Editor’s Note: The following is a response to the Patriot Act op ed by Jonathan Baird on page 14.

Few pieces of recent congressional legislation have generated as much controversy as the USA Patriot Act, passed in the wake of the terrorist attacks of September 11, 2001. Unfortunately, those who consider themselves opponents of the Patriot Act almost universally have generated more heat than light in this controversy.

We seem to have lost the ability in this country to have rational, civil debates about controversial subjects. Instead, we have special interest groups tossing verbal hand grenades at each other, full of half-truths, unsubstantiated claims, misinformation, disinformation, and, sometimes, outright untruths. Lawyers have a responsibility to avoid this misguided polemical style. By our special training, knowledge, and skills, we should take the lead in insisting upon truth in public discourse and in shining light rather than just turning up the rhetorical heat.

I take issue with Jonathan Baird’s op ed, "The USA Patriot Act: A Critical Perspective." In it, he repeats one of the most egregious misunderstandings when he claims that the Patriot Act has caused "mass secret arrests with those being detained held without charges, indefinitely, without access to counsel or meaningful judicial review." This claim confuses the Patriot Act, which has nothing to do with this subject, with the detention of enemy combatants under the President’s war powers inherent in his position as Commander-in-Chief. These detentions in fact are now receiving judicial review, and the Supreme Court will soon rule on their legality.

The five-point recitation of alleged abuses represents the masterful "spin" put on what opponents claim are the "most notable and controversial sections" and deserves a point-by-point refutation and explanation:

Private Record Searches - Section 215. This section relates only to investigations conducted under the Foreign Intelligence Surveillance Act. The section in no way singles out libraries, video rental stores, churches, synagogues, or mosques. It merely allows the FBI to seek a court order for the production of any tangible item that may be evidence of foreign espionage or terrorist activity. Section 215 has a very narrow scope. It cannot be used to investigate ordinary crimes, or even domestic terrorism. Obtaining business records as evidence in normal criminal investigations by grand jury subpoena has been a standard practice of law enforcement for years.

Under existing law, these same entities can already be required to turn over these very same records in a normal criminal investigation by a grand jury subpoena issued by a prosecutor with no court oversight whatsoever. Section 215 gives more constitutional protections to targets by requiring judicial intervention and approval, and it explicitly protects First Amendment rights by providing that the government cannot conduct investigations of a U.S. person solely on the basis of activities protected by the First Amendment.

Last fall, in response to strong criticism from the American Library Association, the Attorney General declassified the information as to how many times this section had been used to seek records from public libraries up to that point. The answer was zero. This was the provision that had been most vilified by the opponents as the greatest threat to civil liberties contained in the act, and it had not even been used once in the first two years of the Act’s existence.

Preventive Detention for Non-Citizens - Section 412. Section 412 allows the government, with extensive judicial supervision, temporarily to detain terrorist aliens until they can be removed from this country. It is merely the equivalent of denying bail to a dangerous criminal defendant. Section 412 ensures that terrorists are not released into the community pending administrative deportation hearings because of the 100 percent certainty that they will not show up for their hearings.

The criticism of this section leaves out the very important fact that preventive detention of alien terrorists is fully reviewable by the courts. It applies to an extremely narrow class of aliens who have entered this country with the express intent to violate the espionage or sabotage laws, to oppose the government by force, to engage in terrorist actions, or to otherwise endanger the national security. Law-abiding Americans, even non-citizens, have nothing to fear from Section 412. In fact, law-abiding Americans who do not want to become victims of further terrorist attacks should welcome the protections we have under Section 412.

Seizure of Assets - Section 806. This section merely lines up the government’s ability to seize terrorists’ assets in the same way it can already seize the assets of drug dealers, organized criminals, or other common criminals who own forfeitable assets. The provision for allowing seizure without prior notice is simply a common sense requirement to make sure that the terrorists do not abscond, hide, or dissipate their assets. Under recent amendments to forfeiture law, defendants are granted many legal protections, including the right to recover costs and attorney’s fees if the government wrongfully attempts to seize their assets, so again this section does not threaten anyone’s legitimate civil rights.

Alleged "Criminalization of Dissent" - Section 802. This section provides a new definition of domestic terrorism, which is very narrow, indeed much more narrow than the definition of international terrorism. Therefore, the fear that lawful protest activities of legitimate groups under the First Amendment might be subject to government surveillance is another ex ample of overreaction. The new definition of domestic terrorism requires criminal acts that could result in death. Those activities are not protected by the First Amendment and never have been. Nothing in the Patriot Act comes even close to "criminalizing dissent."

Stay of Civil Lawsuits - Section 223. This section is the provision that gives an aggrieved party the right to sue the government if the government violates that party’s rights in a Foreign Intelligence Surveillance investigation. The section appropriately provides for a stay of the civil case if discovery would adversely affect the national security in a related criminal case. Federal law has other stay provisions when necessary to protect the integrity of a criminal prosecution. This again is simply a common sense provision that in no way precludes judicial review because the stay is lifted as soon as the related criminal case terminates.

The Patriot Act has provided the government modern tools necessary to win the war on terrorism in order to protect the life and safety of our citizens. Every American benefits from the provisions of this Act. Lawyers who are concerned about the possible effects of the Patriot Act should read the provisions of the Act itself, without first resorting to the myths and misinformation propagated by its critics.

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