One Nation, Under Watch

[Guest guest]

http://www.alternet.org/rights/23917/

 

One Nation, Under Watch

 

By Silja J.A. Talvi, Santa Fe Reporter. Posted August 8, 2005.

 

 

 

Even though many critics believe the Patriot Act was a sucker-punch to

the Bill of Rights, Congress plans to make many of its provisions

permanent.

 

 

Six weeks after 9/11, with scores of heartbreaking obits being printed

in the New York Times every single day and the toxic dust from the

collapse of the twin towers still settling, Congress passed the USA

PATRIOT Act into law.

 

The bill's supporters characterized the act as a necessary measure to

secure the country's safety in the wake of the terrorist acts. The few

congressional dissenters at the time were criticized for lack of

patriotism.

 

" My primary concern was (and is) that the judiciary is not overseeing

this sweeping grant of power to the federal government, " U.S. Rep. Tom

Udall, D-NM, says. Udall was one of just 66 House members who voted

against the bill initially and against its renewal earlier this month.

" In trying to find that balance between our freedoms and our security,

in this case, we cut them out of the picture. "

 

Indeed, a growing number of critics today believe the PATRIOT Act was

passed swiftly amidst national hysteria, effectively sucker-punching

the Bill of Rights and fooling the public into thinking it would be

safer as a result. Since then, hundreds of red and blue counties and

cities -- including Santa Fe -- have passed various opposition and

non-compliance resolutions against the PATRIOT Act, while civil

liberties groups have continued to document abuses of privacy and

other rights taking place under its auspices.

 

Nonetheless, much of the bill is headed for permanence.

 

On July 29 the U.S. Senate decided unanimously both to reauthorize and

make permanent much of the legislation, although some components were

given new expiration dates. The week before the U.S. House did the same.

 

President Bush is expected to sign the reauthorized and largely

permanent PATRIOT Act into law on Sept. 11, 2005, pending an

ironed-out version between the House and the Senate once the

legislative session resumes.

 

While the law is one of the most far-reaching and drastic in U.S.

history, it is not the first time the government has moved to utilize

a time of real or perceived crisis to increase its powers of

surveillance and detention. And while portions of the bill will be

reviewed again in two years, much of what is considered its most

invasive components remains. " We rushed to put together legislation

that we thought would safeguard us from another terrorist attack, "

U.S. Rep. Don Young, R-AK, said in the aftermath of the House

reauthorization vote. " In the process we have created a bill that I

feel takes away from our constitutional freedom. This is not

patriotism, this is Big Brother. "

 

What some might call the Orwellian manifestation of " Big Brother, "

others refer to as Section 213. That's the portion of the PATRIOT Act

that gives the FBI expanded ability to conduct " sneak-and-peek "

searches of a person's home or office.

 

Under the PATRIOT Act, law enforcement agents do not have to prove

they are suspicious of domestic terrorism to obtain the right to

conduct such searches. They are allowed to utilize such

sneak-and-peeks for regular criminal investigations as well. Once

granted, a sneak-and-peek visit can include the taking of photos or of

physical objects. As the law is currently written, the subject of the

search is likely to never know the search has even taken place.

 

Udall and other critics of the PATRIOT Act believe the sneak-and-peeks

constitute a violation of constitutional rights to privacy and freedom

from unwarranted search and seizure.

 

" The reality is that these investigations are already happening

covertly, " Peter Simonson, executive director of the American Civil

Liberties Union in New Mexico, says. " What's worse, the target of a

subpoena may never know that the FBI is looking through their property. "

 

According to data released by the Bush administration in April 2005,

sneak-and-peeks already have nearly doubled in the past two years.

From Oct. 26, 2001 to April 1, 2003, the Justice Department asked for

and received sneak-and-peek warrants 47 times. From April 2, 2003 to

Jan. 21, 2005, the number of warrants increased to 108. The Justice

Department also sought seizure authorization 45 times from Oct. 2001

to Jan. 2005.

 

Owing to the secretive nature of the sneak-and-peeks, very little is

known about the people subjected to them, with the notable exception

of Brandon Mayfield, a Portland-based attorney who was arrested in

March, 2004 on suspicion of being a material witness to the deadly

Madrid terrorist attacks. Mayfield, a convert to Islam whose house

was, in fact, searched in secret, was detained for two weeks before

the government admitted to a case of mistaken identity. Mayfield is

now suing the Justice Department for violation of his constitutional

rights.

 

Another section of the act also enables the government to access the

subject lines of e-mails and even to track Web surfing habits, if law

enforcement officials can certify that the surveillance is somehow

relevant to an ongoing criminal investigation.

 

All of this is why organizations such as the Center for Constitutional

Rights (CCR) have launched lawsuits and education campaigns to bring

attention to how innocent citizens can be ensnared in wide and

unfocused " fishing " expeditions for intelligence gathering.

 

" Our nation is made safer by good police work, not by legal shortcuts

that insulate the executive and law enforcement from the oversight of

the courts and the scrutiny of the press and voting public, " New York

CCR Staff Attorney Shayana Kadidal says. " The founders [of this

country], who were great skeptics of human nature...built probable

cause principles into our Constitution precisely because they

understood this. "

 

Of all the sections of the act, it is Section 215 that has drawn the

most attention and scrutiny.

 

The opposition comes from a truly far-ranging set of opponents,

ranging from gun-toting NRA members to mild-mannered librarians.

 

In essence, Section 215 grants the FBI the extraordinary power to

obtain the personal records of any U.S. citizen as long as the related

investigations " protect against international terrorism or clandestine

intelligence activities. "

 

Prior to the PATRIOT Act, the limit on national security

investigations and their reach into personal records had to do with

foreign powers or the (suspected or known) agents of foreign powers.

Section 215 swept away that limit, making it possible for the federal

government to gain as much information about a person as possible as

long as the records are sought for a " national security

investigation. " An automatic and permanent gag order applies in all cases.

 

Further, the FBI's authority to access records had been generally

limited to business records and credit transactions. Section 215

changed all that to apply to " any tangible things belonging to or held

by any organization or person. "

 

A June 2004 Freedom of Information Act (FOIA) request from the ACLU

and other groups revealed the FBI had submitted an application to

authorize action under the Patriot Act's Section 215, which can be

used to get information about innocent people, including those not

suspected of terrorism or spying, less than a month after Attorney

General John Ashcroft stated publicly that the controversial section

had never been invoked. To this day, it is unknown how many times the

FBI has utilized its power under Section 215, or for what purpose.

 

Another similar but less talked about portion of the act, Section 505,

gives the FBI similar powers, but with no judicial oversight

whatsoever (although critics say the judicial process under 215 is

really a rubber stamp with no real teeth as far as oversight). Under

505, any FBI field office can issue a " National Security Letter, "

giving agents access to all personal records of a targeted individual.

 

Under both 215 and 505, nothing is off limits. Medical histories,

credit reports, magazine subscriptions, membership lists, bookstore

purchases, airline reservations, social service files, library

records, academic transcripts, psychiatric records, charitable

contributions and even genetic information can be accessed. (Ashcroft

admitted the latter when questioned by the House Judiciary Committee

in June 2003.)

 

Representatives of the Justice Department have tried to spin Section

215 in particular in a number of ways to make it seem more palatable

to American citizens. Over the past four years, Justice Department

officials have, for instance, gone on the record saying that the

section only applies to foreign intelligence; that U.S. citizens are

exempt altogether from Section 215; or that the section only pertains

to terrorism.

 

In fact, the only distinction Section 215 makes between citizens (and

permanent residents) and non-citizens is one revolving around a

criteria of First Amendment activity. Essentially, people who are not

U.S. citizens or residents can trigger a Section 215

investigation/order solely on their First Amendment activities (for

instance, attending a rally or writing a letter to a newspaper). U.S.

citizens and residents, on the other hand, cannot have their First

Amendment activities be the sole cause of an investigation, although

they can be a part of why they are being investigated.

 

As the most highly debated provision of the PATRIOT Act, Section 215

has drawn the most attention from legislators who have worked to

curtail or amend it in a number of ways.

 

For example, earlier this year, U.S. Rep. Bernie Sanders, I-VT,

proposed an amendment that would have guaranteed Americans the right

to read and access information at libraries and bookstores without

government intrusion or monitoring except in cases where a signed

order from the FBI director himself was presented. Although a similar

amendment passed in June with overwhelming bipartisan support in the

House, that amendment that was not attached to the reauthorization of

the PATRIOT Act.

 

In fact, when Sanders and fellow congressional members attempted to

get this amendment heard and voted on as a part of the reauthorization

of the PATRIOT Act, the Republican-controlled House Committee on Rules

subverted the democratic process by simply denying the opportunity for

the amendment to even reach a vote.

 

Although it was not widely reported in the news media, at least 20

amendments to the PATRIOT Act were being considered on the day of the

vote, many of them regarding Section 215, and several brought to the

table by Republicans themselves. Every last one of them was cast aside

by the House Committee on Rules.

 

" They cut [the proposed amendments] out of the picture entirely, "

Udall says. " The Republican leadership should be ashamed of how this

was handled. "

 

Of additional concern to organizations like the ACLU has been the

creation of a new category of domestic terrorism. In the PATRIOT Act,

Section 802 describes domestic terrorism as something that involves

" acts dangerous to human life that are a violation of the criminal

laws of the United States, " if the intent is to " influence the policy

of a government by intimidation or coercion. "

 

The creation of a new category of domestic terrorism has raised fears

of unwarranted crackdowns on street demonstrations and heightened

concerns that people who simply associate with certain groups in their

private lives could, by virtue of their affiliations, be charged under

this law.

 

In response, the DOJ has stepped up its own outreach campaign to make

clear that peaceful groups that dissent from government policy

(without breaking laws) cannot be targeted under the PATRIOT Act.

 

In a special section of the DOJ's Web site devoted to dispelling the

" major myths about the PATRIOT Act, " readers are informed that

" peaceful political discourse and dissent is one of America's most

cherished freedoms, and is not subject to investigation as domestic

terrorism. "

 

Simonson says real concerns still remain: " What if a window is broken

or a police officer is injured by a flying projectile in the course of

a street demonstration? If laws are broken in the course of protest,

it is possible that the crime could be classified as domestic terrorism. "

 

Other aspects of the PATRIOT Act are of additional concern where

charges of terrorism are concerned.

 

Section 412 of the PATRIOT Act increases from 24 hours to seven days

the amount of time the government now has to either charge detained

immigrants with an act of terrorism (or another serious criminal

offense), or to let them go. If charged, defendants in immigration

proceedings have no automatic right to counsel, and can face

indefinite detention if the attorney general finds " reasonable

grounds " to believe the defendant is a terrorist or a threat to

national security in some fashion.

 

Another section of the act relating to terrorism, Section 303, has

drawn criticism and a successful lawsuit from the Center for

Constitutional Rights. That section, explains Kadidal, " was designed

to give prosecutors the discretion to charge defendants with crimes

just based on their association with groups. "

 

" It's classic guilt-by-association, of the sort that was used to

persecute Communist Party members, " he adds.

 

As for whether the PATRIOT Act has rooted out at least a few real

terrorists, the DOJ has gone on the record saying the law has, in

fact, worked as it was intended, resulting in nearly 400 charged

levies against terrorists on U.S. soil. Nearly half of those have

already resulted in convictions.

 

On closer examination, Simonson says, only 39 of those convictions

have actually been related to terrorism. The vast majority of the

convictions have been for immigration-related violations, including

passport and visa violations, and making false statements to

immigration officials.

 

But what of those 39 terrorism charges? Simonson replies that the

overly vague definition of terrorism has resulted in an exaggeration

of the true danger of these individuals to national security. If they

were truly as dangerous as the DOJ has alleged them to be, he

emphasizes, why are so many of these terrorists serving sentences as

short as four months in federal prisons?

 

" The [bush] administration has crowed long and hard whenever it has

thought that a terrorist cell has been [uprooted], " he says. " But

we're not actually hearing about those sorts of accomplishments. "

 

When the very first convictions of terrorists were secured using the

PATRIOT Act in 2003 in the highly publicized case of the Detroit

Sleeper Cell terrorists, the DOJ trumpeted the successful 2003

prosecutions and convictions as clear evidence of how well the law was

working.

 

A year later, however, those convictions were thrown out at the

request of the DOJ itself. The three Muslims who had been targeted as

terrorists once accused of helping to plan attacks in Las Vegas and at

Disneyland weren't terrorists after all.

 

When the executive branch doesn't have to justify every arrest with

probable cause, Kadidal says, " they can engage in sweeps based on

ethnicity and religion that waste huge amounts of police resources by

chasing after people we have no rational reason to suspect. "

 

The end result? From the perspective of civil libertarians, the

picture is far from pretty: a public kept in the dark; a government

with unchecked and wide-ranging power over the lives of citizens; and

immigrant communities on guard and less likely to provide the kinds of

civilian tips that are typically at the heart of all major

international anti-terrorism arrests.

 

The battle to curtail some of the PATRIOT Act's sweeping powers is

likely to be a difficult and prolonged one, as organizations like the

ACLU and CCR continue to challenge the constitutionality of a law that

is now virtually guaranteed to be reauthorized. Come Sept. 11, 2005,

the PATRIOT Act will, once again, be the law of the land for most of

the foreseeable future.

 

U.S. Rep. Ron Paul, a staunchly conservative Texan Republican, issued

some of the harshest and most critical words about the majority vote

in the House.

 

" All of this nonsense about sunsets and reauthorizations merely

distracts us from the real issue, " Rep. Paul wrote in his July 25

Texas Straight Talk column. " America was not founded on a promise of

security, it was founded on a promise of personal liberty. "

 

In other words, CCR's Kadidal says, " The PATRIOT Act says 'trust us.'

And that's why it's so dangerous. "

 

Silja J.A. Talvi writes for In These Times, the Christian Science

Monitor, The Nation and other publications. Her work appears in the

anthology, " Prison Nation " (Routledge, 2003).

 

Learning from the Past?

 

The USA PATRIOT Act is unique in both its wording and in its scope in

modern American history. However, there have been numerous historical

examples of pieces of legislation passed into law during times of

national crisis, whether real or imagined. In hindsight, most of those

laws served the purpose of neutralizing opposition and stifling

dissent through a selective redefinition of what constituted illegal

domestic conduct.

 

For example, as Nancy Chang writes in Silencing Political Dissent: How

post-September 11 Anti-Terrorism Measures Threaten Our Civil

Liberties, the Espionage Act of 1917, passed during World War I, made

it a crime to cause draft refusal or mutiny in the armed forces, as

well as to willfully utter, print, write or publish any disloyal,

profane, scurrilous or abusive language regarding the United States.

 

Among the many people prosecuted and incarcerated under the Espionage

Act was Eugene Debs, the founder of Industrial Workers of the World.

Debs was incarcerated for 32 months for giving an anti-war speech

before his 10-year sentence was commuted.

 

The Smith Act of 1940, a product of Cold War hysteria, lasted into the

early 1950s and was upheld by the Supreme Court until 1957 when the

court reversed a previous decision.

 

One of the most similar laws, according to Chang, was the FBI's

secretive COINTELPRO intelligence-gathering operation established by

FBI Director J Edgar Hoover. That law, which also allowed for

extensive domestic surveillance, focused on anti-war activism, as well

as civil rights and black nationalist movements. Unlike the PATRIOT

Act, however, the liberties taken by the FBI's COINTELPRO program were

never backed by legislation. The operations were not made public until

1971, resulting in a set of strict internal FBI guidelines issued by

Attorney General Edward Levi in 1976. Those guidelines have been

significantly watered down since that time, most notably by Attorney

General French Smith in 1983 and Attorney General John Ashcroft during

his recent tenure.

 

In addition to his support of the PATRIOT Act, Ashcroft also played a

significant role in obscuring the transparency of the agency, and has

made the process of obtaining information under the Freedom of

Information Act (FOIA) far more difficult and time-consuming for the

public and the press alike.

 

Judicial consternation regarding the PATRIOT Act is now underway,

albeit in a piecemeal fashion.

 

Last week a U.S. District Court decision found that aspects of the

PATRIOT Act are " impermissibly vague " and in direct violation of the

U.S. Constitution.

 

In a separate case last week, U.S. District Court Judge John

Coughenour handed down a 22-year sentence to convicted terrorist Ahmed

Ressam in Seattle -- a case which pre-dated 9.11 -- and used the

opportunity to deliver what was perceived as a clear critique of the

PATRIOT Act.

 

" The tragedy of Sept. 11 shook our sense of security and made us

realize that we, too, are vulnerable to acts of terrorism, "

Coughenour, who was appointed to the bench in 1981 by President Ronald

Reagan, stated.

 

" Unfortunately, " he went on to say, " some believe that this threat

renders our Constitution obsolete. This is a Constitution for which

men and women have died and continue to die and which has made us a

model among nations. If that view is allowed to prevail, the

terrorists will have won. "