Daily Journal [Los Angeles] October 26, 2001
Anti-Terror Laws Expand Police Powers
By James Gordon Meek
WASHINGTON - President Bush is expected to sign into law today landmark legislation that will give investigators and intelligence gatherers sweeping new legal powers to combat terrorism. The measure expands the government's ability to conduct electronic surveillance, detain immigrants without charges and penetrate money-laundering banks. Stronger penalties would be imposed for harboring or financing terrorists. The number of crimes considered terrorist acts is expanded.
The legislation also allows nationwide jurisdiction for search warrants and electronic surveillance devices, extending those devices to e-mail and the Internet. Also authorized are "roving wiretaps," in which officials get orders that allow them to tap whatever telephone a person uses instead of one telephone at a time.
Approval came Thursday in the Senate on a vote of 98-1, with only Sen. Russ Feingold, D-Wis., voting against it. The House earlier passed the measure 356-66. Lawmakers, worried about possible abuse of the new wiretapping and surveillance powers, decided to place a four-year cap on that part of the legislation.
Nonetheless, debate continued over concerns raised by civil libertarians and other critics. The American Civil Liberties Union has vehemently denounced the Bush-sponsored legislation. But other government watchdogs and legal analysts say Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., was right when he told reporters that Congress had not "given birth to a monster."
"I don't read this bill as being abusive," said Michael Nacht, dean of the Goldman School of Public Policy at the University of California at Berkeley. "These are extraordinary times that require extraordinary measures."
And yet there were expressions of concern among experts - even from those, such as Nacht, who think the new law enforcement tools are appropriate - that the law contains no built-in periodic congressional review. Only a few provisions concerning electronic surveillance are due to expire in 2005.
"I don't like the notion that [the law] is open-ended," Nacht said. "There should be some sort of review built in." He recalled that President Lincoln declared martial law during the Civil War, but it didn't last beyond the war's end.
The problem with this war is that there is no conceivable end in sight, said intelligence analyst John Pike of GlobalSecurity.org.
"It's like the war on drugs. This is not something that is going to come to an end with a V-J Day or V-E Day. It's a state of siege," said Nadine Strossen, ACLU national president and professor of constitutional law at New York Law School. She said the limited sunset provisions in the new law are all but meaningless because such clauses are commonly renewed by Congress once they are set to expire.
The USA PATRIOT Act ("Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism") will give the government authority to seek court-ordered warrants for roving electronic surveillance of terrorism suspects who use "multiple electronic devices," with warrants issued in one court allowing intelligence to be gathered in any other district in the country.
Law enforcement officials will have greater access to online bank and credit card transactions and can use search warrants instead of PEN register warrants to get at a suspect's voice mail. Grand jury testimony also will become accessible to intelligence and law enforcement officers when it pertains to terrorism or foreign intelligence. The USA PATRIOT Act also will give the Immigration and Naturalization Service and the State Department unprecedented access to the FBI's national crime computer to keep out alleged undesirables.
Authorities will be able to detain foreigners without charges for seven days and can delay notification of secret court-ordered searches if it "may have an adverse result." Notice of searches will be given "within a reasonable period of [the warrant's] execution," the new law reads.
David Sobel, general counsel at the Electronic Privacy Information Center, said privacy advocates were pleased that the legislation demands that law enforcement agencies using electronic "sniffer" devices, such as the FBI's Carnivore computer, submit reports to courts after getting warrants to collect electronic communications.
But he warned that other provisions, such as the delayed notification of search warrants, could actually jeopardize prosecutions. Then again, he said, "So much of this is not geared toward potential prosecution ... this is intelligence gathering."
"Robert Kennedy's Justice Department, it is said, would arrest mobsters for spitting on the sidewalk if it would help in the battle against organized crime," Attorney General John Ashcroft said Thursday. "It has been and will be the policy of this Department of Justice to use the same aggressive arrest and detention tactics in the war on terror."
Despite earlier concerns, the American Bar Association welcomed the final version of the legislation, which ABA Washington Director Robert D. Evans called a "moderate" legal approach to the national crisis.
"The Bush administration showed a lot of flexibility and accommodation to those with differing views on what ought to be in the legislation and the approach taken on the provisions," Evans said.
