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Posted on 11/26/2001 5:17:04 PM PST by KQQL

Controversial Anti-Terrorism Provisions Will Never Expire

By Jeff Johnson
CNSNews.com Congressional Bureau Chief

November 26, 2001

(CNSNews.com) - Conservative lawmakers, who voted against the recently-passed anti-terrorism bill (H.R. 3162), are even more concerned now that they've learned the controversial provisions they opposed will never expire.

As CNSNews.com reported earlier, Rep. Ron Paul (R-Texas) and Rep. C.L. "Butch" Otter (R-Idaho), along with three other members of Congress, opposed several parts of H.R. 3162.

"Generally, it was too broad a distribution of authority," Otter said. "It was way too broad a reach of powers."

Paul agrees, and is even more direct with his criticism.

"I was convinced that it was unconstitutional. That was my basic reason. The other is that a complete analysis wasn't available because the bill wasn't completely available," Paul said Tuesday. "That also made me very annoyed."

Paul says the full text of the proposal was never made available to House members prior to the vote. Surprisingly, he says, such tactics are not unusual.

"The logical conclusion would be that the more complex it is, the more time we should have to study it. But that's not the way it works in the Congress. As a matter of fact, it works almost the opposite way. The more complex, especially if controversial, the less likely it is that you'll get to read it," he explained. "This was a traditional method where they made it very difficult to know what was going on, and then the political pressure was put on the members to vote for it."

The Texas Republican says he faced even more pressure to vote for the bill simply because of its name: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" or USA PATRIOT Act.

"You know, who's going to vote against a bill that's called the 'patriot act'?" he asked. "And so, the pressure was tremendous on the members to go along and not ask too many questions."

Paul says many members privately voiced their concerns to him, but were unwilling to vote against the bill.

"It's pretty hard for people to go home and explain themselves," he said. "They have a pretty good sense that this type of legislation is bad, but the effort to buck the system and buck the establishment media is too difficult so they just go along with it."

Otter says many members, who might have otherwise voted against the bill, may have been pacified by the inclusion of a "sunset," or expiration clause in the proposal.

"The sunset, as far as I'm concerned, was an effort to say, 'Well, we're only after the terrorists, and we're only going to do this, and we're only going to do that, and we're going to sunset it after a certain period of time so you folks won't have to worry about it,'" he speculated. "That way, they got more people to vote for it because they said, 'Well, it's only going to go on for a certain period of time.'"

Paul says even the sunset clause does nothing to assuage his concerns.

"I'm not even that optimistic about the portions that sunset. I don't think we should just say, 'Oh, well, it's bad, but four years and then it's gone and we'll start all over again,'" Paul warned. "I would not be that complacent."

Paul's suspicion is well founded. The final version of the bill exempts all of the controversial provisions Otter and Paul opposed from that sunset clause. Section 224 of the final version of H.R. 3162, signed into law by President Bush says, "This title, and the amendments made by this title (other than sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to have effect on December 31, 2005."

The following provisions, exempted from the sunset clause, were opposed by one or more of the five members of Congress who voted against the USA PATRIOT Act:

\li360\fi-360\tx360- Section 203(a): Authority to Share Grand Jury Information;
- Section 203(c): Rules established by the Attorney General to carry out 203(a);
- Section 210: Scope of Subpoenas for Records of Electronic Communications. (Legal analysts fear this provision could be used to gain access to the content of email messages without obtaining a search warrant.);
- Section 213: Authority for Delaying Notice of the Execution of a Warrant. (This is the so-called "sneak-and-peak" search warrant.);
- Section 216: Modification of Authorities Relating to the Use of Pen Registers and Trap-and-Trace Devices; and - Section 219: Single Jurisdiction Search Warrants for Terrorism. Paul says, under the logic used to promote the bill in the first place, it would have made sense to exempt those provisions from expiring.,p. "If these provisions are critical tools in the fight against terrorism, why remove the government's ability to use them after five years?" Paul asked, arguing against the bill on the House floor October 12. "Conversely, if these provisions violate American's constitutional rights why is it acceptable to suspend the Constitution at all?"

Otter was told there was a valid justification for exempting the provisions from the sunset clause.

"The reason they did that, ostensibly, was, if they had an investigation that was going on, they didn't want that to sunset it and to have the doors slammed in their face," Otter said. "That's the claim I've heard."

That claim may arouse even further suspicion on the part of members who opposed, but did not vote against the bill. Subsection (b) of the Sunset clause provides an exception for ongoing intelligence investigations:

"EXCEPTION- With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in subsection (a) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue in effect."

That subsection makes an exemption from the sunset clause unnecessary, at least for the reasons explained to Otter. But he says he's not surprised at the unwillingness to cede the powers granted by the legislation.

"I have never seen a government agency lose authority. Ever!" Otter exclaimed. "We're still paying taxes on our telephone bills to fight the Spanish-American war."

Otter says he supports law enforcement, and has no regrets about voting against the bill. "If I'm going to err, I'm going to err on the side of freedom," he said.

Paul hopes more attention will be focused on the bill by these revelations.

"There's so much support for this type of legislation because everybody visualizes that it's going to be used only against 225 people who have been allegedly identified as terrorists," he cautioned. "Everybody, when they look at legislation like this should say, 'Well, could this be used against me for some other reason?'"

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