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To assist council’s debate: A primer on the Patriot Act

Bob Abele

As a visitor to Nevada City and as author of a book on the USA Patriot Act, I would like to assist in discussion of the law in an informed manner. Following is a list of issues that make the act so controversial,with relevant parallels from the U.S. Constitution. Whether it is serious enough to merit a resolution by the Nevada City Council is, of course, up to local citizens to decide.

First Amendment: The Supreme Court has historically given wide range to free speech as essential to a democracy. Sections 215 and 505 of the Patriot Act issue gag orders on persons visited by FBI investigators. Section 412 allows detention and deportation of any immigrant who even verbally supports a terrorist organization. And, Section 802 defines “domestic terrorism” as “acts dangerous to human life that are a violation of criminal laws … [that] appear to be intended … to influence the policy of a government by intimidation or coercion.” This very vague definition allows the government a far wider range of discretion regarding whom to wiretap and collect information on, and whom to arrest, than any federal law heretofore.

Fourth Amendment – “Probable cause”: The government must have “reasonable grounds” for conducting searches and surveillance on U.S. persons. PATRIOT changes federal law from the requirement that the government produce evidence of possible wrongdoing to the watered-down notion that there need only be “suspicion” of a person to engage.

Section 214 of the Patriot Act allows bypassing of the usual requirement of a warrant for electronic recording. Section 215 states the FBI does not need to suspect actual wrongdoing in order to seize evidence and permits delayed notification of the warrant to the person searched. This section also repeals limits on which “tangible thing” may be gathered up, including library and medical records and bookstore purchases. Section 218 suspends “probable cause” altogether in favor of wiretapping for “significant purpose” involving criminal (i.e., not limited to terrorist) investigations. And under Section 412, the government need not present evidence to a court before jailing immigrants. This applies to suspected, not proved, terrorists.

Fourth Amendment – Privacy: Since 1890, the U.S. Supreme Court has unwaveringly declared the right to privacy is implied in the Fourth Amendment. Patriot Section 203 allows government agencies investigating any criminal matter to share that information with other agencies. Section 206 allows “roving wiretaps,” where FBI monitors of a library computer, for example, would track any person using that computer without their knowledge or consent.

Section 213 permits “sneak-and-peek” searches – an official may enter a person’s home or office, look around, and leave without notification they were even there or what was examined. Sections 214 and 216 allow devices that record incoming and outgoing numbers to telephones and computers. Section 215 allows the FBI to require any record of any person from anyone and requires judges to approve of it without proof that a person is an agent of a foreign power.

Constitution Articles I-III: Requiring a balance of power between the Judicial, Executive, and Legislative branches of government, these articles provide a guarantee that power will not be consolidated or abused by one branch.

Patriot Section 203 allows information sharing between the FBI, CIA, INS and other federal agencies without judicial oversight, as well as disclosure of grand jury information. This applies to all criminal (i.e., not just to terrorist) investigations and includes U.S. citizens. No fewer than five sections eliminate the judicial branch from the decision-making processes and activities of the Justice Department, including forcing people to turn over information on other people.

Information-sharing: Patriot “breaks down the walls” erected due to illegal domestic spying in the 1970s to limit federal power. By allowing the CIA, FBI and other federal agencies to use the grand jury information-gathering content and process, the act drops a cloak of secrecy over all investigative functions for any criminal act, not just terrorism. Second, and perhaps most importantly, it removes oversight of this process by a federal judge. This concentrates a tremendous amount of power into a few hands at the federal level, to say nothing of a tremendous amount of information that is now at their disposal. The legal matter involved here also concerns the CIA charter, which bars it from domestic information-gathering.

If American citizens find themselves alarmed by these federal government actions, they must speak out in whatever way they can. When city councils, along with county and state governments, send their collective voices to the federal government, telling them that their actions are unacceptable, that message is a strong one.

Such resolutions need not be representative of each and every member of a community. Democracy only requires a majority of concerned citizens, speaking in unison, and what better way to speak in unison than through elected city officials?


Dr. Robert Abele is a professor of philosophy at Illinois Valley College in the Chicago, Illinois area and is the author of “A User’s Guide to the USA Patriot Act and Beyond,” due out in the fall.


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