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The [Tuesday] Papers

"Most of the [Patriot Act's] provisions involve modest changes in existing law that are hardly novel in theory or in practice, and many of its most controversial provisions - such as the ability of investigators in terrorism cases to obtain library records after receiving judicial approval - have yet to be used," former U.S. attorney Patrick Fitzgerald wrote in the Tribune in 2003.

How quaint.

Fitzgerald became one of the more persuasive supporters of the Patriot Act, though his chief concern was the way the legislation knocked down walls between intelligence agencies such as the CIA and FBI that had been erected to, um, protect civil liberties.

But, as unbelievable as it seems today, Fitzgerald (and a mayor named Richard M. Daley) was not able to convince the city council of his position; instead, the council actually passed a resolution back then against the Patriot Act by a vote of 37-7.

"Although lone Republican Ald. Brian Doherty (41st) called the resolution 'nothing but an innocuous piece of rhetoric formulated to embarrass our present administration,' concern over various provisions in the Patriot Act goes far beyond Chicago Democrats," Cate Plys wrote for the Tribune back then.

"It's a giant, 342-page piece of legislation expanding the federal government's powers in areas like wiretaps, searches and detaining aliens, passed just 45 days after Sept. 11, 2001.

"That didn't leave much time for the original debate. The act supposedly only empowers the government to fight terrorism, but civil rights groups complained from the start that it unnecessarily tramples fundamental liberties.

"Those complaints have gained so much steam that U.S. Atty. Gen. John Ashcroft toured the country last month trying to spiff up the act's image as the Bush administration begins lobbying Congress to expand government powers further in a Patriot Act II.

"In July, even the Republican-majority House of Representatives voted 309-188 to prohibit funding for a controversial section of the act authorizing 'sneak-and-peek' searches, in which government agents may conduct searches secretly.

"Such searches were previously done by court order, says American Civil Liberties Union legislative counsel Timothy Edgar, but the Patriot Act put it into federal law using the most lenient standards, such as not setting a deadline for post-search notification.

"Is the act as complex as Fitzgerald insists? Sure. All the more reason for Congress to give it another good hard look."

Abner Mikva thought so too.

A 2003 Sun-Times report by Abdon Pallasch:

The U.S.A. Patriot Act , passed a month after the Sept. 11, 2001, attacks, is making us into the Police State of America, a former federal judge and three other critics of the act charged last week.

Nonsense, said Patrick Fitzgerald , the crime-busting, terrorist-fighting U.S. attorney for the Northern District of Illinois - it's just a common-sense measure to let law enforcement agencies communicate with each other and keep us all alive in an age of terrorism.

Fitzgerald took on retired judge and former Clinton White House Counsel Abner Mikva, a former hard-charging civil libertarian congressman from Chicago, in a debate last week at the Harold Washington Library over whether the Patriot Act was making us safer or just less free.

"The U.S.A. Patriot Act is a way for the government to get information," Fitzgerald said. "I investigated Osama bin Laden in 1996. We were walled off. The guys in the criminal investigation couldn't talk to the intelligence team. We talked to the New York City Police Department and the special FBI agents allowed to work with us. We could talk to people overseas. I went to foreign police. I talked to foreign intelligence agencies, the CIA. I even got to talk to al-Qaeda. Who could I not talk to? I could not talk to the FBI agent in charge of the bin Laden case across the street. That is warped. That is bizarre. That is dysfunctional. The Patriot Act fixed that."

Mikva said the Patriot Act was hardly so innocuous.

"It's a 342-page bill that changes our immigration laws, privacy laws, security, detention, the entire way the federal government treats its people," Mikva said.

The U.S.A. Patriot Act is actually an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." Mikva described it as a grab bag of civil liberties-defying requests from federal prosecutors that he had rejected during the Clinton years.

"I was at the White House in 1995, and we were able to get some of the worst provisions excluded from the 1995 act , and they were just dumped wholesale into the Patriot Act ," Mikva said.

Fitzgerald said the Patriot Act gets blamed for everything the government has done since Sept. 11, 2001, to combat terrorism, such as detaining 1,200 illegal immigrants and the "enemy combatants" captured in Afghanistan at Guantanamo Bay. Those things were all done under existing law, he said.

"The number of detentions under the Patriot Act is zero," Fitzgerald said.

The Patriot Act does allow prosecutors across the country to avail themselves of the Foreign Intelligence Surveillance Act or "FISA Court," a secret court in Washington, D.C., created during the Cold War "that has turned down one request since it has been in existence," Mikva said.

"It allows sneak peeks," he added. "They can enter your house without any warrant and not tell you about it for some time afterwards. And it's not limited to terrorism--any case in which 'a prior warning would jeopardize the investigation or have an adverse affect.'"

Fitzgerald said he has not availed himself of the FISA Court since becoming U.S. attorney because existing laws and courts have been enough. He said Mikva exaggerated the court's power and deference to prosecutors.

"You make it sound like the judges, when they hear 'FISA,' want to give us everything we want," Fitzgerald said to Mikva.

"Yes!" Mikva shouted.

"They don't," Fitzgerald said. "People are so conservative, and you can't understand this, in the Department of Justice, they are so conservative - they never brought [a case] they thought they might lose."

Representatives of the American Library Association, the Arab-American Bar Association and a Japanese-American Cook County judge whose family was interned by the United States during World War II also joined the debate to share their concerns about the Patriot Act.

Two years later, in 2005, Pallasch filed this report:

That loud "Shhhhh!" you hear Monday may be the sound of 25,000 librarians reacting to U.S. Attorney Patrick Fitzgerald 's defense of the government's right to confiscate people's library records.

Fitzgerald , like many U.S. attorneys around the country, has become a roving defender of the USA Patriot Act and its most controversial provision allowing federal investigators to seize people's library records.

Chief among the critics of that provision, passed in the nervous days after 9/11, is the American Library Association, which is meeting in Chicago this weekend.

Fitzgerald has volunteered to take his campaign for renewal right into the heart of the opposition Monday, debating Colleen Connell, director of the Chicago office of the American Civil Liberties Union, which takes the librarians' side.

"Do we really want to create a safe haven where you tell a terrorist the one place you can go in America and know you won't be investigated, where someone will wipe the computer clean when you're done with it, would be a library?" Fitzgerald said at another Patriot Act debate Tuesday. "In fact, the Sept. 11 hijackers were reported to have visited a library . . . as recently as 11 days before the attacks."

Ken Wainstein, the U.S. attorney for the District of Columbia, told a House of Representatives committee in April that on Aug. 30, 2001, the Internet accounts of 9/11 hijackers Nawaf Alhazmi and Khalid Almihdhar were used at a public access computer in an unnamed state college in New Jersey to review the airline tickets they had ordered for American Airlines Flight 77, which they flew into the Pentagon.

A witness told federal investigators that men matching the descriptions of three other hijackers used a public computer at the Delray Beach, Fla., Public Library that July, Wainstein said.

So what? asks Michael Gorman, president-elect of the American Library Association.

"It's the crime that's the problem, not using library computers. That just seems completely absurd," Gorman said. "The American Library Association's bill of rights says you are entitled to confidentiality and privacy in your use of libraries. We don't keep records on what you read and the Internet connections you make. We believe that's part of democracy."

Again, what seemed menacing then seems quaint now - to our shame.

In 2011, the Tribune took a look back and noted that "When the Patriot Act passed in 2001, civil libertarians and privacy advocates raised concerns that it would expand government powers too much and threaten civil liberties.

"Fitzgerald said he believed some opponents were mixed up over what the law would accomplish."

I wonder, though, if Fitzgerald originally contemplated that the Patriot Act would be used the way it would come to be; the legislation's Republican author certainly didn't.

So instead of legislative intent, we have lawyers inventing interpretations to fit the desires of the executive branch. That's what's Nixonian - that when the president does it, it's not illegal. Except that Nixon acted by fiat. Now our presidents have the Justice Department make it all legal-like by simply writing memos re-imagining what laws mean.

It reminds me of how a former colleague once described corporate law to me. Say your company wants to build a cell tower - or drill for oil - in a particular location. Your job as a corporate lawyer isn't to determine whether it's legal, it's to find a way to interpret the law to make it legal.

Now imagine that instead of cell towers we're talking about civil liberties - well, you don't have to imagine because that's where we're at.

Even worse, in the case of our civil liberties the new interpretation of laws and the court to which they are presented are both secret.

Which is a long way of introducing you to Remember When The Patriot Act Debate Was All About Library Records?

Hawks Not Hungry Enough
Hey, that's not just us talking, it's also what Jonathan Toews says.

24 Hours With Prism
The TV channel, not the NSA program.


The Beachwood Tip Line: Act patriotically.


Posted on June 18, 2013

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