Fierce Fight Over Secrecy, Scope of Law

By Amy Goldstein
Washington Post Staff Writer
Monday, September 8, 2003

In Seattle, the public library printed 3,000 bookmarks to alert patrons that the FBI could, in the name of national security, seek permission from a secret federal court to inspect their reading and computer records -- and prohibit librarians from revealing that a search had taken place.

In suburban Boston, a state legislator was stunned to discover last spring that her bank had blocked a $300 wire transfer because she is married to a naturalized U.S. citizen named Nasir Khan.

And in Hillsboro, Ore., Police Chief Ron Louie has ordered his officers to refuse to assist any federal terrorism investigations that his department believes violate state law or constitutional rights.

As the second anniversary of the Sept. 11, 2001, attacks approaches, the Bush administration's war on terror has produced a secondary battle: fierce struggles in Congress, the courts and communities such as these over how the war on terror should be carried out. At the heart of this debate is the USA Patriot Act, the law signed by President Bush 45 days after the terror strikes that enhanced the executive branch's powers to conduct surveillance, search for money-laundering, share intelligence with criminal prosecutors and charge suspected terrorists with crimes.

Yet the paradox of this debate is that it is playing out in a near-total information vacuum: By its very terms, the Patriot Act hides information about how its most contentious aspects are used, allowing investigations to be authorized and conducted under greater secrecy.

As a result, critics ranging from the liberal American Civil Liberties Union to the conservative Eagle Forum complain that the law is violating people's rights but acknowledge that they cannot cite specific instances of abuse.

"The problem is, we don't know how [the law] has been used," said David Cole, a Georgetown University law professor who has represented terror suspects in cases in which the government has employed secret evidence. "They set it up in such a way . . . [that] it's very hard to judge."

Attorney General John D. Ashcroft and other supporters of the law assert that the act is crucial to allowing the government to fulfill its anti-terror responsibilities, but they say little about how it accomplishes those tasks. Justice officials praise their newfound ability to share information from foreign intelligence operations with criminal investigators, allowing them to more swiftly disrupt potential terrorist acts before they occur.

Ashcroft also insists that the law has not gone far enough, while an unlikely alliance on the ideological left and the right insists that it has trampled civil liberties and must be curtailed.

This summer, two major lawsuits were filed challenging the Patriot Act's central provisions. The Republican-led House startled the administration in July by voting to halt funding for a part of the law that allows more delays in notifying people about searches of their records or belongings. And the GOP chairmen of the two congressional committees that oversee the Justice Department have warned Ashcroft that they will resist any effort, for now, to strengthen the law.

Viet D. Dinh, a former assistant attorney general who drafted much of the law, said the debate over its merits is constructive. He said the government is gravitating now from "the sprint stage" to the "marathon phase" of confronting terrorism.

"Somewhere in this marketplace of ideas, of truths and half-truths, of fact and spin, we get a . . . picture of what the [Justice] Department should be doing," Dinh said. "The debate is healthy to establish the rules of this continuing path toward safety."

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