| 3/14/2005 3:00:00 PM | Email this article • Print this article | |
| “At what point can you limit speech and association? People will, in fact, muzzle themselves. There’s this whole chilling effect.
- Susan Herman
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Speakers differ on Patriot Act’s impact on civil liberties
By: Jenny Jones
Courier Staff Writer
The USA Patriot Act increases the government’s power, but how that power affects civil liberties is debatable. The first two lecturers of Hanover College’s “American Security, American Liberty and the Patriot Act” presented different sides of the issue Sunday.
John Yoo, a professor of law at the University of California at Berkeley and the first speaker of the symposium, said the Patriot Act only modifies provisions that were already in place, and the implications it has on civil liberties is modest. Susan Herman, a professor of law at the Brooklyn Law School and the second speaker of the series, disagreed. She said the Patriot Act is too mysterious to know what effect it is having on civil liberties, causing a “chilling effect” among American people.
Yoo and Herman were part of a series that was to continue this afternoon with a round table discussion. Two more lectures will take place this evening.
John Ahrens, a professor of philosophy at Hanover College, will examine “Land of the Free? Home of the Brave?” at 4 p.m. in Room 102 of the Horner Center. Paul Rosenzweig, a senior research fellow at the Center for Legal and Judicial Studies at the Heritage Foundation in Washington, give his lecture “Privacy as Consequence: Policy Conceptions for a Post 9/11 World” at 8 p.m.
Yoo began his lecture by examining whether the Sept. 11 attacks should be characterized as crimes or war. Yoo said there’s no doubt that the attacks should be considered war and gave four factors to support his claim: The source of the attacks, the purpose of the attacks, the level of violence involved in the attacks and the resources needed to protect the country.
Yoo said that because the attacks were conducted by a foreign regime that intended to achieve political outcomes through extremely violent military-style attacks, Sept. 11 can only be considered a war. Crimes, he said, are usually committed with a lower level of violence by domestic criminals who want to make money.
Another reason the Sept. 11 attacks should be considered war, Yoo said, is because of the type of resources needed to fight the attackers. It became apparent that the criminal justice system could not fight the terrorists and that military force had to be used, he said.
Using military force is appropriate when fighting terrorism because the government is trying to prevent future attacks, Yoo said. The government is not trying to punish al-Qaida for the attacks, he said. Rather, it is trying to prevent more attacks.
In order to prevent attacks and to fight the war on terrorism in this modern age, Yoo said it was necessary for the government to pass the Patriot Act in order to make changes to the Foreign Intelligence Surveillance Act. The act was created in the 1970s to create secret courts that could issue secret warrants for wiretaps and searches.
The Patriot Act modernizes the intelligence act to make it easier for the government to follow people geographically, Yoo said. Instead of having to get a warrant for every tap into a person’s means of communication — cellular phones, Internet service providers — the government can now get one warrant that allows it to tap into all forms of communication no matter where the suspect it located, he said.
Yoo said the Patriot Act doesn’t make any significant changes because the government has always been able to place wire taps on phones and perform physical searches of people through the intelligence act. The Patriot Act is only extending those powers to keep up with modern means of communication and technology, he said.
The Patriot Act is “really just another effort to reduce paper work on behalf of the justice system,” Yoo said. “I think the (changes the Patriot Act makes) are modest.”
When it comes to collecting tangible information, such as library records and computer hard drives, Yoo said it is important for the government to have access to that type of information to prevent attacks.
The government figured out how the attacks happened through this type of information, so why not use it to prevent future attacks? Yoo asked.
“All these provisions are expansions of the government’s power. ... The question is, are they reasonable?” he said. “The government’s power has been expanded and civil liberties have been reduced, but it seems far more modest” than it could be.
Herman had a different view of the Patriot Act. She began her lecture by stating that most people cannot determine how the Patriot Act is affecting civil liberties because no one knows how the act is being implemented.
People don’t know whom the government is watching and what information it is surveying, Herman said. Without knowing, people are afraid to use the Internet, they are afraid to attend mosques and they are afraid to check out books from the library for fear that they might be targeted, she said.
“At what point can you limit speech and association?” Herman asked. “People will, in fact, muzzle themselves. There’s this whole chilling effect.”
Herman cited a case where a student was researching information for a paper on the Boulder Dam. In doing so, the student visited several Web sites about the construction of dams. Before he knew it, the police were at his door questioning why he was researching dam construction, she said. The student had become a suspected terrorist.
The question, Herman said, is whether this type of government surveillance invades Fourth Amendment rights. The Fourth Amendment says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Herman said the Patriot Act diminishes the Fourth Amendment by weakening the checks and balances within the government. It gives the executive branch, the president, too much power to receive warrants for searches without having to tell the courts why it wants to conduct a search or what it hopes to obtain, she said.
“It looks like business as usual because you have to get a court order” to conduct searches, but the checks and balances are not there, Herman said.
Without checks and balances, no one knows what the government is doing or how it is using the information it collects, Herman said. “The basic idea to me is if you don’t have checks and balances, you don’t know” if there is abuse of the power, she said.
Because people do not know if there is an abuse of power, Herman said, they have to be skeptical. “The law is mysterious,” she said. “We don’t know, and we can’t know how these powers are being implemented.”
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