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Patriot Act used to prosecute U.S. civilian

Associated Press | June 19 2004

The CIA contract employee accused of abusing a prisoner in Afghanistan is being prosecuted under the Patriot Act in what legal experts are calling a surprising and to some, troubling application of the new anti-terrorism law.

Attorney General John Ashcroft invoked the Patriot Act to assert jurisdiction in the case of David Passaro, who will be tried in federal court in Raleigh, N.C., on four assault charges in the death of an Afghan man.

David Sheldon, a former Navy lawyer who now defends military personnel in courts-martial proceedings, said the Justice Department may be going too far.

"In my view, any time the fed eral government is expanding its jurisdiction and reach to include conduct that occurs overseas, that is startling," Sheldon said.

But in announcing the indictment Thursday, Ashcroft said the government had few alternatives, since American civilians working on contract for the CIA in Afghanistan and Iraq might not otherwise be subject to U.S. justice.

"This case would have been more difficult to investigate and prosecute were it not for the USA Patriot Act," Ashcroft said. "The act expanded U.S. law enforcement jurisdiction over crimes committed by or against U.S. nationals on land or facilities designated for use by the United States government."

Congress hurriedly passed the Patriot Act in the weeks following the 2001 terror attacks, and the measure broadly expanded the government's wiretapping and surveillance authority. Its primary purpose was to prevent terrorist acts inside the United States.

Though the Patriot Act has been used from time to time in cases not directly involving terrorism, it has become a major component in the government's war on terror at home. It was used to help secure the convictions of six Buffalo, N.Y.-area Yemeni-American men tied to an al-Qaida training camp.

In this case, it is being invoked not to protect Americans from foreigners but to protect foreigners from Americans.

"By utilizing the Patriot Act, the attorney general and this administration is, without question, expanding the role of the federal government and the reach of the federal government in an unprecedented way," Sheldon said.

Some legal experts said it appears that the U.S. government had no other applicable law at its disposal and no other good options.

Soldiers serving overseas are subject to military justice. But Passaro is a civilian.

A federal law, the Military Extraterritorial Jurisdiction Act of 2000, allows for the prosecution in U.S. federal courts of civilians hired by the Defense Department, relatives of U.S military members and a few other types of people who accompany military personnel in foreign countries.

But the law is written in such a way that CIA contractors are not subject to it. And until Ashcroft's announcement, legal experts speculated that CIA contractors or those hired by other nonmilitary branches of the government might avoid prosecution altogether for crimes committed in Iraq or Afghanistan.

Passaro, 38, of Lillington, N.C., is being held without bail, accused of assaulting Abdul Wali, who died in custody at a U.S. detention site in Afghanistan.

The indictment said Wali had surrendered and was being questioned by Passaro about frequent rocket attacks.