The PATRIOT Act: Darkness With No Sunset
— Julie Hurwitz
A REPORT BY Amnesty International released May 13, 2005 concluded that the treatment of detainees being held around the world, including Guantanamo, in the United States' "war on terror," as glaring and systematic violations of human rights, describing the conditions at the Guantanamo Detention Center as "the gulag of our times, entrenching the notion that people can be detained without any recourse to the law." ("GuantÃ¡namo and Beyond: The Continuing Pursuit of Unchecked Executive Power," Amnesty International, 5/13/05)
How did this happen—inside and outside U.S. borders?
On September 11, 2001, we all watched with horror as terrorists targeted the World Trade Center, and thousands of innocent Americans lost their lives. However, what we have seen, allegedly in response to 9/11, has had little or nothing to do with actually fighting terrorism. Since September 2001, literally thousands of people—most, but not all, of them immigrants and people of Arab descent—have been taken into custody in blatant violation of basic constitutional rights.
Citizens and non-citizens alike have been held incommunicado, with no criminal charges brought against them and without even the right to consult with their lawyers; lawyers are being surveilled in their communications with clients, and prosecuted for vigorously defending them, obliterating the protection of the attorney-client privilege.(See note 1)
We are witnessing the passage of more and more repressive legislation, starting in October 2001 with the oxymoronic USA Patriot Act, passed under the extreme pressure of the circumstances in October 2001. The Act itself has less to do with legitimately protecting our security than with waging a war on our fundamental rights under the Constitution.
This is a war on immigrants, on the poor and working people of this country, and on those who challenge or criticize the government's domestic and foreign policies and its global corporate agenda. Despite its length—over 300 pages, not counting frequent cross-references to other laws—the statute was rushed through Congress in the wee hours of the morning, with virtually no meaningful debate or discussion and no opportunity for most legislators to read it thoroughly.
The version that ultimately became law was snuck through to replace an alternative bill, which had been introduced in the House of Representatives in an attempt to minimize the damage to constitutional rights and had been the subject of a week-long debate in the House. Michigan Representative John Conyers, the ranking Democratic member of the House Judiciary Committee, aptly referred to this as a last-minute "bait and switch" by Republicans in the House, under intense pressure from the White House and the Justice Department to pass the harsher law quickly.
The Patriot Act was just the first in a series of post-9/11 legislative and executive maneuvers that have comprised a wholesale assault on basic constitutional and civil rights. Other repressive legislation, although not the focus here, includes the Homeland Security Act, also passed at the end of 2001, which stripped collective bargaining rights and civil service protections from more than 170,000 federal employees in 17 unions. (The same statute included blatant corporate cronyism, in the form of a $2 billion gift for big drug companies and a $100 billion indemnification provision for insurance companies in the event of future terrorist attacks.)
While supposedly intended to strengthen law enforcement's capacity to prevent another 9/11, there is nothing in the Patriot Act that would have prevented the events of 9/11. On the contrary, its provisions are really a grab bag of governmental powers that had been sought over the years preceding 9/11, and rejected as antithetical to civil liberties.
History has taught us that repressive laws adopted in previous times of crisis (like the Alien and Sedition Act of 1798; restrictions on free speech, and the notorious "Palmer Raids" during WWI; the internment of Japanese-Americans during WWII; blacklists and domestic spying during and after the Cold War/McCarthy era) were eventually recognized as unnecessary at best, and dangerous.
In fact, U.S. law enforcement agencies already possessed more than adequate powers to address the threats at hand long before September 2001. This point has received far too little attention: The FBI is on record as stating that the 1998 anti-terrorism legislation (passed in the wake of the first bombing attack on the World Trade Center) provided the agency with sufficient "valuable tools [to be] the keystone to a successful operation" against sophisticated foreign terrorists.
We now know that before September 11, the government already had voluminous information in its possession, both about the likelihood of major attacks to come in the near future and even about several of the 9/11 terrorists themselves, but had not bothered to read, review, analyze or act upon that information.(See note 2) With this as the backdrop, it is self-evident that rather than enact new and more repressive laws, the government instead should be devoting its resources to better train its officers and to better enforce and implement the laws already on the books.
Creating New Crimes
The so-called USA Patriot Act contains more than 150 separate sections in 10 major titles, some of the more frightening of which provide for radical expansions of criminal and intelligence search and surveillance authority.
The Act creates a new crime of "domestic terrorism," broadly defined to include "acts dangerous to human life, violation of criminal laws...intended [or appear to be intended] to influence policy of government." The implications of such a law and its potential applications are obvious. It creates a legal framework for transforming relatively minor offenses into acts of "terrorism," with potential life sentences.(See note 3)
Thus the Act would apply, at the discretion of Bush's Department of Justice, to a group of teenagers throwing rocks through the window of a government building, out of anger against some government act or policy, and inadvertently either causing serious property damage or injuring someone.
In its overall structure, the Act also undermines the right to seek judicial review of abuses by the state, police, or intelligence agencies. (Paras. 213, 219) Judicial review has historically been a cornerstone of the ability to curb abuses of government power and enforce our constitutional and other rights.(See note 4) Despite the right-wing trend within the federal judiciary over the last several years, the absence of judicial scrutiny by legislative decree is a central and frightening aspect of the current situation, effectively eliminating the separation of powers that is so crucial to a functioning democracy.
The Patriot Act expands the government's powers to enter our homes, offices, and other private places, without even notifying us. It grants the government the ability to obtain search warrants without judicial review or even probable cause to believe that any crime has been committed at all.
A warrant can be issued based solely on a police agent's uncorroborated statement that you are a suspected "terrorist," provided "material assistance" to a terrorist, or made a donation to an organization that is suspected of being terrorist.(See note 5) You don't even have to be aware that you have been identified as an alleged terrorist or terrorist sympathizer; under this statute, the Fourth Amendment does not apply to you.(See note 6)
The Act also allows the CIA and other intelligence agencies to spy on law-abiding citizens and obtain information directly from the FBI, whether or not the subjects are suspected of criminal activity. (paras. 201-12)
It lowers the evidentiary standard for "national security letters," or NSLs, which are issued at the sole discretion of the Justice Department, impose a blanket "gag order" on recipients and are not subject to judicial review. (para. 505) NSLs can be used to seize a wide variety of business and financial records, and in certain instances access the membership lists of organizations that provide even very limited Internet services.
It provides for the virtually unlimited detention of non-citizens, without probable cause and without criminal charges, even after they have successfully challenged the Immigration and Naturalization Service's (INS) deportation efforts.(paras. 201-02) These powers over immigrants have already disrupted the lives of thousands since 9/11.
It substantially expands government powers to wiretap without a warrant or probable cause, and with little or no judicial oversight, whether or not the subject of the tap is linked to any suspected terrorist activity. (paras. 201-12) It also provides for unlimited information-sharing between the CIA, FBI, INS, NSA, the military and the Secret Service, with no right of judicial review and no limits on how these agencies can use the information once they get it. (paras. 203, 506, 701)
One of the more highly publicized provisions of the Act pertains to the government's increased power to use libraries and bookstores to invade our privacy. Section 215 allows federal agents to search the files of public libraries and bookstores to spy on what people are reading, the books they are borrowing or purchasing, to whom they are sending e-mail messages and what web sites they visit—all without any probable cause—while library and bookstore staff are prohibited from informing patrons that they are potential subjects of government political spying.(See note 7)
Under the Act, the government does not have to show that the people whose records are sought are suspected of any crime, nor do they have to inform the intended targets of their investigation. And as with the other provisions of the Act, there is no right of judicial review.*
Former Attorney General John Ashcroft boldly defended his unconstitutional tactic of arresting and indefinitely detaining people who are not charged with any crime as "vital to preventing, disrupting or delaying new [terrorist] attacks." He further accused anyone involved in legitimate constitutionally protected protest activity as "...raising the phantom of lost liberty...[and]...giving ammunition to America's enemies."
Despite many claims that the Patriot Act is specifically intended to fight the "war against terrorism," there are numerous situations where the Act was invoked in "garden variety" criminal cases having nothing to do with terrorism investigations. Thus the Act has been used in the following criminal investigations: seizure of a con man's assets; drug dealer investigations; computer hackers; money launderers. In May 2002, a federal law enforcement bulletin was circulated to U.S. attorneys around the country with regard to the Patriot Act, which stated: "Indeed, investigations of all manner of criminal conduct with nexus to Internet have benefitted from these amendments."
The Sun May Never Set
The "Son of Patriot I" could be worse than the Son of A Bush. In his January 2004 State of the Union address, President George W. Bush broadly endorsed the Act, saying that it is an "essential tool," and that "...the terrorist threat will not expire [when the Patriot Act does]."(See note 8)
There continue to be active attempts by the Bush administration and Congressional Republicans to make the Act and its inroads on our rights and liberties permanent.(See note 9) In May 2004, ten Republican senators introduced a bill designed to eliminate the sunset provisions included in the original Act. One sponsor, Sen. Jon Kyl (R-AZ), noted that he would welcome the Patriot Act provisions "into the foreseeable future."(See note 10) Although many of the most abusive provisions of the Patriot Act were originally slated to be in effect for only five years, scheduled to expire as "sunset provisions" on December 31, 2005, the Bush regime has called for the complete renewal of the Act.
Substantially expanding the legal definition of "terrorist" to include unknowing association with suspected terrorist groups and unknowing support of designated terrorist groups, the proposed "Domestic Security Enhancement Act" (aka "Patriot II," secretly prepared by Justice Department officials shortly before the invasion of Iraq) would authorize the government to strip any American of his or her citizenship who, knowingly or unknowingly, supports a suspected terrorist organization.
An innocent donation to an overseas orphanage that the Justice Department or the Bush administration claims is associated with a suspected terrorist organization could result in the unprecedented loss of citizenship! (Notably, Nelson Mandela's African National Congress would have, for much of its existence, been defined as a terrorist organization under the Patriot Act.)
It would even further decrease judicial review, and create fifteen new death penalty crimes, including "domestic terrorism:" If an antiwar protester broke the law during a demonstration, and someone died at that demonstration, the individual could be executed and the organizers charged with domestic terrorism. It would further limit public access to information, even previously public information under the Clean Air Act and other environmental protection laws.
To this day, Senate Republicans and the Bush administration are actively pursuing the extension and expansion of the Act, seeking, among other things, to permanently expand the FBI's surveillance and investigative powers to issue administrative subpoenas. This would give the FBI blanket authority to subpoena records from anyone alleged by them to be relevant to a "terrorism investigation," without being required to present any facts to corroborate the claim or even to get a judge's rubber stamp approval. As recently as May 27, 2005, the Bush administration continues to use the same rhetoric, saying that such an expansion of law enforcement power "provides the FBI with essential tools in fighting terrorism."(See note 11)
The proposed expanded version of the Patriot Act would give the government even more sweeping powers to increase domestic surveillance, solely in the discretion of the executive branch, and without judicial review. It would authorize massive surveillance of individuals and groups who are engaged in lawful, protected protest and free speech activities; terminate all state court consent decrees that limit police agencies from gathering information about individuals and organizations, basic civil liberties protections that had been won in a long series of "red squad" cases; allow even broader warrantless searches of libraries and bookstores; authorize warrantless wiretaps for up to fifteen days, at the sole discretion of the attorney general; and authorize secret arrests.
Meanwhile, some Congresspersons have expressed concerns over the foreseeable deterioration of Congressional oversight in light of the Act's proposed permanence. Concern over the potential repeal of the sunset provisions has been a bipartisan affair. Critics include Sen. Pat Leahy (D-VT) and Rep. Bob Barr (R-GA), who expressed dismay in that his original vote in favor of the Act was, in part, based on those sunset provisions.(See note 12)
On May 26, 2005, Oregon Democrat Senator Ron Wyden, a member of the Senate Intelligence Committee which is now secretly debating the elimination of the Act's sunset provisions, stated "You can fight terrorism ferociously without throwing people's rights in the trash can."(See note 13)
Does the scenario following September 11, 2001 sound familiar from history? In response to the profound economic and political crises of the 1930s, fascist regimes in Europe greatly strengthened the state's corporate power and used it to reward the wealthiest at the expense of the poor and working people, privatize much of the public domain, crush dissent, strip people of their constitutional and other individual legal rights, and create an illusion of strength and prosperity through continual and ever-expanding war.
This does not mean fascism is in power in the USA today. What it does show, however, is that fascism can take hold in this country as it did in Europe. It is therefore critically important that we not take such a threat lightly, and that we steadfastly use the rights we have to prevent such a development. (For a chilling warning of what can happen, see the essay by Thom Hartmann "When Democracy Failed: The Warnings of History," http://www.commondreams.org/views03/0316-08.htm, the web site of CommonDreams.org.)
It is important to realize that these new legal changes are not limited to non-citizens, people of Arab descent, or those suspected of actual terrorist activities. Rather, the Bush regime's "war on terrorism," handed to it by the appalling events of 9/11, is being used as a pretext to achieve a longstanding corporate/right wing "wish list." All of this is in lieu of fighting the daily terrors of American society: joblessness and increasing lack of job security; poverty and the lack of a living wage, even for those lucky enough to have a job; hunger; lack of universal health care; homelessness; widespread violence; racism; police brutality; corporate and government destruction of our environment, overwhelmingly in communities of color; a crisis in public education; and one of the highest infant mortality rates in the developed world.
Yet the Bush regime is exploiting the tragic events of September 11 to achieve its agenda—to increase corporate global wealth, wage war on working people, eviscerate fundamental Constituitional rights and crush dissent. We have much to fear from our government and the global corporate interests it serves. In the name of patriotism, the Bush regime is hypocritically pursuing a massive retrenchment of our basic constitutional protections in the name of patriotism.
Our rights to dissent, to protest, and to organize for social, economic and political change have already been seriously harmed. The struggles against poverty, racism and inequality, the fight for working people's rights, and many other forms of protected free speech activity have already fallen or will soon be ensnared in the broad net of "antiterrorism" as initially defined by George W. Bush and John Ashcroft, and carried forward by Ashcroft's successor Alberto Gonzalez.
Resistance and Hope
The current attack on Americans' legal rights is one of the most aggressive and draconian assaults on democracy we have ever seen, just as insidious as the tarring of movements for racial justice and social change in the 1950s as "communist" fronts in the dark days of the House Un-American Activities Committee.
But there is hope: Millions in this country and around the world have demonstrated that they will not tolerate the repression and threat to democracy that the Bush regime's measures represent. Seven state legislatures and 378 local and county governments have passed resolutions or ordinances upholding the rights and liberties of their residents.
Now is the time to renew our demands and build on our successes. Several organizations around the country are doing significant work to challenge the assault on fundamental constitutional rights, including the National Lawyers Guild, (www.nlg.org), the Center for Constitutional Rights, (www. ccr.org), the ACLU and the Bill of Rights Defense Committee (www.bordc.org).(See note 14) We must continue to speak out, dissent and insist on preserving our rights to protest and organize. Use those rights, or lose them.
Be afraid. Be very afraid. But be more afraid of what will happen if we do not speak, if we do not resist, if we do not fight back! We have much more to fear by our silence than by our dissent.
- Although not the topic of this article, a chilling example of the dangerous encroachment on privileged attorney-client communication was recently played out in the February 2005 conviction of criminal defense attorney Lynne Stewart. Stewart, an active member of the National Lawyers Guild, was prosecuted for "terrorism" after her conversations with her high profile client (one of those convicted of the 1993 World Trade Center bombing), were surveilled by federal agents. More information about this case can be found at www.nlg.org.
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- As recently reported, the FBI had been warned about at least two of the 9/11 hijackers several months before the attack, but did nothing to act on the information due to bureaucratic mishandling. "Report Details FBI's Failure on 2 Hijackers," New York Times, January 10, 2005: 1.
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- Patriot Act, para. 802; How the USA Patriot Act Redefines "Domestic Terrorism" (Dec. 6, 2003), available at www.aclu.org/NationalSecurity/NationalSecurity.cfm?ID=11437&c=11.
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- The aggressive strategy by the Bush regime to hurriedly push through the confirmation of ideologically right-wing judicial candidates for lifetime appointments to the federal bench, under threat of eliminating the long-standing right to filibuster in the Senate (i.e. the "nuclear option"), is the most recent example of the all-out effort to obliterate our individual Constitutional rights. Once seated, these judges have the ability to literally re-interpret the Constitution to wipe out many hard-won civil rights that have long been protected by federal courts.
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- Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, 107 P.L. 56, 115 STAT. 272, paras. 213-19 (2001) [hereinafter Patriot Act].
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- Ibid. See aso Michelle Mittelstadt, "Patriot Act's Reach Goes Beyond Terror; Prosecutors Using Law for Everyday Crimes; Critics Say Intrusive," Dallas Morning News, Sept. 8, 2003, available at nl.newsbank.com.
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- "Seeking Truth from Justice, Vol. I, Patriot Propaganda: The Justice Department's Campaign to Mislead the Public About the USA Patriot Act" (July 2003), available at www.aclu.org/SafeandFree; "Unpatriotic Acts: The FBI's Power to Rifle Through Your Personal Records and Personal Belongings Without Telling You" (Nov. 14, 2003), available at www.aclu.org/SafeandFree; Associated Press, Craig: "Congress Must Change Patriot Act," Oct. 15, 2003, available at www.ap.org. Congressman Bernie Sanders has introduced the Freedom to Read Act, which would repeal the provisions of the Patriot Act that authorize spying in public libraries, and library boards across the nation have passed resolutions and taken other steps to challenge the obvious chilling effect of these provisions.
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- Press Release, White House, President George W. Bush's State of the Union Address 2004 (Jan. 20, 2004), available at www.whitehouse.gov/news/releases/2004/01/20040120-7.html
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- Posting to email@example.com, "Senators Seek Repeal of Patriot Act Sunsets" (May 26, 2004), available at www.fas.org/irp/congress/2004_cr/s040804.html.
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- The bill was introduced on May 21, 2004, and its Senate Call Number is S.2476.
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- "Little Progress in Bid to Extend Patriot Act," Eric Lichtblau, New York Times, May 27, 2005, A16.
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- Senators Seek Repeal of Patriot Act Sunsets (May 26, 2004), www.fas.org/irp/congress/2004_cr/s040804.html
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- "Little Progress in Bid to Extend Patriot Act," op. cit.
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- The Michigan ACLU filed the first constitutional challenge to para. 215 of the Patriot Act in December 2003 and is still awaiting a decision from the federal district court in Detroit. The Bill of Rights Defense Committee is coordinating a "Patriot Days of Action" week, July 2-8, 2005, for community coalitions to organize locally as part of a coordinated national series of events and to hold in-district meetings with their legislators during the July Fourth recess in order to highlight concerns about threats to civil liberties posed by the Patriot Act and a host of other laws and policies that have provoked fears and harmed innocent people and families since September 11, 2001. The broad message will be unified by a demand to uphold the U.S. Constitution and Bill of Rights. More information about the "Patriot Days of Action" can be found at www. bordc.org.event.
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Julie H. Hurwitz, a Detroit civil rights attorney, serves as Executive Director of the National Lawyers Guild Maurice and Jane Sugar Law Center for Economic and Social Justice (www.sugarlaw.org).
ATC 117, July-August 2005