June 14, 2004

Federal and state prosecutors are applying stiff antiterrorism laws adopted after the 9/11 attacks to broad, run-of-the-mill probes of political corruption, financial crimes and immigration frauds.

If the government gets its way, even routine transactions of buying or selling American homes could soon come under the scrutiny of money-laundering provisions of the USA Patriot Act. The Treasury Department, which already has caught up financial transactions in casinos, storefront check-cashing stores and auto dealers for scrutiny, wants to expand Patriot Act coverage to home purchases as well.

Since 9/11, critics say the greatest effect of new state and federal antiterrorism laws has been on crimes already covered by other laws.

Washington-area snipers John Muhammad and Lee Boyd Malvo were both convicted under a post-9/11 Virginia antiterrorism statute making it a death-penalty offense to be involved in more than one murder in a three-year period. Muhammad was sentenced to death, and Malvo was given life imprisonment without parole.

The FBI has used Patriot Act provisions in a political corruption probe involving a Las Vegas girlie bar, and the Justice Department reported to the House Judiciary Committee last year that it used the new law in probes of credit-card fraud, theft from a bank account and a kidnapping.

In the first action of its kind, the Treasury Department also used the Patriot Act this year to put Syria's largest commercial bank and two commercial banks in Myanmar on blacklists - actions that forbid any U.S. financial institution from doing business with them.

Legal experts say they're not surprised that antiterrorism laws are being used for more than just terrorism.

Peter Swire, a law professor at Ohio State University, recalled that Congress adopted antiracketeering laws in 1970 with the intent to thwart mobsters, but the punitive laws have since been broadened and put to use in civil cases against corporations, and most recently against the organized campaigns of pro-life protesters against abortion clinics.

Swire worked in the Clinton administration and chaired a White House working group looking at issues involved with electronic surveillance. He said many Patriot Act provisions, which sped through Congress within days after 9/11, were proposals that either Congress or the White House had previously rejected. Many provisions are slated to expire next year unless Congress makes the changes permanent.

Swire said one little-noted impact of that law on the judicial system is that prosecutors can add more charges against defendants, even when terrorism isn't involved.

"Prosecutors like to have more arrows in their quiver - it gives them more leverage in plea bargaining," he said. Plea bargaining is the process where prosecutors offer to drop some charges in return for a defendant's guilty plea in order to avoid costly, time-consuming trials.

Swire contends the Patriot Act has been so controversial that the Justice Department has been very cautious in using all of its provisions.

"They are careful because they know people are checking to see if it is abused," he said. "Once it becomes permanent, I think it will be used more widely."

The American Civil Liberties Union and other civil rights groups are campaigning for Congress to terminate some of the more controversial provisions of the Patriot Act, contending the law unnecessarily expands government powers.

The ACLU says the government already has sufficient investigative tools, and the Patriot Act has been used for non-terrorist-related crimes such as seizing stolen funds from bank accounts in Belize.

Michael Mello, a law professor at Vermont Law School, disagrees and said the Patriot Act made some needed changes in government procedures, including provisions that tore down barriers that prohibited the FBI and CIA from sharing information.

"There's been a sea change by tearing down that wall," said Mello. "To forbid the FBI from getting spooks' (CIA) information that someone in the United States was carrying out a significant criminal enterprise is insane."

In spite of the criticism from the ACLU and others, Mello said he doesn't believe the Patriot Act has been misused or has resulted in any expansion of government powers. "In the absence of evidence, the critics lose," he said.

Mello agrees that there are some provisions in the Patriot Act that should be allowed to expire. He opposes a controversial provision allowing the Justice Department to use so-called "national security letters" to obtain library records, medical records and banking records of people put under surveillance. The Patriot Act wasn't needed when police searched library records in the hunt for Unabomber Ted Kaczynski or the effort to track New York's Zodiac killer, Mello noted.

Many government activities under the Patriot Act remain shrouded in secrecy. One of the provisions not expiring is an expansion of police powers to obtain "sneak-and-peek" warrants allowing surveillances - including break-ins - without notifying the people being watched.

The government is being more aggressive in asking courts for surveillance warrants. The Justice Department last year made a record 1,727 requests for wiretap approvals from the secretive Foreign Intelligence Surveillance Court, but does not publicly disclose how many investigations that might involve.

Attorney General John Ashcroft told the Senate Judiciary Committee last week that the Patriot Act has been used judiciously, and he urged Congress to give speedy consideration to extending it.

(Contact Lance Gay at GayL(at)shns.com. Distributed by Scripps Howard News Service, http://www.shns.com)

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