FOUR WEEKS AFTER the September 11 attacks, in an atmosphere of national trauma, the House of Representatives overwhelmingly passed the USA Patriot Act. Within two weeks after that, the Senate voted 98-1 to follow the House. The next day, October 26, 2001, President Bush signed the bill into law.

The Patriot Act is a massive piece of legislation containing more than 150 sections under ten separate Titles. It is daunting to summarize a bill of such complexity.

At the time of its passage, many legislators complained that they did not even have time to read the bill they would be voting on and there was almost no public debate and no conference or committee report. Rep. Barney Frank (D-Mass.) described the legislative process around the Patriot Act as follows: " This was the least democratic process for debating questions fundamental to democracy that I have ever seen. A bill drafted by a handful of people in secret, subject to no committee process comes before us immune from amendment."

In spite of the truncated process, supporters of the Patriot Act say we’re not to worry. They portray critics as over-reactive or hysterical. According to supporters, national security and the threat of terrorism justify increased police powers. Essentially, their position is: "Trust us."

So what is troubling about the Patriot Act? In the broadest sense, it gives too much power to the executive branch—the al most-unchecked power to conduct surveillance, to obtain private records, to act in secret, to preventively detain non-citizens, to criminalize and possibly repress non-violent political dissent and to evade judicial review.

Some of the more notable and controversial sections are:

Private Record Searches - Section 215 of the Act amends rules on record searches so that third-party holders of financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without knowledge or consent of the person involved as long as the government says it is protecting against terrorism. Previously, the government required, at a minimum, a warrant and probable cause to access private records. The Act also expands electronic surveillance to include Internet monitoring, not just telephone taps.

Preventive Detention for Non-Citizens - Section 412 allows the government to detain non-citizens for seven days without charges if the attorney general certifies that the person is a threat to national security. At that point, the government must charge the non-citizen to continue to detain him. However, even if the person is cleared of charges, the Patriot Act gives the attorney general the power to certify the non-citizen a threat to national security and incarcerate him indefinitely provided he is recertified every six months. It is worth pointing out that the government did not need the Patriot Act to secretly arrest and indefinitely jail over 1,200 Arab or Muslim men during the four months following September 11.

Seizure of Assets - Section 806 amends the civil asset forfeiture statute to allow the government to seize assets without notice and a prior hearing. The individual facing seizure of assets does not need to have been convicted of any crime. It is enough for the government to allege that there is probable cause to believe the assets were involved in domestic terrorism. Since the procedure would be civil, the accused is not entitled to be represented by an attorney at public expense if the person cannot afford counsel.

Criminalization of Dissent - Section 812 expands the definition of terrorism to include domestic terrorism as opposed to international terrorism. It is worrisome that many protest activities protected by the First Amendment could be construed as violating the Act since the definition of domestic terrorism is both vague and broad.

The government has also been targeting "material support" to groups designated as "terrorist" by the secretary of state. While superficially this does not sound objectionable, individuals become liable not based on intent but on connection to others who have committed illegal acts. This is a clear threat to freedom of association.

Stay of Civil Lawsuits - The Act contains a provision that would allow the government to obtain a stay of any civil lawsuit challenging the government’s willful violation of specified provisions of the Patriot Act where "the court determines that civil discovery will adversely affect the ability of the government to conduct a related investigation or the prosecution of a related criminal case." Staying lawsuits is a clever way to preclude any judicial review.

During the next year, the battle around the Patriot Act is likely to heat up. Key provisions of the Patriot Act are set to expire on December 31, 2005. President Bush has made clear his desire to renew this legislation. Additionally, Patriot Act II, a draconian sequel, is waiting in the wings.

The Patriot Act threatens the First, Fourth, Fifth, and Sixth Amendments of the Bill of Rights. Lawyers have a special professional responsibility to speak out and protest against the erosion of civil liberties. Since 9/11, we have witnessed mass secret arrests with those detained being held without charges, indefinitely, without access to counsel or meaningful judicial review.

We do not need to sacrifice fundamental freedoms unnecessarily. The U.S. will be stronger in the fight against terrorism if we protect human rights at home and abroad.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer