- The Washington Times - Tuesday, October 30, 2001

Last week, the United States House of Representatives and Senate passed and President George W. Bush signed the "U.S.A. Patriot Act" of 2001. The statute substantially upgrades our law enforcement arsenal against terrorism, a clear and present danger to the civil rights of Americans to avoid death in suicidal attacks and to the freedoms of speech, religion, or sister fundamental liberties without fear or intimidation by terrorists.
These observations, however, are only one side of the U.S.A. Patriot Act's coin. What strengthens law enforcement correspondingly heightens the risk of selective targeting of unpopular or unorthodox minorities. Moreover, the bedrock right to be left alone is further disturbed. Self-censorship may be embraced to escape government suspicion and the risk of trauma and steep legal fees entailed by an investigation, simpliciter. Indeed, the title of the law itself betrays a dislike of dissent by insinuating that criticism is unpatriotic.
In other words, the law grapples on a smaller scale with the inescapable dilemma in free societies voiced by President Abraham Lincoln in his famous July 4, 1861 address to Congress: must government either be too strong to maintain civil liberties or too weak to maintain order? The answer to the riddle is "no," but the key is striking a reasonable balance.
Only a few pages in the new tome-like anti-terrorism law justify worry on that score. The vast majority is laudable and unalarming. For example, the intentional harboring or providing material support for terrorists are made federal criminal offenses; assets of terrorist organizations are subject to forfeiture; and, statutes of limitations are removed for certain terrorist crimes. Contrary to detractors, "domestic terrorism," is defined with adequate specificity for fair notice: namely, criminal activity dangerous to human life that appears to be intended to intimidate a civilian population, to influence government policy or to affect government operations by mass destruction, assassination, or kidnapping. That definition is a model of clarity compared with the felony prohibitions of the Sherman Antitrust Act criminalizing "unreasonable" restraints of trade and that have survived Supreme Court review.
The troublesome provisions are threefold. The spigots are opened for a sharing by the Justice Department of criminal investigative information that bears on foreign intelligence or counterintelligence with companion national security, defense, or immigration agencies. Thus, customarily secret grand jury evidence within this universe may be shared without a judicial finding of good cause. Ditto for electronic, wire and oral interception information or other non-grand jury evidence come upon by the department.
The problem here is institutional incentives. The would-be recipient agencies may, sotto voce, hector the attorney general to summon grand juries or the FBI to open investigations in hopes of obtaining information pertinent to their duties and to thicken their citizen and noncitizen files.
Since grand juries by law may snoop for virtually any reason, including for reassurance against lawbreaking, the potential for hidden abuse is troublesome. And as the independent counsel's grand jury investigation of Monicagate underscored, compelled testimony of ordinary citizens is often frightening and financially draining, even when no crime is unearthed. The same is true if a swarm of FBI agents knock on the door and ask for a "voluntary" interview.
In other words, the sharing creates incentives for artificial criminal investigations that invade privacy and encourage citizen docility. The law admittedly confines use of the shared foreign intelligence and counterintelligence to official duties, and creates administrative and civil remedies for unauthorized disclosures.
But is it likely that during our indefinite war on global terrorism the gathering and maintenance of too many terrorism files will be condemned or that enforcement resources will be diverted from chasing terrorists to chasing leakers of defamatory foreign intelligence or counterintelligence information?
Second, the law authorizes belated notice to subjects of search warrants. Tardiness is permitted if a court finds "reasonable cause" to believe that an immediate alert might jeopardize the investigation, the warrant prohibits the seizure of tangible property (except where the court finds reasonable necessity), and, the warrant specifies a "reasonable" limit on tardy notice.
Punctuality is a legitimate law enforcement concern. A criminal conspirator may destroy incriminating evidence and alert co-conspirators of an imminent need to flee. But warrants also regularly target the innocent. Prolonged government secrecy in searching a home or small business will naturally engender fear of a secret police among ordinary citizens. A search of a small enterprise in which documents and property are seized might mean bankruptcy without an immediate opportunity to seek their return pursuant to legal remedies. Meticulous congressional oversight here is thus imperative to insure that a sensible balance between law enforcement and citizen privacy has been struck.
Third, the attorney general is directed to detain any alien reasonably suspected of terrorism or other activity dangerous to the national security for seven days. Release is then required unless deportation or criminal proceedings have commenced. If deportation is unlikely because a receiving country is unavailable, then the alien may nevertheless be detained indefinitely if a release might endanger the national security or any community or citizen.
In criminal prosecutions of citizens, according to the Supreme Court, the Fourth Amendment's ban of "unreasonable" seizures requires a judicial determination of probable cause to believe a crime has been committed within 48 hours of an arrest. Whether the 48-hour rule would extend to aliens subject to deportation or criminal arrest is uncertain.
In any event, seven days of detention can wreak havoc in an innocent alien's life, and the incentive to detain longer rather than shorter when terrorism fears are acute will be overwhelming. This provision also deserves close congressional monitoring to forestall a modern version of Attorney General A. Mitchell Palmer's ill-starred immigration raids after World War I when a "red scare" was ascendent.
As President Ronald Reagan said of arms control agreements with the Soviet Union, trust the government with an enlightened administration of the U.S.A. Patriot Act, but verify.

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