Question: When is a controversial law no problem whatsoever?
Answer: When no one is enforcing it.
Although oversimplified, that essentially sums up much of the government’s defense in a case involving the so-called USA PATRIOT Act.
The U.S. government is hoping for a first-round knockout in a court fight over the constitutionality of a key provision in the act, which was rushed through Congress amid anti-terrorist fervor after the Sept. 11 attacks.
Six groups, including the Muslim Community Association of Ann Arbor and the Dearborn-based Arab Community Center for Economic and Social Services, filed suit in federal court, claiming that Section 215 of the act is unconstitutional.
Among other things, that section of the act allows the government to “order charities, political organizations, libraries, hospitals, Internet Service Providers, or indeed any person or entity to turn over the records or personal belongings of others,” allege ACLU lawyers in court filings.
“The FBI is not required to show probable cause — or any reason — to believe that the target of the order is a criminal suspect or a foreign agent,” assert ACLU lawyers.
“This is a very important case,” says Kary Moss, executive director of the ACLU of Michigan.
For one thing, it is the first lawsuit challenging any aspect of the PATRIOT Act.
In asking U.S. District Court Judge Denise Page Hood to dismiss the case, the government makes an interesting argument, saying, in part, that the plaintiffs have no basis to challenge Section 215 because it hasn’t yet been used.
“… as the Attorney General recently disclosed, the Justice Department, including the FBI, recognizing the need for judicious use its law enforcement tools, has never sought a Section 215 order — with respect to these plaintiffs or anyone else for that matter,” contend government attorneys representing U.S. Attorney General John Ashcroft and FBI Director Robert Mueller in the civil suit.
Given that fact, it is ironic that, less than a month after the Sept. 11 attacks, Ashcroft was berating Democrats in Congress for not acting quickly enough to pass the act. “We need the tools to fight terrorism,” Ashcroft told talk show host Larry King. “Talk won’t prevail against terrorism.”
Attorneys for the ACLU argue that it is not necessary for the government to actually be conducting Section 215 searches for the law to have a negative impact. Affidavits from plaintiffs claim that Arab-Americans and other Muslims living in the United States have already curtailed legal activities.
“Section 215 has caused some of plaintiffs’ members and clients to be inhibited from publicly expressing their political views, attending mosque and practicing their religion, participating in public debate, engaging in political activity, associating with legitimate political and religious organizations, exercising candor in private conversations, researching sensitive political and religious topics, visiting particular websites, and otherwise engaging in activity that is protect by the First Amendment of the United States Constitution,” claim ACLU attorneys.
Professor Robert Sedler, a specialist in constitutional law at Wayne State University who has reviewed affidavits filed by plaintiffs, says their claims the law is having a chilling effect “is pretty strong.”
If the judge agrees, then the case will move forward.
If not, Ashcroft and crew still might not have much cause to celebrate.
“If the government wins this case, it will only be because they haven’t used this law,” says Sedler. “But as soon as they do, somebody will have standing to challenge it.”
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