Friday, March 23, 2007

Patriot Act Redux

Unaccountable Shadow Government Intolerable In A Free Society


The Cool Justice Report
March 22, 2007

EDITOR’S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

Just what does it take to exercise the legitimate powers of government?

In the frenzy that followed 9-11, Congress passed the Patriot Act. Despite its assault on individual freedoms, the powers granted to law enforcement to avoid traditional routes of criminal investigation were somehow justified as we faced terror on our soil.

Naysayers were shouted down when they claimed that many of our long standing constitutional freedoms were being curtailed. The extensive power granted to the Executive Branch was marketed successfully as a necessary part of the so-called war on terror. After all, this fudging – and in some cases busting – of the Constitution was done in the name of national security.

The expansive use and misuse of power appeared in the attempted prosecutions in Utah surrounding the Winter Olympics several years ago. The Act had morphed into a means of attacking suspected public corruption. While few were offended that there now existed a greater tool to root out corrupt pols, again some saw this metamorphosis as a further breeding ground for abuse of the act’s expansive powers. While investigating and prosecuting public corruption is necessary to preserve the integrity of our political system, the means by which it is accomplished should not depart from accepted constitutional limitations.

Still, there was no serious debate. We were comfortable with the broad powers that allowed the unlimited detention of foreign terror suspects. The fictional hero, Jack Bauer of Fox’s 24, helped create a new reality that applauds physical torture in the crusade to gain intelligence on terror activities. The fear of poison gas released in a mall or a nuclear device detonated in one of our cities has helped foster our national collective anxiety that without aggressive government covert action we are easy targets for terror.

The Patriot Act supposedly was designed to deal with issues of national security but in its regenesis this year it has become a much broader weapon.

In Greenwich, Ct., a defense lawyer is accused of destroying a laptop suspected of containing kiddie porn. While not a Patriot Act prosecution, the lawyer’s alleged crimes stem from something called the Sarbanes-Oxley Amendment. Sarb-Ox created yet another federal crime designed to punish those who destroy potential evidence that may be relevant to possible future federal prosecutions, even though no such prosecution has been commenced. The amendment was designed to dissuade corporate targets from shredding smoking gun evidence.

Now the Patriot Act finds itself implicated in the recent ouster of eight United States Attorneys in the latest Bush administration debacle.The Patriot Act permits the term of an interim U.S. Attorney to last until a nominated replacement is approved by the Senate. Effectively, the attorney general can appoint interim or acting U.S. Attorneys who will serve indefinitely without Senate approval. Although U.S. Attorneys serve at the will of the president, the necessity for Senate approval provides a check on the power of the White House to capriciously replace a top prosecutor if he or she is not following an agenda dictated by the administration.

Battle lines are being drawn for an inevitable showdown between Congress and the administration as members have boldly criticized Attorney General Alberto Gonzalez and the president. Congress wants answers since most of the firings appear to target prosecutors who were too aggressive in investigating potential corruption cases against key Republicans or not aggressive enough in pursuing Democratic targets. Most of the firings lend themselves to the claim of political interference by the administration.

Newly appointed White House Counsel, Fred F. Fielding -- who replaced the recently resigned Harriet Miers, herself believed to have been the architect of the wholesale firings -- has hinted at the probable exercise of executive privilege to resist Congressional subpoenas. New battleground; same weapons.

The central theme in all of this is the desire of this administration to answer to no one and to operate in secret. These attitudes more appropriately describe a shadow government in some totalitarian state, not a government whose fundamental goal is protecting a free and open society.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim’s corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy and is a Charter Fellow, American Academy of Trial Counsel. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV.
Andy Thibault, author of Law & Justice In Everyday Life and a private investigator, is an adjunct lecturer of English and a mentor in the MFA writing program at Western Connecticut State University. Thibault also serves as a consulting editor for the literary journal Connecticut Review. Website, and Blog,

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