Bob Barr

Outside View: Son of the Patriot Act
by Bob Barr as published by UPI

WASHINGTON, May 24 (UPI) -- As it has shown the world in its pre-emptive military action in Iraq, the Bush administration at home is following the philosophy "the best defense is a good offense" to obtain more power.

Despite serious concerns in Congress and in state and local governments across the country -- well more than 200 of which are on record as opposing some or all of the USA Patriot Act -- and by private organizations from across the political spectrum, the administration is actively seeking to expand this law.

Lawyers from the U.S. Department of Justice were recently sent up to Capitol Hill to testify in support of expanded powers beyond those it already garnered in the 2001 Patriot Act. Just as in 2001, when the original Patriot Act was delivered to the Congress in the immediate aftermath of the 9-11 attacks, the department raised the doomsday scenario that "without these new tools, there could very well be another terrorist attack." The administration also said the new powers would be employed only for cases involving true terrorism (which has not turned out to be the case).

Despite misgivings at the time (in 2001), and since at the time we were able to secure some concessions from the administration and include limitations on the Patriot Act, Congress passed the far-reaching legislation. Suddenly, the government could conduct so-called "sneak-and-peek" searches virtually any time it wanted.

Discretion heretofore exercised by federal judges to ensure that, in securing evidence to be used in a criminal case, the requirements of the Fourth Amendment of the Bill of Rights were met, was now severely weakened. The government was now able to secure access to private records without establishing a direct link between the evidence and the person on whom the evidence was being gathered. The use of secret proceedings in immigration cases was permitted.

These are but a few of the far-ranging new powers now enjoyed by the government as a result of the Patriot Act's passage. Almost immediately, the government began using them. And just as quickly, it began lobbying for more power -- expanded secret hearings (so-called "secret-secret" hearings in which the defendant doesn't even know there is a hearing going on that will determine his fate); a broader range of circumstances in which government field agents could secure administrative subpoenas (also innocuously known as "national security letters") to obtain evidence against citizens and other persons; an expanded definition of "terrorism;" the ability to use evidence gathered abroad, even if gathered in violation of our Bill of Rights; the ability to go after a suspected foreign terrorist without complying with the Fourth Amendment, even if there was no link whatsoever to any foreign terrorist group; criminal penalties if a person disclosed the fact they had been served a subpoena, even if simply to contest it in court; and more.

The "Son of Patriot" started making the rounds quietly on Capitol Hill.

Conservatives and liberals alike raised a ruckus when this expanded version of the seminal 2001 Patriot Act surfaced (unofficially, of course), and it caused much of the opposition to the parent statute to become better focused and more vocal. The administration disavowed its fingerprints were on this stealth legislation, though it was obvious it had been drafted and was being supported by the Department of Justice.

At the same time, the administration began discussions with key supporters on the Hill to enact pieces of Son of Patriot; sticking them in other bills.

This two-pronged strategy began to pay off. For example, last year it was able to secure passage, in an authorization bill, of expanded power whereby field agents could require persons or organizations to turn over evidence.

Now the administration is flexing its muscles, and seeking enactment of a stand-alone bill that would expand several of the Patriot Act's provision, including "secret-secret" proceedings and others noted above.

While the Department of Justice argues eloquently for expanded powers; clearly lacking from its testimony are any specific instances in which existing powers are insufficient to get the job done. This is the same reasoning it employed in 2001 - neglecting to concede that the reason the terrorists succeeded on 9-11 was not because the government lacked power to uncover their actions, but because existing laws were misinterpreted or simply not employed consistently or pro-actively.

Even as the administration is pushing Congress to grant it expanded Patriot Act powers, it is publicly moving to repeal the so-called "sunset provisions" in the 2001 law, even though those provisions -- which apply only to a handful of the Patriot Act's provisions -- don't kick in until the fall of 2005.

While House Judiciary Chairman Jim Sensenbrenner, R-Wis., has said publicly he opposes such a premature move to repeal the sunset provisions, other influential leaders on the Hill, such as Sen. Orrin Hatch, R-Utah, chairman of the Judiciary Committee in the Senate, are fully in the president's corner.

This is a battle that will continue to be fought, too, on several fronts throughout the remainder of the 2004 campaign season, and beyond.

If, however, the country is to retain some semblance of a Bill of Rights, including the guarantees against unreasonable searches and seizures, the vigilance of a Paul Revere and the resolve of a Winston Churchill, are needed now, more than ever.

Former U.S. Rep. Bob Barr is a frequent commentator on political and social issues and the chairman of the American Conservative Union Foundation's 21st Century Center for Privacy and Freedom