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Conservatives and Liberals Agreeing Against Patriot II
"Conservative Backlash"
Dean Schabner - ABC News
March 12, 2004

Some conservative groups are finding common ground with organizations such as the American Civil Liberties Union and the Bill of Rights Defense Committee, expressing concerns about the effect that the USA Patriot Act and a possible follow-up law, the Domestic Security Enhancement Act, could have on civil liberties.

Liberal critics have directed much of their worry at what they saw as an attack on immigrants' rights in the Patriot Act, the massive measure that was passed as the country was reeling from the Sept. 11, 2001, terror attacks.

More than 60 towns, cities and counties around the country have passed resolutions criticizing the act, some going so far as to instruct municipal employees - including police - not to assist federal agents in investigations that they believe violate the Constitution.

Now, right-leaning groups such as the American Conservative Union, the Eagle Forum and Gun Owners of America say they are concerned that American citizens could also be victimized by what they say are unconstitutional law enforcement powers allowed by the Patriot and the potential enhancement act.

The heart of the issue, according to conservatives, liberals and constitutional scholars, is the effect that USA Patriot has already had on issues of probable cause and due process, and that both of those concepts would be further eroded if the so-called Patriot II were adopted as it appears in the draft form.

It would also make it a crime for people subpoenaed in connection with an investigation being carried out under the Patriot Act to alert Congress to any possible abuses committed by federal agents.

There is also no "sunset provision," which constitutional scholars say removes the element of congressional oversight and means lawmakers would have no way of compelling the Justice Department to prove that the powers provided in the act have not been abused.

"There's no question the government has to have the tools to protect us from terror attacks and to prosecute those who want to harm us," ACU Executive Director Stephen Thayer said.

"But having said that, the American Conservative Union wants to be sure that Congress takes into account the civil liberties of the citizens and through their deliberations reaches the proper balance between law enforcement and protecting citizens' rights," he added.

Christopher Pyle, a former U.S. Army intelligence officer who served on the Church Committee, a Senate select committee that studied government intelligence gathering, put it a bit more forcefully.

"I don't think the Fourth Amendment exists anymore," said Pyle, a professor of politics at Mount Holyoke College, referring to the amendment that prohibits unreasonable search and seizure and requires probable cause for a search or arrest. "I think it's been buried by the Patriot Act and some of the court rulings that have been handed down. We need a requiem mass for the Fourth Amendment, because it's gone."

Among the concerns Thayer said he has about the draft version of Patriot II are the broad expansion of surveillance and information-gathering powers, the granting of immunity to businesses and their personnel who provide information to anti-terrorism investigators even if the information is fraudulent, and the power to strip native-born Americans of their citizenship.

Additionally, the powers that would be granted under Patriot II as written in the draft would fundamentally change American society, say scholars and conservative critics of the measure, because the government would be allowed to carry out electronic searches of virtually all information available about an individual without having to show probable cause and without informing the individual that the investigation was being carried out.

"Should the government be allowed to use complex software to find patterns of spending or patterns of activities to find out if someone has been committing illegal acts if there is no probable cause in the first place?" asked Ronald Kahn, a professor of politics and law at Oberlin College. "Patriot I and Patriot II open the door to that, and that means that everybody in the country is under suspicion.

"When you take away the notion of probable cause, everyone is under suspicion," he said.

The only positive thing that many of the measures' opponents see is the breadth of the opposition itself, which they hope will make legislators realize that civil liberties must be protected.

Thayer said he believes that any changes to USA Patriot that are eventually enacted will likely be to bring it more in line with the Constitution, rather than to further expand law enforcement powers, because of the attention that the Domestic Security Enhancement Act has received from both the left and the right.

"The fact that there are so many diverse organizations raising the issue of individual liberty will have an effect on Congress," he said. "The product they agree on will be better for it."

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