Canton Repository

September 11, 2006

Disagreements over Patriot Act are broad

By Paul M. Krawzak
Copley News Service

WASHINGTON - Almost five years after its passage, the controversial Patriot Act continues to elicit debate over whether it was necessary in the first place and is good for America today.

Congress approved the landmark anti-terrorist legislation weeks after the Sept. 11, 2001, attacks on the World Trade Center and Pentagon. Its goal was to provide more tools to investigators to thwart terrorist activity.

President Bush, a champion of the law, claims it has helped authorities foil terrorist plots. Opponents contend it violates or threatens Americans’ constitutional rights.

The House and Senate reauthorized the legislation, which also allows for secret searches, with several modifications earlier this year.

CONS

Two authorities on the act, Lisa Graves, a senior counsel at the American Civil Liberties Union, and Brian W. Walsh, a senior fellow at the Heritage Foundation, weighed in on the pros and cons of the law.

Graves said the legislation’s worst offense was to weaken safeguards protecting Americans’ financial records and other personal data from government searches.

“It changed the rules,” said Graves, a deputy assistant attorney general in the Clinton Administration.

In the past, she said, investigators could gain access to financial records, for example, if they obtained an order from a secret court created by the 1978 Foreign Intelligence Surveillance Act, or FISA.

Investigators also had to show there were “specific and articulable” facts linking the records sought to a specific terrorist suspect.

The Patriot Act, however, allows the FBI to obtain such records without a court order, and without linking the request to a suspected terrorist, she said. Under the act, investigators must make a more general argument that the records are needed for an intelligence investigation.

Graves contends that is insufficient protection against “fishing expeditions.” She said the new rules allow investigators “to stray from the target.”

“It basically makes Americans vulnerable to acquisition and retention (of records) by the government even if they’ve done nothing wrong,” she said.

PROS

Walsh argues the Patriot Act is necessary because earlier laws do not provide the tools needed to fight terrorism at a time of rapid advances in communications and information technology.

FISA, the law created to fight espionage and international terrorism, “was drafted for a much different environment,” he said. “It did not contemplate the types of electronic records that are available today and the ease with which they can be moved from one place to another.”

Walsh, previously an attorney at the Kirkland & Ellis law firm in Washington, said expanded access to records is needed to fight a more sophisticated terrorist.

The Patriot Act “brought us out of the dark ages in the pre-information age in terms of our intelligence-gathering abilities and brought us into the information age,” he said.

Terrorists “are not just in caves in Bora Bora planning their attacks. They’re also in apartments in Manhattan and Miami planning how to kill people, and they’re using cell phones, they’re using chat rooms, and they’re using e-mail in order to do it,” he said.

The roving wiretap provision in the act is an example of how the law has been brought up to date, he said.

In the past, investigators had to seek wiretap authority for each phone line “because that’s the way the phone system worked, (but) it doesn’t work that way any longer,” he said.

The Patriot Act allows investigators to listen in on a suspected terrorist’s conversations even if the suspect uses a different phone, laptop computer or other method of communication, as is common today.

While defenders of the law credit it for making the United States more secure, critics say it threatens hard-earned freedoms.

“Unless Congress stands up (against the Patriot Act), we have an erosion not just of congressional power and judicial power and checks on the president, but we have a real assault on the fundamental liberties of Americans,” Graves said.

Walsh calls the Patriot Act a balanced law that has helped prevent another terrorist attack while generating few complaints of abuses.