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Patriot Act Eroding Our Freedoms, Barr Charges

R. Robin McDonald

rmcdonald@amlaw.com

Former U.S. Rep. Robert L. Barr Jr. calls the USA Patriot Act a "systematic dismantling of the Fourth Amendment of the U.S. Constitution."

It is "a fundamental shift in the constitutional law in this country," said the former congressman from Cobb County, now a radio commentator and a Jasper attorney.

Last week-in the second high-profile Atlanta debate within five days on the law that has vastly expanded the powers of the country's law enforcement agencies, Barr warned, "If we do not put some brakes on this freight train … we will wake up one day and find we have no privacy."

Barr made those comments as part of a panel that debated the Patriot Act for more than two hours at Georgia Tech to a packed lecture hall that was often rocked by cheers and jeers. The debate was sponsored jointly by the Atlanta Press Club and Georgia Tech's Internet & Public Policy Project. Moderator Hans Klein, an associate professor at Georgia Tech's School of Public Policy, posed the question at the heart of the current national debate over the Patriot Act: In passing the act, has Congress traded liberty for security?

Patriot Act Defended

Randy S. Chartash, an assistant U.S. attorney for the Northern District of Georgia and deputy chief of the office's financial crimes unit, defended the Patriot Act, telling those present that if they actually read the voluminous law they would find that it is not as invasive as opponents portray it.

Other panelists included former Atlanta City Councilman Jabari Simama, now executive director of the Mayor's Office of Community Technology; Ann Woolner, a national legal affairs columnist for Bloomberg News; and John Sugg, senior editor of Creative Loafing.

Chartash, a career prosecutor who has worked for four presidential administrations, argued that despite claims that the Patriot Act has placed the country "on the slippery slope to tyranny, that is not the case."

He was quick to distinguish the Patriot Act from the government's other actions allowing military tribunals, detention of enemy combatants and proposed access to a vast array of databases that warehouse information on private citizens. Echoing comments made earlier in the week to the Bleckley Inn of Court by U.S. Deputy Assistant Attorney General John G. Malcolm, Chartash said the Patriot Act merely removes legal barriers for federal intelligence agencies and law enforcement agencies to share information. (Daily Report, Nov. 19, 2003)

That "Chinese wall" between intelligence and law enforcement was established by Congress more than 25 years ago following revelations that federal investigative agencies had spied on anti-war protesters and participants in the civil rights movement, foremost among them Martin Luther King Jr. That ban on intragovernmental information-sharing has turned out to be "a disaster," Chartash said.

For example, Chartash explained, during the investigation of the 1993 truck bombing of the World Trade Center in New York, federal prosecutors talked to foreign witnesses, gathered information from other nations, and recruited an al Qaeda informant. But they "could not go around the corner and talk to the FBI's intelligence agents who were investigating the same thing," Chartash said.

The Patriot Act removed those barriers, he said. It also has permitted the government to move into the 21st century so that technological advances no longer will outstrip the government's ability to investigate suspected criminals. For example, Chartash said the act now permits "roving wiretaps," which are attached to a person rather than an individual phone. Drug dealers, he said, were buying disposable cellular phones in bulk to conduct business and circumvent wiretaps, he said.

Chartash said federal prosecutors also may obtain warrants in one jurisdiction that allow them to conduct searches in other jurisdictions. Such authority is necessary in an age where a computer server in another state may contain vital information, he said.

Chartash insisted that the government "has to go through very, very rigorous procedures" in securing Patriot Act warrants from federal judges. And, he added, "To date, no court has ever held any aspect of the Patriot Act unconstitutional."

Law Called 'Power Grab'

But Barr insisted that passage of the Patriot Act was less about fighting terrorism than it was about a power grab by law enforcement authorities. His "Bob Barr's Laws of the Universe" includes the adage, "No matter how much power the government has, it always wants more."

The Sept. 11 terrorist attacks could have been thwarted using existing laws, Barr argued. But instead of promising to "do a better job of using those laws," Barr said federal investigators and prosecutors sought more powers that they are now using in cases that have nothing to do with terrorism.

Tools such as "sneak-and-peek warrants," which allow investigators to enter a private residence or business and "look around" without immediately notifying the owners, and roving wiretaps have been sought by the FBI in the past and soundly rejected by Congress, he said.

Now, federal prosecutors and investigators are seeking even more investigative power in a new version of the Patriot Act, Barr warned, in proposed legislation he dubbed "Son of Patriot."

"It would take your breath away … if you really understood what the government was seeking here," he said. "Patriot II seeks to strip citizens of this country of their citizenship," he said. A separate intelligence authorization bill already has expanded the circumstances under which subpoenas can be authorized by investigating agencies without judicial oversight, he added.

"What all these approaches call for, and allow the government to do, is gather evidence on individuals against whom they have no evidence at all," Barr insisted. "That is what allows the government to invade your privacy with no probable cause that you have done something wrong."

Chartash countered that the changes in federal investigative powers generated by the Patriot Act are really modest and require more, not less, judicial oversight. But Barr labeled the prosecutor's argument as "the Alice in Wonderland approach the government uses."

What the Patriot Act has done, Barr argued, is reduce judicial oversight. In the past, to secure a "sneak-and-peek warrant, he said, "You had to show exigent circumstances. … But that wasn't good enough for them. They wanted to do it routinely." In response to Chartash's insistence that citizens who were the target of such searches still could argue before a judge whether they were unconstitutional, Barr countered, "If you don't know the government has been there, you have no way to assert your rights under the Fourth Amendment."

Barr also suggested that since Sept. 11, judicial oversight has been nothing more than "a rubber stamp."

"When the government goes to a judge and says, 'This will help us in a terrorist investigation,'… a judge under the Patriot Act cannot ask any questions of the government," Barr said. "The court has to grant it. I don't think even Randy can argue with a straight face that is meaningful oversight."

"That's not been my experience," Chartash insisted. "I've been in many courts, and many judges ask question after question. There is nothing in the Patriot Act that says they are stopped from asking questions." And, he added, federal judges "will bristle at the notion they are rubber stamps."

Two Key Questions

Simama raised two questions at the heart of the debate. Simama's job entails working with homeland security issues involving technology, including the growing use of video surveillance as a substitute for police patrols. Those cameras installed to record crime also record lawful activities, he said. "How do we draw the line between what technology to deploy and what not to deploy?"

Simama also asked Chartash, "How can you convince many minorities… who saw moderate leaders such as Martin Luther King Jr., Jesse Jackson, and Dick Gregory come under intense scrutiny" during the civil rights movement, decades before the passage of the Patriot Act, "How can you tell them the Patriot Act will not circumvent civil liberties?"

Barr said concern over the Patriot Act has prompted "a historic coming together of the [political] right and the left, which traditionally vehemently disagree on issues. … The right and the left agree that our civil liberties are very much at stake here."

Such debate, he said, "is very American. It's not unpatriotic."

Asked by Professor Klein if heightened security measures codified in the Patriot Act were appropriate in response to the threat of another terrorist attack, Barr pronounced, "Absolutely not," to loud applause. "It's never OK" to give up constitutional freedoms, he said. [end]

Rachel Ramos contributed to this article. Her e-mail address is rramos@amlaw.com