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Patriot Act gives Feds thick shield to hide behind, invade privacy.

Byline: BRIAN MICHAELS For The Register-Guard

THE UNSPOKEN REASONING behind U.S. Attorney Chris Cardani's assessment of the USA Patriot Act (quoted in an Oct. 25 Register-Guard article about a University of Oregon forum) is, "We are the government; trust us to do the right thing." History does not support this notion.

The government will not tell you, and the Patriot Act does not require the government to tell you, about instances where the act was used against Americans. Citizens have been searched and their privacy invaded, with no criminal activity uncovered. In response to these abuses, 10 city governments have approved resolutions opposing the Patriot Act. A subcommittee of the Eugene City Council will consider a similar resolution at noon on Wednesday.

The Patriot Act, hurriedly approved by Congress in the wake of the Sept. 11 attacks, adapts much of the Foreign Intelligence Surveillance Act for use against ordinary citizens. The surveillance act was intended to protect America from foreign intelligence espionage, and under that premise allowed the Justice Department to survey and search foreign intelligence agents outside the scope of constitutional privacy and search and seizure law. This included a secret court called the FISA court.

One instance of the use of FISA is section 215 of the Patriot Act. This section amends current law to allow application to the FISA court for an order to compel production of any business records from anyone for any investigation to protect against international terrorism or clandestine intelligence activities. This sounds laudable on the surface, except when you read the fine print:

No showing need be made that the person is an agent of a foreign power.

The court must grant the order if the required elements are listed.

The order will not say it was issued under section 215.

Persons served by the order (employers, telecommunication companies, banks, etc.) are prohibited from revealing there is such an order.

There is no requirement that items seized or their usefulness be reported to the court or Congress.

The implications are staggering: Secret courts issuing secret orders to secret police to secretly peer into the personal and financial privacy of Americans - all with little or no showing of danger, and with no method of accountability. This type of warrant is similarly applicable to education records, computer records and telecommunication records. Section 505 allows for search of some records without even a court order.

The impact on computer surveillance and the inclusion of computer activity is equally disturbing. Without requiring any court order, but by mere virtue of a unilateral subpoena, someone in Cardani's position may acquire a detailed analysis of an American's Internet uses, including session times and duration, temporarily assigned network addresses, and means and source of payments - including credit card numbers, bank account numbers and locations.

There is, of course, a prohibition against anyone served with such a subpoena from informing the subject of the subpoena. And there are fewer reporting requirements than required by section 215, as the subpoenas originate in the office of the United States Attorney and all information derived therefrom remains there. To determine the breadth of governmental intrusions into our lives, Cardani would have to say whether he will subject all subpoenas generated by him or his office to public inspection.

There is also the well-known "sneak and peek" provision, allowing law enforcement to obtain a search warrant and search any American's residence and effects, without ever informing the citizen of the search. Besides the obvious secret and shadowy nature of sneaking around an American's home, this also prevents anyone from ever challenging the statements the government made in order to obtain the warrant. Was it false? Was it political? Was there probable cause of criminal activity? One will never know.

In a recent stunning ruling, the FISA court revealed that the Justice Department admitted to "misstatements and omissions of material facts" in 75 applications for search warrants and wiretaps, and rejected Attorney General John Ashcroft's secret request to allow more evidence-sharing between federal counterintelligence investigators and criminal prosecutors.

This lack of accountability is the core difference between Cardani's analysis and mine. Cardani's statement that only the rights of criminals will be impinged is unsupported by the act's absence of any reporting of all citizens whose rights were violated. Further, when Cardani states that "The Patriot Act gives us tools to better hunt them down. No question about that," this, too, is without substantiation.

Congressman Peter DeFazio was one of three in the entire Oregon congressional delegation to vote against the act. Speaking while his copy was still warm in his hands from its hurried printing, DeFazio said, "This is not the way to defend liberty and fight terrorism. I fear that this bill, since I do not know what is in it, could be the Gulf of Tonkin Resolution for civil liberties, rather than the tools our law enforcement agencies really need."

We have since learned that the government had all the legal tools it needed to search the home of Zacharias Moussaoui, a suspected accomplice of the Sept. 11 hijackers, before Sept. 11, but did not even apply for a search warrant. Similarly, the FBI ignored internal memoranda advising of irregular flight school activities and failed to establish surveillance. The tools of which Cardani speaks were already there.

It is no surprise that those who search and peer into the privacy of Americans would welcome any opportunity to do so.

It is also no surprise Americans would want more accountability from their government, and would challenge any law which allows for less accountability while simultaneously granting broader authority.

Brian Michaels is a Eugene attorney specializing in criminal defense, free speech and civil rights issues.
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Title Annotation:Columns
Publication:The Register-Guard (Eugene, OR)
Article Type:Column
Date:Nov 5, 2002
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