Joe Baker: Congress to review Patriot Act

Congress recently began a series of hearings intended to revise controversial sections of the USA Patriot Act. Many of these provisions will expire at the end of this year, unless Congress can be persuaded to extend them.

The lawmakers have an unusual opportunity to list abuses of this law and to re-evaluate the administration’s approach to security. The lack of transparency of the Bush cadre makes a comprehensive evaluation difficult. According to The Nation magazine, the Justice Department, through January 2005, had served at least 155 “sneak and peek” warrants, utilizing a provision of the Patriot Act that appears to violate the prohibition against unreasonable searches and seizures (

Many of those warrants had nothing to do with terrorism but involved cases of violent crime or narcotics, thus expanding conventional police powers without any national security basis.

Personal records have been seized on 55 occasions. Then there is the matter of secret courts, hearing secret evidence, especially against foreign nationals but also against American citizens. U.S. Sen. Patrick Leahy rapped the administration for “destruction of legitimate oversight,” and U.S. Rep. Bob Barr charged national security “has taken precedence” over protection of civil liberties.

On that issue, Attorney General Alberto Gonzales, in his recent appearance before Congress, was more than a little evasive. When pressed on the matter of civil liberties protection, the normally precise Gonzales replied: “Let me, kind of, reassure the committee and the American people” about snooping in your library and medical records. “That’s a difficult question that requires, sort of, a case-by-case analysis,” Gonzales said in response to a question about sending prisoners to countries with a record of practicing torture.

This administration attitude is prompting a full-scale revolt by the federal courts against some of these extra-judicial provisions. It is ironic that the very week House majority whip Tom DeLay launched an all out assault on the judiciary, Sen. U.S. Richard Durbin, (D-Ill.) and Sen. Larry Craig, (R-Idaho) introduced a bill designed to halt the worst of Patriot Act’s excesses. It is called the Security and Freedom Enhancement Act (SAFE) of 2005 (

SAFE aims at the section of the Patriot Act that grants law enforcement the power to seize library and other records without notice to the subject of the records, and bars the holder of this information from ever disclosing this seizure took place. Federal courts have ruled this provision unconstitutional.

The so-called Patriot Act was introduced in the U.S. House Oct. 23, 2001, under the sponsorship of U.S. Rep. James Sensenbrenner (R-Wis.) and co-sponsorship of Rep. Michael Oxley, (R-Ohio). It was passed by the House Oct. 24, 2001, by a vote of 357-66. At that time, the bill had not yet been printed and congressmen had not read it. They voted blindly.

The bill was passed by the Senate the next day by a vote of 98-1. The only negative vote was cast by US. Sen. Russ Feingold, (D-Wis.). President George W. Bush signed it into law Oct. 26, 2001 (

Most of this legislation was written by Assistant Attorney General Viet Dinh, a Vietnamese born in Saigon, who came to this country as a refugee in 1978. He was appointed to the Office of Legal Policy within the Justice Department May 31, 2001.

Before entering government, Dinh was professor of law and deputy director of Asian law and policy studies at the Georgetown University Law Center (

In 2003, word leaked that then-Attorney General John Ashcroft’s Justice Department was readying a draft of a sequel to the Patriot Act, commonly known as Patriot Act II. This would expand much further the surveillance, intelligence-gathering and law enforcement prerogatives of the department while largely eliminating the Bill of Rights and several amendments to the Constitution.

Back then, officials of the Justice Department pleaded ignorance of any such bill, but journalist Bill Moyers obtained a draft copy of the legislation with notations that it had been sent to Vice President Richard Cheney and House Speaker Dennis Hastert on Jan. 10, 2003 (

Since then, little has been said about this measure, but attempts have been made to slip through individual parts of it attached to other legislation. Dr. David Cole, law professor at Georgetown University, said the legislation “raises a lot of serious concerns. It’s troubling that they have gotten this far along and they’ve been telling people there is nothing in the works.”

Chuck Lewis, executive director of the Center for Public Integrity, told Bill Moyers that Patriot II is “five or 10 times worse” than the original Patriot Act.

After reviewing that act, U.S. Rep. Ron Paul of Texas said: “Our forefathers would think it’s time for a revolution. This is why they revolted in the first place…They revolted against much more mild oppression” (

Three states and more than 20 cities already are on record in opposition to the Patriot Act. More may follow.

As The Nation observed: “It is precisely because the Patriot Act is so deeply implicated in wider human rights abuses that mere technical fixes are not enough. Instead, at a minimum, Congress should pass the Security and Freedom Enhancement Act, a bipartisan bill that would restore key checks and balances and constitutional provisions.

“With its broad liberal/conservative base and grassroots support—recently the House of Delegates in Montana, a strong Bush state, urged Congressional passage—SAFE makes political sense. The point is to raise the floor on civil liberties: Not kind of, not sort of, but definitively restore the Bill of Rights and the rule of law.”

From the April 20-26, 2005, issue

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