Lawmakers and legislative aides were lining up for nasal swabs and Cipro. Yellow police tape encircled the Hart Senate Office Building. The House had shut down for the first time in memory. On October 17, the capital was confronting a new threat: anthrax. It was contained in a letter mailed to Daschle, and no one knew how many people might have been exposed. Were there more letters? Were anthrax spores floating through the Capitol's ventilation system? Suddenly, it became more urgent than ever to get the Patriot Act to the president's desk.
Amid the panic, Leahy, Daschle, Flanigan, Dinh, and others gathered in House Speaker Dennis Hastert's office to smooth out the differences between the Senate and House versions of the bill. The House bill, which had passed in the early morning hours of October 12, included sunset and court oversight provisions Leahy had been unable to get in the Senate. There was no longer any question that the Patriot Act would include some court oversight, though not as much as Leahy and Armey wanted. The key issue remaining for those in Hastert's office was how long the new law should be in effect. Leahy and Armey pressed for a two-year "sunset," which would force the White House to win congressional approval of the most controversial provisions of the law all over again in 2005. The administration wanted no time limit but eventually agreed on four years.
Sunset in 2005.
The USA Patriot Act powers went far beyond what even the most ardent law enforcement supporters had considered politically possible before the attacks. And the government moved quickly to take full advantage of both the new and existing authorities. In the first year alone, more than a thousand noncitizens were detained without being charged, and their identities were kept secret. Thousands of Muslim men -- citizens and noncitizens -- and others were placed under surveillance by federal investigators across the country. Their movements, telephone calls, email, Internet use, and credit card charges were scrutinized around the clock -- a technology-driven campaign that has resulted in criminal charges against eighteen suspected al-Qaeda operatives in or near Seattle, Detroit, Buffalo, New York, and Portland, Oregon. "We've neutralized a suspected terrorist cell within our borders," Ashcroft announced near the first anniversary of the terror attacks at a press conference about the indictments of six people in Portland charged with conspiring to aid al-Qaeda and the Taliban regime in Afghanistan. He called the indictments "a defining day in America's war against terrorism." In 2003, the government, for the first time, asked for more secret wiretap warrants for terrorism investigations than for criminal cases. The FBI said it got more than 1,700 Foreign Intelligence Surveillance Court warrants, while federal and state courts endorsed some 1,442 warrants for electronic surveillance in other kinds of cases. Outside law enforcement circles, no one will ever know who was targeted by those FISA warrants. Thousands of men, women, and children had been detained and searched at airports, most of them innocent people whose names sounded similar to suspects on computer watch lists or who showed some sign of threat. College students were questioned by law enforcement and intelligence officials for associating with certain campus seminars.
Many people, including some lawmakers and some judges, came to believe the Patriot Act went too far. Judge Gladys Kessler of the U.S. District Court for the District of Columbia, for instance, ruled in 2002 that the government overstepped its constitutional bounds by refusing to give the names of more than twelve hundred people detained since September 11, many of them initially on immigration charges. In response to a lawsuit by civil libertarians, Judge Kessler ordered the Justice Department to release the names, saying that without the information it was impossible to know whether the government is "operating within the bounds of the law." Kessler's ruling was overturned by an appeals court in June 2003, after the government argued that the secrecy was necessary to avoid compromising its investigation into September 11 and future terror plots. The Justice Department also challenged a decision by the FISA court not to grant criminal investigators the authority to use FISA primarily for criminal prosecutions. The FISA court said in 2002 that, long before September 11, the government had misused the law and misled the court dozens of times in its requests for search warrants and wiretaps. Those warrants and wiretaps might not have been granted in criminal courts, which, unlike FISA, require evidence of probable cause. And if the FISA court wouldn't let criminal investigators make wide use of FISA powers, the Patriot Act would provide as much investigative muscle as the administration wants.
Near the end of 2003, Ashcroft extolled what he thought of as the Patriot Act's virtues during a public tour in support of the law. In lower Manhattan, Ashcroft appeared at Federal Hall, where George Washington took the oath as the nation's first president. The attorney general was surrounded by police and prosecutors and American flags. "At times I doubted America could make it still safe, still secure today. We have had two years of safety, a sign of blessing, a sign of God's grace upon this nation and its people that we have had 728 days of safety is second a testament to you, the men and women of our nation who guard our borders, patrol our streets and enforce our laws," he said over the hum created by thousands of protesters outside.
"Freedom is not self-sustaining. It is not automatic and the security that ensures liberty does not come without effort. For two years you have expended that effort, preserving our security, protecting our liberty. All of us owe you a debt that cannot be repaid. We learned the painful lessons of 9/11. "We once had a culture of law enforcement that inhibited and prevented communication and coordination. We have constructed a new spirit of justice. We've built America's defense, the defense of life and liberty upon a foundation of prevention, nurtured by cooperation, built on coordination and communication and rooted in our constitutional liberties. 9/11 taught us that terrorists had outflanked law enforcement in technology, communications and information. So we have fought for the tools necessary to protect the lives and liberties of the American people. Congress provided these tools in the USA Patriot Act passed overwhelmingly by bipartisan majority: 98 to 1 in the US Senate and better than a five to one ratio in the House.
"Our job is not finished," Ashcroft added, "but we have used the tools provided in the Patriot Act to fulfill our first responsibility, that of protecting Americans. We have used these tools to prevent terrorists from unleashing more death on our soil. We have used these tools to save innocent American lives."
As with other claims by Bush administration officials, Ashcroft offered few particulars. He was, in essence, asking us to accept his assertions on faith.
Long after its approval, Viet Dinh said he was proud of the Patriot Act and his role in creating it. He believed the law made Americans safer, just as intended. He dismisses criticism that Justice was using a heavy hand in its investigations, and that civil liberties were being compromised. While the government can examine the lives of Americans as never before, he says, the Constitution is always there as a safeguard. "It was very clear that we did not tell the American people just simply trust us, trust law enforcement not to overstep their bounds. Rather we say, trust the law," Dinh said. "The attorney general said very clearly, 'Think outside the box, but not outside the Constitution.'" But Dinh, who returned to life as a law professor at Georgetown University, noted that the effort to protect Americans relies substantially on private information brokers and other technology companies. He knows those companies face little of the oversight of government agencies. "The amount of information publicly available to businesses is mind-boggling. It really belies the notion that each of us has an expectation to be left alone. So many people know about what we do," said Dinh, sitting in his law school office not far from where he oversaw the drafting of the Patriot Act. "The leap in technology has not been met with a proportionate response in terms of how we think of this technology. We need to think more creatively. Not put the genie back in the bottle, but make the most use of it. Like most technology, it's mixed use. It could be put to good or bad use."
The situation seems far more dire to Jim Dempsey, who since the Patriot Act's approval was named director of the Center for Democracy and Technology. Though he maintains the government needs to use information technology to protect the country, he describes the efforts by the government to make the most of personal data and the Patriot Act since 2001 as the beginning of unprecedented intrusion into American life. In 2005, Dempsey said, he will be pressing hard to curb the Patriot Act authorities. "It's an electronic door-to-door search," Dempsey said. "You can't physically go door to door or stop every car on the highway. But now we have the [ability] to do it unbeknownst to the people. Now it can be done electronically and constantly."
Senator Leahy is convinced the Justice Department and FBI have overreached in their efforts to identify and apprehend terrorists. And like Dinh, he began to worry about the role of the private companies, their monitoring capabilities and their expanding partnership with the government.
"The temptation will be more and more -- especially in a polarized society and a society where there is a fear, whether it's the Red Scare in the fifties or terrorism in this century -- to use those databanks," he said, sitting at the same table in his office where he negotiated portions of the Patriot Act with Ashcroft. "At some point it doesn't matter if they're private or public, at some point they will be used by the government to determine who is a good American and who is a bad American. Not determined through prosecution, trial, but based on what came up on someone's computer screen."
Excerpted from "No Place to Hide" by Robert O'Harrow, Copyright 2005.
