The USA Patriot Act passed after last fall’s terrorist attacks could help protect the country from terrorism or destroy its most valued freedoms, said two legal experts debating Tuesday at the University’s Law School.
Rick Morgan, formerly of the U.S. Attorney’s Office – now a lawyer with Bowman & Brooke in Minneapolis – said the USA Patriot Act does not destroy constitutional liberties.
“We have a situation where under our Constitution, it is designed that the executive comes to the fore,” he said.
Morgan also said the act is needed to confront the threat of “Islamic fascism.”
“Make no mistake – there has been a dramatic change in atmosphere. We are at war,” he said. “We have a situation where our opponents are using our society’s openness and freedom against us.”
If terrorists cannot be deterred, Morgan said, and Americans will not change to give up freedom, the government needs to be able to detect terrorist activities.
Morgan also said the act’s critics have a role to play as they had in previous expansions of government power in crisis times.
“Then as now civil libertarians can and should raise concerns,” he said. “The pendulum swings, peace returns, things go back to normal.”
However, Morgan said, some criticisms of the act have become mixed with attacks on the George W. Bush administration.
“I think the attacks on Attorney General (John) Ashcroft have been so extreme as to be construed by people of faith as an example of religious bigotry,” he said.
The USA Patriot Act was a “much less dramatic response” than in previous national security crises, Morgan said, and gives law enforcement appropriate tools to stop terrorists.
“The courts are still open, the press is still free,” he said. “The ability to openly attack the act freely, at will, is a demonstration of the freedom that still exists.”
But Peter Erlinder, a constitutional law professor at William Mitchell College of Law in St. Paul, said the USA Patriot Act allows indefinite detentions without due process of those declared terrorism suspects by Defense Department lawyer Michael Mobbs, a leading administration anti-terrorism official.
“The only thing that stands between being in this room and being in military prison is Mr. Mobbs’ accusations,” he told the audience of more than 100 University students and faculty.
Erlinder likened the USA Patriot Act to former President Richard Nixon’s assertions of presidential power, which the Supreme Court found unconstitutional in 1972.
He also said the act was the result of law enforcement officials seizing the aftermath of the Sept. 11 attacks to gain broader powers.
“The bill of some 342-odd pages was put together in a month, which means it had existed before,” he said. “In the hysteria of the time and the concern of all of us for doing something about this tragic event, frankly, Congress was stampeded.”
Erlinder said President Bush has claimed the power to accuse, try and sentence suspected terrorists, in direct violation of U.S. and international legal standards.
“What we are facing is not merely an act,” he said. “What we are facing is the most aggressive, unrestrained assertion of power that has been seen in this country in its history.”
He said the public must act if it wants the law’s effects contained.
“I don’t think we can depend on the Legislature; I don’t think we can depend on the judiciary,” he said. “We have to depend, as we have depended so many times in the past, on the American people.”
