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Jewish World Review May 11, 2004 / 20 Iyar, 5764

Nat Hentoff

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Improving the Patriot Act


http://www.NewsandOpinion.com | Sen. Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee, has vigorously — and rightfully — criticized Democrats on the committee, and on the Senate floor, for obstructing the president's nomination of federal judges by filibustering them rather than allowing an up-or-down vote by the entire Senate, as the Constitution requires.


But now, Hatch himself is refusing to hold a full hearing by the Judiciary Committee of a strongly bipartisan bill to improve — not repeal — sections of the increasingly controversial USA Patriot Act.


Introduced by Larry Craig (R-Idaho), with Richard Durbin (D-Illinois), the Security and Freedom Ensured (SAFE) Act has 18 Republican and Democratic co-sponsors in the Senate. There is also a companion, bipartisan House bill (H.R. 3552). Support for these bills span the political spectrum, from the American Conservative Union to the American Civil Liberties Union.


In a letter to Hatch, asking that he schedule a hearing "as soon as possible," Craig and Durbin point out that, even before there has been a hearing, Attorney General John Ashcroft declared that President Bush would veto the SAFE act if it's passed. This hardly reflects the executive branch's willingness to wait for the legislative process in our rule of law.


What are Hatch and Ashcroft afraid of? Let's see.


Section 215 of the Patriot Act has spurred particular resistance among both conservatives and liberals. It provides the FBI with access, during foreign intelligence and international terrorism investigations, to an array of business records — financial reports, genetic information, library use, educational records, credit reports and medical records.


As Craig and Durbin emphasize, the FBI only has to show a court that these records are "sought for" foreign intelligence and international terrorism investigations. Most troubling, the senators add, is that "The FBI need not show that the documents relate to a suspected terrorist or spy." No specific individual information need be named to get the court order. And once the FBI shows the certification for the search, the court has no authority to ask for anything more. This does not meet the probable cause requirement of the Fourth Amendment, or even reasonable individuated suspicion.


Section 215, accordingly, say Craig and Durbin, "gives the government too much power to seize the personal records of innocent Americans who are not suspected of involvement in terrorism or espionage."

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The proposed SAFE Act remedies the executive branch's excessive intrusion into our privacy by requiring the FBI "to certify that there are specific and articulable facts giving reason to believe that the person to whom the records relate is a terrorist or a spy. ... The SAFE Act would thus prevent broad fishing expeditions."


If the government is not required to search our records on the basis of individualized suspicion, then former U.S. intelligence officer Christopher Pyle (now a political science professor at Mount Holyoke College) has a chilling point: "We need a requiem mass for the Fourth Amendment, because it's gone ... buried by the Patriot Act."


Another example of how the SAFE Act mends but does not break the Patriot Act involves how roving wiretaps are currently allowed under the Patriot Act. Suspects do not use only one phone in a neighborhood or city. Accordingly, a single judge can now authorize a wiretap that applies to any phone a suspect uses, anywhere.


But, as Craig and Durbin point out to Orrin Hatch, the FBI, in using roving wiretaps for intelligence purposes, is not required to "specify the facilities to be tapped." Moreover, under the Intelligence Authorization Act of 2002, the FBI can obtain a "John Doe" roving wiretap that does not have to include the place — or the target — to be wiretapped.


What the SAFE Act requires, instead, is that "law enforcement ... ascertain the presence of the target before beginning surveillance and identify either the target of the wiretap or the place to be wiretapped." There would be no more "John Doe" roving wiretaps, "thereby ensuring that the government does not surveil innocent Americans who are not the target of the wiretap."


An April 16 Salt Lake City Tribune editorial, addressed to Hatch, says that "it is hard to imagine that a credentialed conservative such as Utah's senior senator would view any other federal statute, especially one as far-reaching as the law (the Patriot Act) hurriedly written in the wake of Sept. 11, 2001, as so perfectly drawn and flawlessly executed that it not only needs no revisions but also should be immune to all questions and doubts from the public it purports to protect."


Surely, the reasonable Sen. Hatch, whom I've known for many years, is not going to keep on obstructing a hearing on a clearly reasonable and SAFE Act, are you, sir?


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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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