Dubbed the "G Sting" by Nevada press, the case highlighted federal investigators' use of Title III, Section 314 of the Patriot Act to obtain financial records in a probe of Michael Galardi, a Las Vegas strip club owner having alleged criminal dealings with current and former Nevada politicians.
Critics argue the powers the Patriot Act gave law enforcement to hunt terrorists have been extended to the pursuit of run-of-the-mill criminals engaged in nonterrorist activities.
Trouble in Nevada
Nevada's American Civil Liberties Union is worried about what it perceives as the encroachment of law enforcement agencies into areas they don't necessarily belong, said Gary Peck, executive director of the Nevada ACLU.
Peck said a Nevada homeowner's association told the Nevada ACLU that when the homeowners' association tried to open a new bank account, the bank tried to force the association's board members to turn over the Social Security numbers, driver's license numbers and birth dates from each potential check signer on the association's new account.
Peck also said the FBI, in the days leading up to New Year's Eve, demanded hundreds of thousands of names from Las Vegas hotels, casinos, travel agencies and storage facilities under the auspices of preventing possible terrorist attacks.
"This raised very serious privacy concerns, particularly when you put that kind of snooping together with all the other powers the FBI now has to -- once they have the names -- demand additional private, financial information on the people they seek to investigate. This is all done without any judicial oversight and without any meaningful checks on these kinds of investigative activities."
Las Vegas businesses weren't happy about the FBI's requests, and complained loudly to their Congresswoman, U.S. Rep. Shelley Berkley, who responded by drafting a letter to the Department of Justice. She asked for its guidelines on using the Patriot Act in cases not involving terrorism. "We have not been given any information as to where all that data went, what happens to it once they accumulate it and how it's used," said David Cherry, communications director at Rep. Berkley's Washington, D.C., office.
The demand for such lists amounts to de facto data-mining on an unprecedented scale, Peck said, noting that the national ACLU mounted a widespread public education and lobbying campaign to sway public opinion (and federal lawmakers) against certain provisions of the USA Patriot Act. The national ACLU also instigated lawsuits against Section 215 of the act, he said, among other sections.
Though litigation is one way to attempt to put a damper on the Patriot Act's reach, another approach appears to be gaining momentum.
Guerrilla Tactics
"We have been at the forefront of the movement to encourage local and state governments to pass anti-Patriot Act resolutions, in which the governments would take a stand for the Constitution and the Bill of Rights and against government access," Peck said.
So far, more than 200 cities and towns nationwide have passed anti-Patriot Act resolutions, and in late January, Los Angeles' City Council passed a resolution urging Congress to repeal provisions of the act that allow law enforcement agencies to obtain library and bookstore records, among others. It's believed that Los Angeles is the largest city to pass such a resolution.
Arcata, Calif., was the first city to make it a misdemeanor for the city's top nine officials to voluntarily comply with a Patriot Act request from federal law enforcement agencies. Before releasing any records, the city officials must first seek the City Council's permission -- or face a $57 fine.
Though the case could be made that such resolutions are purely symbolic and don't accomplish anything tangible, supporters of the resolutions think otherwise.
"The more the public becomes aware of what's going on and what the ramifications of that are -- it's part of the public education process," said Allen Lichtenstein, general counsel of the Nevada ACLU. "Hopefully that will translate into more pressure on legislators to roll back some of the more onerous provisions [of the Patriot Act] that were passed in haste after 9/11 and since that time."
No Checks, No Balances
To the Nevada ACLU and other critics, one of the biggest problems with the Patriot Act is the removal of judicial oversight of law enforcement surveillance and information gathering.
"The framers of the Constitution were very concerned with unbridled governmental power, which is why they created the system of checks and balances, so no one acting on behalf of government would ever be able to act without scrutiny and without some kind of accountability," said Lichtenstein.
The fear is that unchecked information gathering will lead to the development of massive government databases full of information on normal, nonterrorist American citizens -- citizens who shouldn't be included in government dragnets to catch terrorists.
As with any perceived privacy intrusion by government, it becomes a question of watching the line.
"The bigger question becomes, 'Where is the line drawn between the way we treat suspected terrorists and the way we treat ordinary citizens in the course of trying to root out suspected terrorists?'" said Cherry.
"We call it 'Patriot Act creep,'" he said. "How insidious is this thing? Where are its tentacles going? What other areas is it creeping into that existing laws could have been used to cover some of these requirements? As we look to reauthorizing this bill next year, or not reauthorizing it, and maybe taking some components that are important and keeping them and dropping the rest, what should be the threshold there?"
Cherry noted that it's not necessarily wrong for the FBI to ask Las Vegas hotels for information on guests on New Year's Eve -- but it raises the question of whether private citizens should expect that registering at a hotel means their names will be run through an anti-terrorism database.
A Matter of Convenience
Though the Patriot Act may have made some changes to checks and balances, other observers say the changes don't automatically transform G Men into bogeymen.
"My own view is that most of the Patriot Act is justified," said David Smith, head of the Money Laundering Task Force of the National Association of Criminal Defense Lawyers "But the one area I don't agree with the Patriot Act is Title III," Smith said. "What they [the backers of the act] did was use 9/11 as an excuse to throw into the legislative hopper all of these money laundering expanding proposals they had on their word processors -- some of which they had attempted, unsuccessfully, to get through Congress in the past."
The money laundering proposals had nothing to do with terrorism, he said, and were just general provisions that apply to every crime that falls under the already-existing money laundering statute.
"For every one terrorist who might possibly be snared by these provisions, there will be 10,000 other nonterrorists who are simply run-of-the-mill fraudsters, tax evaders, embezzlers and corporate executives who commit regulatory violations," he said. "Those are the people who are really going to pay the price for these provisions."
Part of what attracted critics' attention is the Patriot Act's extension of administrative subpoenas to a new range of cases. These subpoenas allow law enforcement agents to obtain and execute search warrants without seeking approval of a grand jury -- a check that's necessary, say civil liberties advocates.
"The government says, 'Well look, we've already gotten administrative subpoena authority for the DEA and the FBI in some other areas, such as health-care fraud investigations, so why shouldn't we expand it to money laundering cases?'" Smith said. "We, and many other groups, are dead-set against expanding the government's administrative subpoena authority. That's become a big thing with the government now. Every one of their agencies now wants administrative subpoena authority, so they can issue these things without going through a grand jury."
Administrative subpoena authority doesn't automatically translate into extraordinary powers, Smith said, because law enforcement agencies can get grand jury subpoenas. Still, he added, going through a grand jury gives a little more protection to the person on the wrong end of the subpoena, and it makes law enforcement agencies think twice before submitting a subpoena request to a grand jury.
End Game
Though the USA Patriot Act's fate is difficult to predict, it is coming up for congressional reapproval in 2005, surely generating plenty of rhetoric for and against the controversial law in the coming months.
The U.S. Senate has already begun the process.
In November 2003, the Judiciary Committee held a hearing called "America after 9/11: Freedom Preserved or Freedom Lost?" The purpose of the oversight hearing -- and the others to follow throughout 2004 -- is to examine progress in the "war on terrorism" and its impact on Americans' civil liberties.
Hold on. It's going to be a wild ride.
