques that are effective.
How Patriot Act 2 Weakens Checks and Balances Provided by the Courts,
Congress and the Press
The Federal Courts. Under the Constitution, government searches and
wiretaps, orders for confidential records, and spying on religious and
political activity are subject to important limits. In general,
searches and other surveillance are lawful only if the government
shows to a court that it has probable cause to believe evidence
relevant to a crime or intelligence related to a threat from a foreign
power may be found. Government spying on political, religious or
other peaceful, expressive activity may not contravene the First
Amendment, so federal courts are empowered to limit police spying to
prevent these abuses. Obtaining sensitive records, such as credit
records and library records, are also subject to Fourth Amendment
standards and courts - not the Executive Branch acting alone - decide
when those standards have been met. Finally, under the Constitution,
the government may only detain persons under the supervision of a
Yet these basic rights, while embodied in the Constitution, do not
enforce themselves. Rather, they are made meaningful only by the
standards and procedures Congress has laid out for the federal courts
to use in measuring the limits government authority. One such law,
the Foreign Intelligence Surveillance Act of 1978, is designed to
ensure that wiretaps for national security purposes will never again
be subject to the discretion only of the Executive Branch. Unilateral
executive power had resulted in an abuse of power -- in the
wiretapping of civil rights leaders, including Martin Luther King, Jr.
and in the secret political surveillance under Nixon that culminated
in the crimes of Watergate.
Under the amendments to surveillance statutes the bill authorizes, the
standards under which a court must approve searches and surveillance
is lowered - in many cases, making such review no longer meaningful.
The bill creates a new defense that could shield the future Nixon-era
wiretappers from prosecution even if they act without a court order,
so long as their activities were authorized by high government
officials, as they were in Nixon's day (sec. 106). Likewise, limits on
police spying approved by federal courts will be swept aside, freeing
state and local police to spy on political and religious activity,
thus violating citizens' First Amendment rights (sec. 312).
The draft bill also rescinds authority for immigrants to challenge the
lawfulness of government action by habeas corpus (sec. 504). This
section attempts to effectively reverse a Supreme Court decision
holding that earlier restrictions on review of immigration decisions
had left intact review under the Habeas Corpus Act, enacted in 1789 by
the same Congress that ratified the Bill of Rights. As a result,
immigrants, including lawful permanent residents, will be subject to
arbitrary deportations at the whim of the government.
The United States Congress. The Constitution lays out a separation of
powers that puts Congress in charge of making the laws, approving
treaties, and declaring war. By splitting power in this way, the
Framers ensured that even a popular President could not change the
law, declare war, or commit the country to binding international
commitments without obtaining the consent of Congress.
Under current law, the Executive Branch may only extradite Americans
or others to face trial in foreign courts if an extradition treaty,
ratified by the United States Senate, specifies that the crime is one
for which extradition is allowed. Likewise, the Executive Branch may
not conduct searches and wiretaps on behalf of a foreign government
which is investigating a foreign crime unless the Senate has approved
a "Mutual Legal Assistance Treaty." Under the draft bill, however,
extradition is allowed without a treaty or in excess of limits imposed
by existing treaties, and so are foreign-directed searches and
wiretaps (secs. 321, 322).
By writing the Senate out of the process of defining the limits of our
legal relationships with other governments, the bill jettisons an
important bulwark against subjecting American citizens to the control
of possibly dictatorial governments. At the same time, the bill
further strips away judicial power by preventing the courts from
questioning an extradition request, even for an American citizen, even
if the court were to find that the requesting country's legal system
fails to respect fundamental civil and human rights (sec. 322).
The Free Press. The public is the ultimate source of power under our
democratic system of government. For its decisions to be informed,
the press must be unfettered and must have access to the workings of
government through the Freedom of Information Act and other open
Under the draft bill, however, basic operations of government, such as
the arrests of terrorism suspects who have not been criminally
charged, can be kept secret (sec. 201). These might include material
witness detainees, immigration detainees, or American citizens or
others labeled "enemy combatants" by the President and incarcerated by
the military. Grand jury witnesses can also be gagged at the
government's request (sec. 206).
By casting a veil of secrecy over the basic workings of the judicial
branch of our government, Patriot Act 2 violates an essential
principle of American democracy and undermines public confidence in
the fairness of the criminal justice system. As Alexander Hamilton
made clear more than two centuries ago, a policy that allows
"confinement of the person, by secretly hurrying him to jail, where
his sufferings are unknown or forgotten" is a "dangerous engine of
Likewise, information required by law to be reported by chemical
companies and others whose activities pose a hazard, while
theoretically public, will be subject to severe restrictions on
access(sec. 202). This information will become virtually inaccessible
to the press, the public and environmental organizations, undermining
their ability to hold government and industry accountable for public
By undermining these key institutions of our government - the courts,
the Congress and the press - Patriot Act 2 takes the position that
checks and balances must be jettisoned in the interests of national
security. Whenever America has succumbed to this temptation in the
past - by interning Japanese Americans without trial during World War
II, or by denying basic due process to suspected Communists during the
red scares of the 1920s and 1950s - our nation has come to regret it.
There is a better way. Our nation should embraces its system of
checks and balances and look on judges, Congress and the American
people as partners in the fight against terrorism, rather than
inconvenient obstacles to the Executive Branch.
3. Targeting Ordinary People, Not Terrorists
Patriot Act 2's laundry list of new powers will not only erode certain
fundamental rights of terrorism suspects or other criminal defendants,
but also contains powers which could be directed at ordinary people,
such as protestors with diverse political viewpoints, members of
community, environmental and religious organizations, library users
and ordinary immigrants, including legal permanent residents.
When Congress enacted the Racketeer Influenced and Corrupt
Organizations Act (RICO), it intended those extraordinary powers to be
used against the Mafia and organized crime. Over the years, however,
RICO was used far more broadly, even against anti-abortion protesters
and other dissidents. The ACLU is deeply concerned that some of
the powers the government may be seeking in Patriot Act 2, while
ostensibly directed at terrorists, could likewise be used in
Protestors - Right and Left. Under an existing, overbroad definition
of international and domestic "terrorism," any individual or group
that breaks the law with the intent of influencing the government can
be labeled a terrorist if their activities are "dangerous to human
life." Under that definition, diverse "direct-action"
organizations, including Operation Rescue, the World Trade
Organization protestors, and others could conceivably be labeled
Patriot Act 2 not only fails to fix this definition, it exacerbates
these problems by hinging even more anti-terrorism powers to this
definition. These include new wiretapping authority (secs. 120, 121),
civil asset forfeiture powers (sec. 427, 428), new death penalties
(sec. 411), and a frightening and unprecedented power for the
government to revoke American citizenship even of native-born
Americans (sec. 501).
Under these new powers, an overzealous Attorney General in an
Administration that favored abortion rights could label a pro-life
organization that engaged in "direct action" as a domestic terrorist
group. As a consequence, the government could wiretap their meetings,
seize their property, and strip their supporters of United States
citizenship, rendering them in the same position as stateless
undocumented immigrants who face potentially indefinite detention.
Community and Environmental Organizations. Community and
environmental organizations rely on open records laws to ensure that
the risks to health and safety from power plants, chemical plants and
other hazardous facilities are understood and that proper safety
precautions are maintained. This public pressure is often more
effective than government regulation.
One such record-keeping requirement is the responsibility to complete
a "worst case scenario" under the Clean Air Act. Patriot Act 2
would impose extraordinary restrictions on access to these scenarios,
effectively rendering them unavailable to the public in any useable
form (sec. 202). As a result, companies whose activities pose a
hazard to the community could keep those hazards secret.
Churches, Synagogues, Mosques and Other Religious and Community
Groups. Religious and secular organizations that take controversial
positions on issues like war and peace, abortion, or casino gambling
could face infiltration and monitoring by local and state police
departments acting in concert with unsympathetic government officials.
Patriot Act 2 would immediately terminate court-ordered limits on
political spying by local and state police, freeing them to
re-activate intelligence gathering squads that can investigate
organizations without any evidence of a connection to terrorism or
other criminal activity (sec. 312).
Library Users. Since September 11, American libraries, bookstores and
Internet Service Providers (ISPs) have been faced with ever-increasing
demands from federal and state law enforcement agencies for records,
e-mail, and other information for "dragnet-style" fishing
Under current law, the government is required under some circumstances
to back up its demands with a court order. While the standard for
issuing such orders has been lowered by the USA PATRIOT Act, some
judicial intervention is still required. Under Patriot Act 2, these
demands are likely to escalate even further, as the government gains
new powers to issue "administrative subpoenas" and what it calls
"national security letters" that will enable it to force compliance
without going to court at all (secs. 128, 129).
Ordinary Immigrants. The Constitution and laws protect the rights of
immigrants to due process of law, requiring the government to provide
a fair hearing to anyone the government wants to deport, and
subjecting the immigration authorities to the rule of law by giving
the federal courts power to correct unlawful actions by the
government. The Supreme Court reaffirmed these basic principles only
two years ago when it ruled against the government in INS v. St. Cyr,
533 U.S. 289 (2001), saying "Judicial intervention in deportation
cases is unquestionably required by the Constitution."
Patriot Act 2 seriously erodes the rights of immigrants - including
lawful permanent residents - by providing for summary deportations
without charges or evidence if the Attorney General merely suspects an
immigrant may be a risk to national security (sec. 503). This
proposal flies in the face of a consensus - supported by President
Bush in the 2000 election campaign - that jailing immigrants on secret
evidence is unreliable and un-American.
Finally, lawful permanent residents who are not suspected of posing
any risk to national security - but have committed some minor criminal
offense even in the distant past - will be stripped of their right to
an immigration hearing and will be barred from petitioning a federal
court to correct any unlawful actions by the government (sec. 504).
Patriot Act 2 does this by rescinding the authority that the Supreme
Court relied on to review the government's actions - the Habeas Corpus
Patriot Act 2 is fundamentally flawed because it relies on a false
premise - that America can be safer if we do away with basic checks
and balances. By undermining the role of the courts, Congress and the
press in providing a real check on Executive power, Patriot Act 2
directs its ire at the institutions of American democracy instead of
at the terrorists that threaten it. In so doing, it threatens to
undermine the rights of ordinary people, not terrorists.
 Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of
2001, Pub. L. No. 107-56, 115 Stat. 272.
 Copies of the draft bill can be obtained at
 Full Text of FBI Agent's Letter to Director Mueller, N.Y. Times,
March 5, 2003 (letter dated Feb. 26, 2003).
 Bill Dedman, Memo Warns Against Use of Profiling As Defense,
Boston Globe, Oct. 12, 2001.
 Jim McGee, Ex-FBI Officials Criticize Tactics on Terrorism;
Detention of Suspects Not Effective, They Say, Washington Post, Nov.
28, 2001, at A1
 See Katz v. United States, 389 U.S. 347 (1967) (criminal
surveillance); United States v. United States District Court
("Keith"), 407 U.S. 297 (1972) (intelligence surveillance).
 50 U.S.C. §§ 1801-63
See INS v. St. Cyr, 533 U.S. 289 (2001); 28 U.S.C. § 2241.
 THE FEDERALIST No. 84 (Hamilton) (emphasis in original) (quoting
1 Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 335).
 Scheidler v. National Organization for Women, Inc., __ U.S. __,
2003 WL 467549, (Feb. 26, 2003).
 18 U.S.C. § 2331.
 See, e.g., Zadvydas v. Davis 533 U.S. 678 (2001).
 47 U.S.C. § 7212(r).
 Michael S. Gerber, Anti-Terrorism Measures Create Privacy Dilemma
for Corporations, The Hill, March 12, 2003
Christopher A. Young
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