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When law school dean and former Court of Appeals Judge Joseph W. Bellacosa on Wednesday opened a New York State Bar Association summit on the USA Patriot Act, he expected an academic discourse far removed from the “blather and the decibels and the rhetoric” that has so accentuated the security versus freedom debate. That opening led naturally, or not, to G-strings. Shortly after Bellacosa, dean at St. John’s University School of Law, initiated the panel discussion, Manhattan defense attorney Gerald B. Lefcourt launched into an energetic, nuts-and-bolts criticism of the post-9/11 anti-terrorism laws. Lefcourt described how in real life the laws can be and are exploited by law enforcement for investigations that have nothing at all to do with terrorism. Like the Nevada G-string case. Lefcourt said that in a recent investigation the owner of a Las Vegas strip club was suspected of improperly reaching out to city council members in hopes of thwarting legislation that would prohibit his patrons from touching lap dancers. “The FBI used provisions of the United States Patriot Act and authority they recently got to go to the Treasury Department to put out an all-points bulletin fishing expedition and got the financial records of every city councilman and some of their spouses,” Lefcourt said. “That is what happens when we give government unlimited power. Before you know it, it’s all over the place. … This is a very scary time.” Lefcourt said there have been dozens of cases where the Patriot Act is “used to go after American citizens in new and creative ways.” “We are now living in an America where one can have their dwelling entered surreptitiously, a secret search conducted without notification or with delayed notice, where they can obtain all documents related to your being, rummage through your financial records without court order, where they can listen to every conversation by going to a secret court and providing information that will never be known to anyone,” said Lefcourt, former president of the National Association of Criminal Defense Lawyers. “Worse, people can be and have been picked up off the street … not provided access to a lawyer [and subjected to wiretapping if they are provided with a lawyer],” Lefcourt said. Robert J. Cleary, who was U.S. Attorney in New Jersey on Sept. 11, 2001, countered Lefcourt’s real-life G-string story with an example of his own. After the attacks, Cleary said, authorities were “gripped with an all-consuming, ever-present fear” that another assault was imminent and worked feverishly to dismantle any terrorist plot before it could be carried out. “Speed and efficiency became the watchwords of our command post,” said Cleary, now a litigation partner at Proskauer Rose in Manhattan. “But as we soon found out, the speed and efficiency we so valued was compromised by administrative impediments imposed by antiquated laws. The Patriot Act removed those impediments.” For instance, Cleary said, authorities know that e-mail is the preferred method of communication among terrorists. However, to obtain the content of an e-mail, a search warrant pre-Patriot Act had to be secured in the district of the Internet service provider. “What that meant as a practical matter is that our New Jersey search warrant, seeking e-mails of a terrorist who lived in New Jersey and sent e-mails from New Jersey concerning a crime committed in New Jersey with other people who also resided in New Jersey … had to be filed in San Francisco,” Cleary said. “This created an enormous and unnecessary bottle neck. The Patriot Act has removed that bottleneck. … Is the act perfect? Of course it’s not. But let’s not throw the baby out with the bathwater. The act accomplishes an enormous amount of good. It provides the tools that law enforcement needs to protect us.” PRIMARY AUTHOR Viet D. Dinh, a former top assistant to Attorney General John Ashcroft and primary author of the Patriot Act, acknowledged that the statute is broad, but said it is also measured and appropriate. Dinh, now a professor at Georgetown University Law Center, rejects the contention that enhanced security necessarily means diminished freedoms, and urged against that sort of “lazy and unproductive” examination of a 342-page bill with 157 sections that alter in big ways and small some 15 statutes. He said the act is sweeping, but not excessive, and, while it may need some refinement, remains a functional and valid instrument in the war against terror. “It is a mistake to think of the Patriot Act as an overwhelming or Orwellian [expansion] of government authority,” Dinh said, participating by telephone. Wednesday’s summit, “Let Freedom Ring: The Protections and Real Life Impact of Anti-Terrorism Legislation — An Examination of USA Patriot Acts I and II,” was called by State Bar President A. Thomas Levin and highlighted activities at the organization’s annual meeting. Two panels, both moderated by Bellacosa, debated the pros, cons and unknowns of the law. Nadine Strossen, president of the American Civil Liberties Union and a persistent critic of the act, stressed that neither she nor any responsible critic is advocating repeal of the Patriot Act or even any of its provisions. Rather, she has urged Congress to fine-tune a law that was rushed through just weeks after the Sept. 11 attacks. Strossen said just a handful of changes would make the law far less violative of civil liberties and no less effective as a tool against terrorism. Brooklyn Law School professor Susan N. Herman reminded the audience that the reach of the Patriot Act is far beyond criminal law and involves financial security law, education law, immigration law and several other practice areas.

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