AC05 panel encourages challenges to Patriot Act

Issue April 2005 By Andrea Barter, Esq.

Photo by David Gordon
Lee Gartenberg, House of Delegates member and director of Inmate Legal Services, Middlesex County Sheriff's Department, stresses the importance of local commitment in passing resolutions regarding the Patriot Act.
Are you willing to give up some of your liberties to be safe?

The Massachusetts Bar Association House of Delegates debated this question in May 2004 and rejected the proposition that the country cannot be both safe and free. Delegates passed a resolution contesting the USA Patriot Act and related federal executive orders, endorsing the protection of civil rights and civil liberties.

"In doing so, the MBA House of Delegates reaffirmed the Massachusetts tradition of citizen patriots demanding basic constitutional freedoms," said Carol Rose, executive director of the American Civil Liberties Union of Massachusetts.

"When we unpack the question - are you willing to give up some liberty in exchange for security - we see that it is misleading - that it assumes that we live in a world where liberty and safety are direct trade-offs."

Rose spoke during a seminar on the Patriot Act that was offered this year during Annual Conference 2005. The seminar was one of 13 "Briefings" offered to legal professionals. The "Briefings" programs allowed legal professionals to engage in thought-provoking debate on timely legal matters.

During the Patriot Act program, attendees learned more about issues that have arisen since the enactment of the Patriot Act, and how to formulate educational and lobbying strategies in support of the MBA resolution.

"The Patriot Act is a great marketing tool, but it is a misnomer," said panelist and House of Delegates member Denise Squillante of Denise Squillante, PC, Fall River. "It is really a law to strip us of our civil and constitutional rights and allow the government to act in secret,"

Squillante believes the Patriot Act is "a vague and obscure law." It passed a mere 45 days after Sept. 11 and is another example of mistakes made in times of war, similar to Lincoln's suspension of the writ of habeas corpus or the U.S. internment of Japanese during WWII, she said.

According to an analysis by Elaine Scarry, the Walter M. Cabot Professor of Aesthetics and the General Theory of Value at Harvard University, "the Patriot Act inverts the constitutional requirement that people's lives be private and the work of government officials be public; it instead crafts a set of conditions in which our inner lives become transparent and the workings of the government become opaque. Either one of these outcomes would imperil democracy; together they not only injure the country but also cut off the avenues of repair."

Squillante said she recognized the need to protect citizens, but stated it should be in a balanced way to protect civil and constitutional rights.

The MBA and the ACLUM do not take issue with the majority of the provisions of the Patriot Act. In fact, according to Rose, much of the act includes needed, incremental changes that are not controversial, such as amending money-laundering laws, creating new federal crimes for attacks on mass transportation facilities and the use of biological weapons.

However, they argue that certain key provisions infringe on civil and constitutional rights:

• Section 213, the "sneak and peek" surveillance power, permits the government to search a home with no one present and to delay notification indefinitely. Unlike the "knock and announce" standard, a person whose home is to be searched cannot view the warrant to make sure the address is correct or to make sure that the agent adheres to the warrant's description of what is to be searched.

• Section 215 allows the FBI to force anyone, including doctors, libraries, bookstores, universities and Internet service providers, to turn over their records on their clients or customers and makes it a crime for a librarian, doctor or bookseller to notify you if this has happened. Therefore, in pursuit of generic foreign intelligence or a terrorist investigation, with no individual target and no probably cause, private information can be gathered.

• Section 218 amends the Foreign Intelligence Surveillance Act (FISA) by eliminating the need for the FBI to show "probable cause" before conducting secret searches or surveillance to obtain evidence of a crime. FISA created an exception to the Fourth Amendment's requirement for probable cause when the purpose of a wiretap or search was to gather foreign intelligence. The rationale was that since a search was to gather intelligence, not evidence, the standards could be loosened. The Patriot Act expands this exception to cover wiretaps and searches for regular domestic criminal cases. An agent may now say that foreign intelligence is relevant or plays a part in the investigation: "probably cause' of a crime is no longer needed.

• Section 505, National Security Letters, expands the Attorney General's power to unilaterally demand the credit and banking records of anyone at all, including people who are not suspected of any involvement whatsoever in criminal activity, espionage, or terrorism.

• Section 802 creates a new definition of "domestic terrorism," which it defines as "acts dangerous to human life that are a violation of the criminal laws of the Unites States or of any state," and that "appear to be intended…to influence the policy of a government by intimidation or coercion." There is concern that this broad definition might be used against activists exercising their right to assemble and dissent, as well as attempts to use it in criminal cases involving gangs or drugs.

When considered in conjunction with executive orders allowing for increased surveillance of religious and political organizations; circumvention of due process requirements with "enemy combatant" designations and military tribunals; INS detentions without any showing the individuals are connected to terrorism; and the targeting of Muslims for "special interest" arrests, profiling, and registration requirements, the mandate to protect the rule of law becomes self-evident.

To that end, the panel encouraged its members to lobby their state and local officials to adopt a resolution to preserve civil liberties and ensure that the Patriot Act is not implemented in a way that conflicts with fundamental constitutional rights.

The model resolution seeks the enactment of five directives. It asks that the town:

• Continue preservation of residents' First Amendment rights, their right to counsel and due process, and to be free from unreasonable searches and seizures;

• Reject racial profiling of any group within the community;

• Urge the federal government to act in a fair, open and consistent manner by ensuring all individuals are afforded their appropriate rights to due process;

• Lobby members of the Massachusetts Congressional Delegation, urging them to monitor the implementation of the Patriot Act and actively work for repeal of the parts of that act and other executive orders that violate fundamental rights and liberties; and

• Send copies of the resolution to its Congressional Delegation, the U.S. Attorney General and the President of the United States.

"Across the country, more than 371 communities - including four state legislatures and 49 cities and towns in Massachusetts - have passed resolutions questioning provisions of the Patriot Act," said Rose.

This commitment "at the local level is important because most law enforcement takes place at the local level," said panel member Lee Gartenberg, House of Delegates member and director of Inmate Legal Services, Middlesex County Sheriff's Department.

In December 2004, Squillante and Gartenberg conducted a training session for county and city bar presidents who were interested in having the MBA resolution endorsed by the governing body of their city or town, and they continue to seek support to educate the public. It will become crucial in the next few months because of the sunset provisions of the Patriot Act and the consideration of Patriot Act II, according to Squillante.

Section 215 - access to records and other items under FISA, and Section 218 - foreign intelligence information, are scheduled to sunset at the end of 2005. Patriot II would, according to ACLUM documents, "allow the government to strip citizenship from any American who supports a group designated as a 'terrorist organization,' extend surveillance against US citizens without court oversight, authorize secret detentions, and allow the sampling of innocent Americans' DNA information without court order and consent."

"As a lawyer, I have power and responsibility. Part of my responsibility is to advocate for the Constitution and the Bill of Rights," said Squillante.

MBA President Kathleen M. O'Donnell was instrumental in persuading the Lowell City Council to adopt the MBA resolution.

Based on her experience with the process, she said, "It is important for us as champions of justice and protectors of liberty to get involved in this issue. I would like to see this resolution passed, but you want the discussion to occur. Get people thinking about these issues."