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ABA Committee Sponsors Effort to Sort Out Issues Over Patriot Act Reauthorization

Posted Sep 29, 2005 3:25 AM CDT
By Terry Carter

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At times, it seemed as if some congressional committee hearings on sunset provisions in the USA Patriot Act of 2001 were devolving into public discourse as professional wrestling. Nearby, meanwhile, an actual, reasoned debate broke out.

“You’d be hard-pressed to get a better statement on each side of the argument, fleshed out evenhandedly,” says one debate participant, former federal prosecutor Andrew C. McCarthy, admittedly conservative and hard-wired for national security.

And this from another participant, Georgetown University law professor David Cole, who comes from the left and litigates for civil liberties: “It’s probably the only serious attempt to develop serious pro and con arguments, while most of what’s written or said on the Patriot Act comes from one side or the other and talks past the other side.” They’re talking about Patriot Debates, a project of the ABA Standing Committee on Law and National Security. The committee brought together an A-list of thinkers and doers on terrorism and security to sort through 16 provisions of the Patriot Act scheduled to expire on Dec. 31 unless reauthorized.

Rights Issues at Forefront

Congress adopted the Patriot Act after the Sept. 11, 2001, terrorist attacks to expand and enhance law enforcement tools for dealing with terrorism. But critics argue that some provisions have led to violations in the areas of privacy, free speech and human rights. “The striking thing over the past few years is that there has been much more heat than light on the Patriot Act,” says committee chair Stewart A. Baker of Washington, D.C. “We’ve forced our debaters to drill down such that you can’t get away with bumper sticker arguments. They couldn’t get cute because they knew there was a reply brief coming, followed by rebuttal.”

The committee has sponsored live programs and postings on a source blog, called Patriot Debates, over the past several months. In May, the committee published a book, Patriot Debates, a compilation of point-counterpoint essays, rebuttals and final words regarding the sunset provisions in the Patriot Act. (The book may be ordered at www.ababooks.org.)

The debates grew with postings on the blog as the process for the book was under way. “That helped us attract people during the middle of the debate, and we know we were getting a lot of hits from Congress,” Baker says.

“A number of us have testified before Congress on these issues, and I know that at least one Hill staffer found me for that through the [source blog],” says Peter P. Swire, a law professor at Ohio State University.

Swire wrote about the Patriot Act’s so-called library provision that authorizes the FBI, with an order from a special court, to require any business or other entity to provide records or “tangible things” pertinent to an intelligence investigation. The provision has been interpreted to include library records.

In May, several participants engaged in live debate at the National Press Club in Washington, and Baker says he expects some of them to take part in other Patriot Debates around the country in the coming months.

As those debates unfold, it’s becoming apparent that many of the sunset provisions “are nowhere near as controversial as the act’s press coverage might suggest,” write Baker and John J. Kavanagh in their editors’ introduction to the book. Ultimately, they suggest, what Congress does with the Patriot Act is likely to be “spurred not by the sunset requirement but by a general desire to clean up some of the loose ends in the legal war on terror now that we have 3 1⁄2 years of struggle behind us.”

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