The Un-American Patriot Act: The new USA Patriot Act, enacted in response to the September 11th terrorist attacks, could pose more of a threat to personal liberty than to terrorists. (On the Home Front).

Some weeks back -- no one remembers exactly when -- an early draft of the USA Patriot bill containing a section entitled "Suspension of the Writ of Habeas Corpus" showed up at the House Judiciary Committee. Newsweek's Jonathan Alter wrote that the secret draft -- sent by Attorney General John Ashcroft's office -- "dumbfounded" members of Congress who read it. Representative James Sensenbrenner (R-Wis.), chairman of the House Judiciary Committee, promptly struck out the provision.

Although the Justice Department did not return repeated phone calls, Jeff Lungren of the House Judiciary Committee press office assured THE NEW AMERICAN that the draft in question was one of many very early versions of the bill, and that the provision was never given serious consideration. Nevertheless, it is disquieting to know that someone in official Washington might be seriously thinking about curtailing the ancient protection against arbitrary and unjust imprisonment. The final version of the USA Patriot Act (H.R. 3162), which President Bush recently signed into law, does not contemplate such extreme measures, but does expand federal government powers of surveillance, search, and arrest, and sets potentially harmful precedents for future encroachments on personal liberty.

Bombastically named the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001," H.R. 3162 is a confusing compilation of broad new surveillance, search, and seizure powers, some of which -- despite Mr. Ashcroft's claims to the contrary -- may be unconstitutional.

The new law greatly expands the legal use of so-called "black-bag" searches. Law-enforcement authorities using this secretive procedure are not required to notify the subject of an investigation until after the search has taken place, if authorities can claim that such a notification might hamper the investigation by allowing the suspect to tip off associates. In the past, suspects were usually notified when law enforcement conducted a search, although occasional exceptions were allowed for searches of electronic data. The new bill, however, has the effect of expanding to any criminal case the authority to conduct secret searches.

"Roving wiretaps" (or PR/TT warrants) allowing investigators to tap multiple phones used by a single suspect, as well as subpoenas for electronic records, may now be carried out nationwide based on a single order. Before H.R. 3162, such warrants could only be executed within the jurisdiction of the judge issuing the order.

Secret searches and warrants with nationwide, extra-jurisdictional force are quite possibly unconstitutional, since the Fourth Amendment requires warrants to be issued "upon probable cause ... particularly describing the place to be searched, and the persons or things to be seized."

H.R. 3162 also allows the CIA to access foreign intelligence information obtained by domestic grand juries, as well as from wiretaps and criminal investigations by the FBI and other law-enforcement agencies. This will have the unsavory consequence of blurring the line between law-enforcement and foreign intelligence gathering, and will effectively put the CIA into the business of spying on American citizens.

Overall, H.R. 3162 limits judicial oversight in the gathering of evidence, diminishes the distinction between the gathering of foreign intelligence and domestic law enforcement, and allows many of these provisions to be applied, not just against agents of foreign governments or against "terrorists" (which are very broadly defined), but against citizens of any stripe who might be deemed a threat.

Despite these dangerous new powers, only one senator, Russ Fein-gold (D-Wis.), voted against the bill, claiming that H.R. 3162 "does not strike the right balance between empowering law enforcement and protecting civil liberties." The House was more circumspect, with 66 members voting against the bill. One of the representatives who opposed the bill. Ron Paul (R-Texas), expressed grave concerns over many of its provisions:

I do not believe that our Constitution permits federal agents to monitor phones, mail, or computers without a warrant.... History demonstrates that the powers we give the federal government today will remain in place indefinitely. How comfortable are you that future Presidents won't abuse those powers?... The bottom line is that every American should be very concerned about the unintended consequences of policies promoted to fight an unending, amorphous battle against terrorism.

Yet president Bush praised H.R. 3162 as giving "intelligence and law enforcement officials new tools to fight a present danger," and promised to "enforce this law with all the urgency of a nation at war."

The USA Patriot Act, unfortunately, appears to be but the opening salvo of a multi-front assault on individual liberties and on the checks and balances undergirding our federalist system. According to Congressman Paul, "Every 20th century crisis ... led to rapid expansions of the federal government. The cycle is always the same, with temporary crises used to justify permanent new laws, agencies, and programs. The cycle is [now] repeating itself."