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Lawyers say post-9/11 U.S. is like police state

Jim Nichols, Plain Dealer Reporter | May 01, 2004

Americans have a fearsome new enemy since 9/11, and that enemy is their own government, a panel of prominent defense lawyers told colleagues Friday.

Congress and the Bush administration are behaving in most un-American ways under the guise of national security, the lawyers argued: gutting civil rights, usurping powers to eavesdrop, creating secret tribunals where the accused have no rights.

And, they emphasize, all Americans not just terrorists are potential victims of the USA Patriot Act and other laws and presidential orders implemented in 9/11's wake.

"We are living in a very dangerous age," said Marvin Miller, an Alexandria, Va., trial lawyer. "I have this theory that just because we started out as a democracy doesn't mean we're going to survive as a democracy."

The Cuyahoga County Bar Association's Criminal Law Committee hosted the seminar. Speakers included Miller; David Baugh, who earned prominence and ire defending al-Qaida terrorist Mohamed Rashed Daoud Al-'Owhali; former National Association of Criminal Defense Lawyers President Gerald Goldstein; and Geoffrey Mearns, a former assistant U.S. attorney and electronic-surveillance expert for the Cleveland law firm Baker & Hostetler.

Americans were justified in wanting to lash out after 9/11, Goldstein said, and those who weren't furious "don't deserve the freedoms we enjoy."

"But if you think for a minute that giving up our freedoms is the way to protect us from terrorism, you're equally wrong," he added.

Among legal changes the defense lawyers lambasted:

National Security letters, which allow the FBI, without a warrant or judicial oversight, to order Internet providers, phone companies and other businesses to disclose sensitive data on anyone, then impose a gag order barring recipients from telling anyone the information was requested.

New forms of warrants called "delayed notice" searches that let authorities enter homes or businesses and copy computer or paper files without telling the search's target, as traditional warrants require.

Virtually warrantless eavesdropping on electronic communication by the National Security Administration and Justice Department. The government has been doing it since 1978 to snoop for foreign spies, but now can share what used to be strictly intelligence data with state and federal law-enforcement agencies, Mearns said.

The word "terrorism." The Patriot Act defines it so broadly that, had the act existed earlier, it could have been used to crush the civil-rights movement.

The foundation of the United States, and the reason people risk their lives to immigrate here, is the Constitution, a document "written by people who didn't trust the government," said Baugh, a Richmond, Va., criminal-defense attorney. Yet Americans' rising xenophobia and fear of terrorism are driving us to weaken it and become a police state, Baugh, Miller and Goldstein argued.

"Hitler did not impose his will on an unsuspecting public," Goldstein said. "The Third Reich arose on a groundswell of popular support."