Columns:: Professor discusses legal ramifications of the USA Patriot Act

since 12/15/98

Columns::February 3, 2003

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Professor discusses legal ramifications of the USA Patriot Act

By Beth Roberts
beth@uga.edu

School of Law professor Donald E. Wilkes Jr. specializes in criminal procedure, capital punishment and post-conviction relief. He spoke with Columns about the legal ramifications of the USA Patriot Act, passed by Congress in response to the terrorist threat.

Columns: I have wondered about the extent of the Patriot Act.

Wilkes: The first thing to understand about the USA Patriot Act is that it was passed in a state of emergency and near-hysteria. There were no hearings, there was no Congressional investigation, it did not go through the scrutinizing process that most proposed laws go through. It did not receive the type of consideration and examination that statutes usually receive. It became a litmus-paper test of whether or not you were a patriot, and if you didn’t vote for it you weren’t a patriot.
The statute contained a number of provisions which the government had been trying to get passed for many, many years, but without success. They simply took this opportunity to insert their wish list of new powers into the statute.
The statute is 181 pages long. It’s about 30,000 words. It has 270 sections. I don’t think that any one person completely understands the statute in its entirety. There have hardly been any decisions by the courts yet.
The statute has a sunset clause. It has a provision which says that the statute expires after five years. However, there are numerous exceptions to the sunset provisions; numerous provisions of the statute will not expire. In my opinion the worst provisions of the statute are those which are not subject to the sunset clause.

Columns: And those are?

Wilkes: For example, there are provisions which now authorize what are called “sneak and peek” search warrants. They authorize law enforcement agents to come to your premises when you’re not present, to make a surreptitious entry into the premises, to search the premises, take photographs, to remove objects and then to depart without your ever knowing they were there. And that statute is not limited to terrorism or terrorist offenses. It can be used for any federal crime, including federal misdemeanors. I think that’s a classic example of the overkill in this statute.

Columns: That provision will not expire?

Wilkes: It is exempted from the sunset provisions. I think a lot of these provisions are going to intrude on everybody’s privacy--in their telephone conversations, in their mail, in their electronic communications--but a lot of the provisions specifically state that the person who is under surveillance is not to become aware of the surveillance and cannot be told of it.

Columns: Do you expect these provisions to be challenged in court?

Wilkes: I expect that many of the provisions of the statute will be challenged in court. However, the United States Supreme Court in recent years has been very unfriendly to claims of individual rights and very deferential to the exercise of government power. And I think there is very little likelihood that the courts will invalidate any of the provisions of this statute.

Columns: You’re suggesting that it will take a political effort to change the law.

Wilkes: The USA Patriot Act greatly expands the power of government--the power to make arrests, the power to imprison persons, the power to conduct searches and seizures, the power to monitor people, the power to spy upon people, the power to infiltrate legitimate organizations. In the end the only option we’re going to have is to persuade Congress to repeal this statute. And that obviously is going to be a while--until some of this atmosphere of excitement resulting from the terrorist attacks subsides.

Columns: What else particularly concerns you about the act?

Wilkes: It greatly expands the concept and the definition of terrorism to include many activities which involve violence but could not reasonably be argued to be terrorism. The statute takes an extremely broad view in its definition of what terrorism is.
This statute shows that the traditional fear that terrorism could result in invasions of individual rights and deprivations of civil liberties is fully justified. The United States is not the only Western democracy where this has happened. Other countries, such as England, have faced terrorism and they have responded by abridging individual rights.

Columns: Is this similar to the way German Americans were treated in World War I or Japanese Americans in World War II?

Wilkes: This statute helps us understand how it happened during World War II that we interned more than 100,000 Japanese Americans. There was an attitude of hysteria, of irrationality, and a perceived enemy to be dealt with by any means. We already in this country have large numbers of persons who have been secretly arrested, secretly imprisoned, secretly detained. Indeed, now we have at least two American citizens who are locked up in military prisons without any charges against them, without any access to the courts, without even being able to consult with an attorney.
In 1942, eight Nazi saboteurs landed in the United States in Nazi submarines to engage in espionage. They were tried by military tribunal, sentenced to death and executed in 1942. We were dealing with Nazis, from a country with whom we were formally at war, and yet no one denied that they had the right to have an attorney, that they had the right to have access to the courts. And yet now, when we don’t even have a declaration of war, the United States government is claiming and exercising the power to arrest American citizens without charges and to hold them secretly and indefinitely without counsel and without access to the courts. In other words, I think that the USA Patriot Act is being used to justify things which cannot be legally justified.

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Columns is produced by the UGA News Service, a unit of UGA Public Affairs.
Beth Roberts: Columns editor, Juliett Dinkins: Columns managing editor,
Janet Beckley: Columns art director. Peter Frey: Columns photo editor

Questions or comments should be directed to columns@uga.edu