Outside view: Patriot Act problems
by Bob Barr
As published by UPI

WASHINGTON, Sept. 3 (UPI) -- This year's quadrennial Olympics, held in the birthplace of democracy itself, had, as do the Games every four years, much of Greek tragedy within their two week-run. Great triumph was overlaid with agonizing defeat; some expectations were dashed as others rose to unexpected heights.

   An analysis of the United States' post-9/11 counter-terrorism efforts, too, reveals elements of Greek tragedy. Set on their heroic paths with the best and most noble of intentions, the tragic heroes of yore are being inevitably undone by flaws buried deep in their character.

   To be sure, some of our efforts have been superb. We have managed to capture and interrogate large numbers of top al-Qaida operatives; severely constricting its ability to do us harm, at least in the short term. The Taliban can no longer play host to international terrorists in Kabul.

   And, perhaps most important, people in the United States now consider foreign policy and national security to be top campaign issues, attention that is essential in a post-Cold War world filled with dangers known and unknown.

   However, our government has made missteps on several occasions, and done so in the fashion of Greek tragedy.

   Many of the counter-terrorism initiatives undertaken by the Bush administration might have been well-meaning, with noble purpose, but are inherently flawed in their lack of allegiance to basic U.S. constitutional principles. Like the classical, mythical hero, these inherent flaws make them pernicious to our freedoms and, ironically, ineffective in succeeding in their actual mission.

   Consider, for instance, the USA Patriot Act. The act was drafted in record time in the days immediately following the attacks of Sept. 11, 2001, by top lawyers at a Justice Department, FBI and CIA all still reeling from those attacks.

   The law was meant to update the power of the government to bring it in line with emerging technology; to provide added funds for translators, border security and emergency victim relief; and to assure the American people that something was being done. All of these praiseworthy things it did, hence why many of us in Congress voted for it (and still support much of it).

   However, the law tragically emerged from the Congress saddled with provisions that simply went too far. Like a hero in a Greek tragedy reaching too far or flying too near the sun, provisions in the Patriot Act reach too far and undermine the essential principles on which our Constitution is founded -- the Bill of Rights.

   One notorious provision, the "sneak-and-peek" provision, opens the door to the proliferation of secret search warrants that do not require the police to notify the person being searched until much after the fact. Certainly, the power to conduct secret searches in certain circumstances such as sensitive counter-terrorism cases should exist, as it did even prior to the Patriot Act, but it should be the exception to the rule and not vice versa. The Patriot Act does not strike this balance.

   Another problematic provision allows the government to obtain secret intelligence court orders, without any probable cause linking the target of the order to suspected criminal activity. These orders can mandate the production of any "tangible thing" the government claims is "relevant" to some ongoing foreign intelligence or international terrorism investigation. However, this broad power should be checked by at least a modicum of real judicial review, and bear at least a minimal link to the person whose property or premises is being seized and searched. The act requires neither.

   Not content with exercising the unprecedented broad powers it was awarded in the 2001 Patriot Act, the administration has moved aggressively to obtain even more power. A Son of Patriot Act has been drafted and floated on the Hill, and pieces of it have found their way into other legislative initiatives. The administration has fought vigorously to defeat any moves on the Hill -- even those sponsored by conservative Republicans -- that would in any way limit the Patriot Act; even amendments that would simply scale it back to what the administration said it wanted when the act was proposed.

   Moreover, the administration has been using the Patriot Act to prosecute cases that have nothing whatsoever to do with terrorism. Local corruption, fraud and drug cases have all been the happy recipients of Patriot Act developed evidence.

   Secret evidence, which candidate George W. Bush explicitly opposed in the 2000 campaign, has found resurgence in recent cases. In one case challenging the secrecy pervasive in the Patriot Act, the administration argued that even previously published U.S. Supreme Court decisions should be kept secret! While the federal court ordered the administration to declassify such information, the fact that any U.S. president would make such a claim reveals just how insensitive is this administration to long-standing notions of privacy and civil liberties.

   The term "national security" has become the trump card in the government's possession with which it seeks to squelch any dissent, to hide any misdeeds, and even to prevent its arguments from being made public. Such prophylactic use of the power of the government to conduct national security affairs is deeply troubling. "Breath-taking" is how more than one federal judge has characterized administration efforts along these lines.

   It is a well-known fact of life in Washington that government is always going to be striving to learn more about us. What makes this most recent exercise especially dangerous is the combining of this growth in power over citizens, with a marked effort by the feds to weaken our ability to find out what it is doing.

   In addition to its use of secret evidence, the burgeoning use of data-mining by various government agencies -- with no effective mechanism whereby a citizen might know why his or her name has been red-flagged, or how to have it removed if erroneously placed on such a list -- illustrates the extend of the problem we face.

   Even when caught in mistakes, such as including well-known senators and congressmen on so-called "no-fly" lists, the government makes no effort to correct or alter its drive for more and more information over more and more citizens.

   What the administration is adept at -- like all of its predecessors, Republican and Democrat -- is using crises to increase its budget, its bureaucracies and its powers. But the real problems seem to continue uncorrected. Our borders remain sieves to countless instances of illegal immigration.

   Rather than reducing duplicative bureaucratic layers, the administration proposes more bureaucracy for the intelligence community. We need a single, comprehensive, up-to-date data base of terrorists, suspected terrorists and associates of known terrorists. Yet today, three years after the worst terrorist attacks against the United States in our history, which succeeded in part because we lacked such a data base, we still do not have such a system in place.

   What we do have in place are laws that seek to destroy what precious little privacy law-abiding citizens have left; secret court proceedings that undermine the very foundations of our Bill of Rights; and government "watch lists" that stop average U.S. citizens and well-known members of Congress from getting on airplanes. What's wrong with this picture? Plenty.

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(Bob Barr, R-Ga., a former member of the House Judiciary Committee, served in Congress from 1995 to 2003.)