Certain unalienable rights

Three years after Congress passed the USA Patriot Act in thewake of the Sept. 11, 2001 attacks, controversy continues aboutportions of that law and other government policies intended tofight terrorism.

Civil liberties have become an issue in national, state and evenlocal politics, with much of the debate centered on thehighly-publicized Patriot Act. The law expanded federal policepowers and stiffened penalties for terrorism-related offenses.

Concerns raised by some Evanston activist groups prompted theEvanston City Council to pass a resolution opposing the Patriot Actin May 2003. The resolution urges Congress to repeal the law andrefrain from passing any further laws that unnecessarily limitcivil liberties.

Evanston was the first city in Illinois to pass such aresolution.

Democratic presidential nominee Sen. John Kerry voted for thelaw, but has said he supports revising it to address ways it hasbeen applied “inappropriately.” President Bush has praised the lawas a crucial weapon in the fight against terrorism and has calledon Congress to reauthorize portions of the law scheduled to expirein 2005.

Sharing intelligence�

“The Patriot Act has been the single most important tool thatCongress gave us to fight terrorism after Sept. 11,” said U.S.Justice Department spokesman Mark Corallo.

He pointed to one of the biggest changes in the law, the removalof the “wall” between intelligence and law enforcement agenciesthat previously prevented the use of intelligence data in domesticcriminal investigations. Those restrictions were put in place inthe late 1970s, after high-profile scandals and investigationsrevealed that the FBI and CIA, among other agencies, conductingsurveillance and investigations on nonviolent protesters and civilrights leaders.

After the Sept. 11 attacks, the restrictions onintelligence-sharing were criticized for making it more difficultfor authorities to detect and combat terrorism, and the Patriot Actallows freer information-sharing between agencies.

One case in which this kind of coordination made a differencewas in a smuggling investigation the FBI conducted two years ago,Corallo said. When criminal investigation and counterterrorismpersonnel were allowed to share data, they discovered that thesmuggling ring, which purchased cigarettes in North Carolina andsold them in Detroit, avoiding Michigan’s higher cigarette taxes,was being run by suspected operatives for Hezbollah, a LebaneseShiite militant group.

“We could move quickly to arrest these guys and charge them notjust with cigarette smuggling but with material support toterrorism,” Corallo said.

The Patriot Act also stiffened penalties for terrorism-relatedoffenses, with many offenses now carrying sentences of 20 or moreyears in prison. In turn, the threat of these sentences convincessome terrorist operatives to cooperate with the government as partof a plea bargain.

“We get a lot of intelligence through the crucible ofprosecution,” Corallo said.

Controversial powers

The intelligence-sharing provisions have attracted littleopposition, but other parts of the law have sparked heatedcriticism. Two of the most high-profile sections allow the FBI toconduct delayed-notification searches and to obtain court ordersrequiring businesses, libraries and other organizations to turnover customer records.

Delayed-notification searches have long been allowed by federalcourts under certain circumstances, but the Patriot Act marks thefirst time procedures for these searches have been codified. Thelaw allows investigators to delay notification when immediatenotification would have an “adverse result” on the investigationand notice must be given within a “reasonable period.”

Another provision of the law allows the FBI to obtain a courtorder for the production of “any tangible things,” such as books orrecords, by certifying to a judge that the materials are needed foran investigation into terrorism. Anyone who receives an order isprohibited from disclosing it.

The most publicized application of this provision would allowthe FBI to obtain library records showing what materials peoplehave checked out. Librarians and privacy advocates have criticizedthis, arguing the law is unnecessarily intrusive.

Neal Ney, library director for the City of Evanston, said thelibrary has not yet received any government information ordersunder the Patriot Act. But the library has taken several steps toprepare for possible requests.

Before the Patriot Act was passed, library circulation recordscould be requested through a court order, Ney said. But he saidthis was a much more stringent requirement.

“Requiring a court order means the bar is set fairly high,” Neysaid. “You can’t just go fishing to see who is reading the’Communist Manifesto’ or who is reading the Quran. And what thePatriot Act does is lower that bar … significantly.”

Ney said he also has problems with the gag order provision inthe law, which prevents staff members who have received aninformation request from being able to talk about it. He said thiscould be a serious problem if the library were to receive aninformation order on the weekend when regular staff members aren’tavailable.

local concerns

Ald. Lionel Jean-Baptiste (2nd), who voted for Evanston’sresolution, said he thought the Patriot Act was shoved throughCongress and gives the government permission to intrude incitizens’ lives in ways that do not increase security, but whichcreate an atmosphere of fear and distrust.

Evanston activist groups were the main proponents of the billand played a significant role in its passage, Jean-Baptiste said.Evanston passed the resolution 6-0, with Ald. Edmund Moran (6th)abstaining at the May 19, 2003 meeting.

“This is a headstrong community that has a history of dissentingagainst the status quo,” Jean-Baptiste said. “This was one of thefirst communities to desegregate schools. This was one of the firstcities to declare itself a nuclear-free zone.”

Although Evanston’s resolution can’t force a change at thefederal level, Ney said resolutions such as Evanston’s have playeda role in creating a nationwide belief that the Patriot Actoverreaches its authority. Ney said he does not think a law likethe Patriot Act could be passed today.

“I really believe there is a national opposition to theprovisions in the Patriot Act,” Ney said. “If people had just satback and said ‘it’s a bad law but there’s nothing we can do aboutit,’ I don’t think we would have had that kind of consensus.”

The law allows federal officials to access “the most intimate,personal information about all of us,” said Ed Yohnka, spokesmanfor the American Civil Liberties Union of Illinois.

He noted that under the law, federal agents could gain access toan individual’s business, medical or mental health records withoutany suspicion that the person in question had committed or wasplanning a terrorist act.

Nationally the ACLU has been one of the law’s loudest critics,and has underwritten lawsuits challenging some of its provisions.Locally, the ACLU of Illinois and the Evanston activist groupNeighbors for Peace celebrated the resolution.

“We’ve seen the beginnings and inklings of some real cases ofabuse,” Yohnka said, predicting that as more information becomespublic, “we will see clear signs that people were investigatedwithout any real reason for those investigations” but on the basisof their political beliefs.

But Corallo rejected the charge that the government isinfringing on civil liberties, saying that such vast abuses wouldrequire a “conspiracy” between FBI agents, Justice Departmentlawyers, federal judges and Congress, among others.

“That’s what it would take for abuses to go unchecked,” Corallosaid. “These are people who care deeply about the Constitution andwould not tolerate abuses.”

national opposition

The law continues to be challenged by community activists,federal courts and even some of the legislators who initially votedfor it.

As of Oct. 11, 358 communities in 43 states had passedresolutions opposing or expressing concern about portions of thePatriot Act, according to the ACLU. Those communities representmore than 55 million residents.

“That is reflective of a real groundswell of feeling and concernabout many of these powers and their exercise,” the ACLU’s Yohnkasaid.

Portions of the law also have been challenged in court. Afederal judge in New York last month struck down the use of”national security letters,” which allow the FBI to obtainsubscriber information from Internet service providers without acourt order and prohibit providers from revealing that theyreceived the letters. The ruling was postponed for 90 days to allowan appeal.

Even some in Congress now are wary of a few of the law’sprovisions. In July 2003, the House of Representatives approved anamendment, 309 to 118, to prohibit the Justice Department fromusing its funds to seek delayed-notification warrants. A yearlater, representatives were split on an amendment that wouldprevent funds from being used to obtain library records.

In the Senate, Dick Durbin (D-Illinois) and Larry Craig(R-Idaho) co-sponsored a bill which would restrict the powers ofthe law without substantially altering it. For example, the billsets more specific criteria for when delayed-notification warrantscan be issued and requires authorities to give notice within a weekof the warrant’s execution, though a judge could extend this periodan unlimited number of times for up to a week at a time. The billalso would restrict when the FBI can seek business or other recordsby requiring investigators to show a specific connection between anindividual whose records are sought and a foreign power, whichcould include an international terrorist organization.

The bill has 18 other co-sponsors in the Senate, including Kerryand four Republicans.

“Protecting civil liberties isn’t a partisan matter,” Yohnkasaid. “I think that bodes well as we move into the comingyear.”

Northwestern political science Prof. Kenneth Janda, whospecializes in studying elections and political parties, saidliberals and libertarians are likely going to be the only groupsinfluenced by civil liberties concerns. Of course most liberalswould be voting against Bush anyway, he said. But libertarians, whotypically vote Republican because of their opposition to biggovernment, could change their votes out of privacy concerns.

“Libertarians have a real problem with the Republican Party,” hesaid. “On one hand, they like that the Republicans don’t spend much… But they’re not in favor of the fact that Republicans areexpanding the security apparatus of the state.”

Janda said most voters’ major concerns, such as war in Iraq andthe economy, likely will push civil liberties concerns to the side.But the nature of this election could change that.

“In a close election, where the election becomes decided by onlyone vote, then anything becomes a factor,” Janda said, “even thecolor of the candidates’ socks.”

Reach Michael Beder at < ahref=”mailto:[email protected]”>[email protected] and BreanneGilpatrick at [email protected].