Rewrite Patriot Act to protect freedom to protest

Thursday, February 19, 2004

Copyright 2004 by Nat Hentoff. Published with permission. May not be republished (see endnote).

David Keene, chairman of the American Conservative Union, makes the essential point that “it is not necessary to sacrifice civil liberties in order to increase security.” In agreement, a number of prominent conservative organizations have joined with liberal groups to tell the president and the Republican congressional leadership to revise certain language in the Patriot Act.

The Free Congress Foundation is part of this “Coalition of Conscience,” as some of the diverse participants call it. The foundation vigorously protects the free exercise of religion and the sanctity of traditional marriage, among its other concerns.

In a recent report, “Better Now Than Later: Tightening the USA Patriot Act,” Steve Lilienthal, the foundation’s director of the Center for Privacy and Technology Policy, details bipartisan bills now in the Senate that do not repeal any part of the Patriot Act, but do limit some of its language that imperils a number of our fundamental liberties.

He cites Alaska Republican Sen. Lisa Murkowski’s Protecting the Rights of Individuals Act, which, Mr. Lilienthal writes, “revises the Patriot Act to ensure a higher standard of judicial oversight, and accountability to Congress.” Another vital section of the bill, which has bipartisan Senate support, is its “modification of the definition of domestic terrorism.”

A summary of this proposed law explains: “The USA Patriot Act provided a new definition for domestic terrorism, covering any act dangerous to human life that is a violation of any federal or state criminal law, including misdemeanors. This could be broadly interpreted to designate typical political protesters engaged in civil disobedience as ‘terrorists.’”

This loose language should be rewritten, says Mr. Lilienthal, “to ensure political activists exercising their legitimate First Amendment rights cannot be targeted by overzealous bureaucrats or a future administration. That was something that responsible members of Congress never intended when they passed the Patriot Act in 2001.”

So, instead of defining domestic terrorism as violating any federal or state law, including misdemeanors, Miss Murkowski’s bill would modify and narrow the Patriot Act’s definition of domestic terrorism. The revised definition would cover “only activities that involve acts dangerous to human life that are a federal crime of terrorism as already defined in the United States Code.”

Thereby, this proposed statute would prevent “anti-abortion and antiwar protesters being labeled ‘terrorists.’”

Another section of this bill that would tighten the language of the Patriot Act to ensure our being both safe and free “limits the FBI’s ability to look at sensitive, personal information — including library and Internet records — without some specific suspicion.”

Many Americans do not know that — as the summary of the Protecting the Rights of Individuals Act emphasizes — “under the Patriot Act, the FBI can get a secret court order to require any business — including libraries, bookstores, hospitals and Internet providers — to turn over entire databases of personal information so long as the FBI asserts the information is ‘sought for’ an antiterrorism or counterintelligence investigation. A standard of review that effectively results in a judicial rubber stamp.”

“The Protecting the Rights of Individuals Act,” says Miss Murkowski, “requires the FBI to submit some minimal evidence that the person whose records are sought is a suspected terrorist before it can get a court order to search personal, sensitive files.” At present, this is not required.

“And, for material protected by the First Amendment, such as library and bookstore records, the FBI must meet the Constitution’s ‘probable cause’ standard to obtain the information.”

The safeguards of individual liberties in this bill should be known to all Americans. But so far the media has largely overlooked Miss Murkowski’s crucial legislation, while giving such ample space to Janet Jackson’s Super Bowl revelation and her brother Michael’s travails.

It is not enough to say, as the Patriot Act currently does, that “such investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment.” For American citizens, under the Bill of Rights, this is not nearly a sufficient guarantee against government overreaching as it would be if the FBI were required to adhere to the Fourth Amendment’s guarantee of “probable cause” before searching our records.

Sen. Orrin Hatch, chairman of the Senate Judiciary Committee, should hold public hearings on the Protecting the Rights of Individuals Act, and hold them soon. If not, why not — in the public interest?

Published with the permission of Nat Hentoff. May be linked to but not republished without Hentoff’s permission. Originally posted on The Washington Times Web site on Feb. 16. Hentoff is a contributing editor to Editor & Publisher and also writes for The Village Voice in New York.

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