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No pause in Patriot Act pounding

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By ROBYN E. BLUMNER, Times Perspective Columnist
Published October 26, 2003

When pressed over whether Lakers star Kobe Bryant should continue playing basketball while the issue of his alleged sexual assault is under consideration by the courts, NBA Commissioner David Stern told the Los Angeles Times: "Absolutely. We don't have a Patriot Act in the NBA."

It appears the repressive nature of the USA Patriot Act, which is 2 years old today, has penetrated the American consciousness to such an extent that it now stands as shorthand parlance for any type of unfairness. Despite Attorney General John Ashcroft's barnstorming tour of the country, selling the act to friendly audiences of law enforcement, nearly 200 communities, including three states, have passed resolutions objecting to its excesses.

You would think this general unease would cause President Bush to pause before proposing additional entrenchments. But no, it seems to only have spurred him on. In a speech given on the eve of the second anniversary of the 9/11 attacks, our tin-eared president decided the time was ripe to propose Patriot Act expansions.

The proposed changes, which the president called the closing of "loopholes," may seem technical, but within those details lie our character as a nation. Are we a model of liberty, even in the face of threats to our national security? Or has al-Qaida's ragtag band impelled us to unravel a 200-year commitment to due process? Which is what Bush and Ashcroft are pushing.

Bush wants three additional powers from Congress.

First, he wants to give the Justice Department the authority to confiscate records and compel testimony without review by a court or grand jury.

The Patriot Act had substantially changed the law in this area by removing the requirement that federal agents tie the records they are seeking - be they library, medical, financial, educational or other records - to an investigation of a foreign agent or terrorist. Now, all the government has to do is certify to the Foreign Intelligence Surveillance Court - a court that operates in secret and is only open to government lawyers - that the records are "sought for" an investigation into terrorism or espionage.

Where once the FBI could only demand that bookstores turn over records on a particular customer who was under suspicion, now the FBI can seize the entire customer database as long as it somehow figures in an ongoing investigation. The Patriot Act made the courts little more than a rubber stamp for the FBI.

But even this is apparently too much of a paean to the separation of powers for Bush. He wants passage of the "Antiterrorism Tools Enhancement Act of 2003" that would give the FBI "administrative subpoena" authority to confiscate any records and compel any testimony on its say-so alone. The bill would eliminate entirely court oversight, or as Bush would call it "interference."

Second, Bush wants to chip away at the right to bail. Current law allows a judge to deny bond for anyone shown to be dangerous or a flight risk. And, for anyone accused of international terrorism, there is a presumption against granting bond.

Not good enough, according to the president. He wants passage of the "Pretrial Detention and Lifetime Supervision of Terrorists Act of 2003," a bill that would keep people accused of a whole range of new crimes behind bars pending trial by making those crimes presumptively "no bond" offenses.

This is an attempt to lock people up first and investigate later. In the aftermath of the 9/11 attacks, more than 750 immigrants were jailed for months while the Justice Department looked into potential ties to terrorism. In the end not, one was charged. Now Bush wants the power to do the same thing to Americans and immigrants here legally.

And third, Bush wants to expand the reach of the federal death penalty by making it applicable to "domestic terrorism."

Under the Patriot Act, the crime of "domestic terrorism" couldn't be more broadly written. Any criminal act intended to influence the government through "intimidation or coercion" involving "dangerous acts" qualifies. Aggressive protesters of all stripes from Greenpeace activists to abortion foes could easily fall within this definition, opening the door for politically motivated executions.

Bush also wants the death penalty for those convicted of providing "material support for terrorism," a law that can be violated even when people think they are giving money to a charity and don't know the group is a designated terrorist organization.

While Bush is working to undo more of our liberty, there are bipartisan efforts in Congress pushing back. Perhaps the most promising is the "Safety and Freedom Ensured (SAFE) Act" that would rollback some of the worst excesses of the Patriot Act. If even NBA commissioners know the Patriot Act is a bad thing, what is Congress waiting for?


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