Constitutional Rights
Threatened
Implications of the USA PATRIOT Act
by Nancy Murray
December 2001/ January 2002
Volume 38, Number 10
Back in 1917 , as the US government was heading into the First World
War, Rose Pastor Stokes wrote a letter to a St. Louis newspaper which
stated: "I am for the people, and the government is for the profiteers."
She was sentenced to ten years in prison for sedition.
During the same year Robert Goldstein of Los Angeles made a film about
the American Revolution entitled "The Sprit of '76'. It depicted British
soldiers committing massacres and shooting women. He was fined $5,000
and given ten years in prison on the grounds that the film "tended to
question the good faith of our ally Great Britain and made us a little
bit slack in our loyalty to Great Britain."
After the war ended things didn't get much better as far as civil liberties
were concerned. The new fear was the threat of "Bolshevism." The young
J.Edgar Hoover was asked by Attorney General A. Mitchell Palmer to draw
up a list of radicals for the new FBI -- he soon had a card index of
200,000 names. The Attorney General then ordered raids on homes, meeting
places, pool halls and bowling alleys in some 33 cities, resulting in
more than 4,000 arrests. Over 200 immigrants (possibly as many as 1,000)
were deported. Here in Massachusetts, our Secretary of State Albert
P. Langtry stated about political radicals: "If I had my way, I would
take them out in the yard every morning and shoot them, and the next
day would have a trial to see whether they were guilty."
That was the mentality then -- is it so different now, some 80 years
later, as we face a war with no clear enemy and no foreseeable end?
Are we prepared to put the Bill of Rights in cold storage, and wait
until terrorism everywhere is over before trying to thaw it out?
Unfortunately, that is where things are tending. In the weeks after
September 11, intense lobbying efforts managed to stall Attorney General
Ashcroft's draconian Anti-Terrorism legislation. But after compromise
legislation was offered by the House Judiciary Committee, the USA PATRIOT
Act (an acronym for "Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism") was
rushed through Congress in late October before its 340 pages could be
read or its implications properly understood. In the Senate only Russ
Feingold of Wisconsin refused to vote for the bill. In the House, there
were 66 brave souls who stood out against the pressure to support the
legislation. This Act threatens undermine civil liberties on a scale
far surpassing the 1940s and 50s "Red Scare."
The legislation defines terrorism in very broad terms, so broad that
it could conceivably lead to a large-scale investigation of American
citizens for engaging in civil disobedience. The new category of "domestic
terrorism" means that demonstrators can morph into terrorists when they
engage in conduct that "involves acts dangerous to human life." You
can imagine where that leaves Vieques protestors, Greenpeace, and a
host of other direct action organizations.
The Act is a minefield for non-citizens: both lawful permanent residents
and shorter-term visitors to the country. Non citizens can be accused
of terrorist activity if they have used "a weapon or other dangerous
device...to cause substantial damage to property." That "weapon" might
be something as non lethal as a placard that accidentally broke a window
during a protest scuffle.
Non-citizens can be indefinitely detained if the Attorney General certifies
that he has "reasonable grounds to believe" that they are a danger to
national security, and some sort of charges are brought against them
within seven days. The charges do not have to be related to terrorist
activity. They could, for instance, be charged with overstaying their
visas.
Once the charges are brought, they could be imprisoned indefinitely
with a review by the Attorney General every six months. If after some
sort of a hearing they are ordered to be deported, but their country
of origin refuses to have them back, they could be detained for life.
How many countries are going to want to take back people the US wants
to deport as terrorists?
The law permits the Secretary of State to designate as "terrorist"
an organization that has at some point in its existence engaged in violent
activity. That organization does not have to be included on any special
list for a non-citizen to be punished (possibly with deportation) for
supporting some of its activities, however lawful they may have been
at the time, or for simply paying its membership dues.
The Act gives government agents draconian new powers to spy on both
citizens and non-citizens without meaningful judicial oversight, and
to widely share that information. Although one portion of the Act says
Americans cannot be investigated solely because of their First Amendment
activities, another section permits investigations based on First Amendment
grounds if that activity can be tied somehow to international terrorism
or intelligence work.
If you have been a critic of US foreign policy, and investigating you
is believed to be in the interests of "foreign intelligence" gathering,
judges simply rubber stamp warrants that permit law enforcement agents
to search your house and office and computer files without letting you
know until later, to tap your phones, to see which Internet sites you
visit, to intercept your email, to examine your mental health and financial
records and so on. It also greatly expands the ability of the government
to conduct surveillance and secret searches in criminal investigations,
without even having to show evidence of a crime.
I don't mean to imply that we should do nothing at all to improve security
in the aftermath of September 11. Clearly some things make a lot of
sense -- like overhauling airport security. Like getting the FBI and
CIA to shape up, to use the considerable powers they already have, to
overcome their bureaucratic inertia and entrenched turf issues, and
to stop dropping the ball.
The extent of the intelligence failure is laid bare by an article written
by David Rose that appeared in the British newspaper The Observer, and
was re-printed in the October 4-10 Guardian Weekly (UK). It states that
for four years leading up to the September 11 attacks, the government
of Sudan repeatedly offered security chiefs in the USA and UK "the chance
to acquire a vast intelligence database on Osama bin Laden and more
than 200 members of his al-Qaida terrorist network," including material
about their financial interests and plans. They were also given "an
opportunity to extradite or interview key Bin Laden operatives who had
been arrested in Africa because they appeared to be planning terrorist
atrocities." They refused all offers because the official US/UK policy
was to keep Sudan at arms length. A senior CIA source told Rose: "This
represents the worst single intelligence failure in this whole terrible
business. It is the key to the whole thing right now. It is reasonable
to say that had we had this data we may have had a better chance of
preventing the attacks."
As for the FBI, revelations of what the agency has been doing in Boston
should serve as a cautionary tale. It was recently revealed that FBI
agents knowingly put two innocent men in prison for over 20 years and
knowingly had two other innocent men incarcerated who died in prison.
Two FBI informants face charges of murdering up to 19 people while being
on the FBI payroll. In earlier decades the FBI brought us COINTELPRO
-- the Counter Intelligence program aimed at disrupting anti-Vietnam
War protests and the Civil Rights and Black Power Movements.
No, agencies like the CIA and the FBI do not need the enhanced power
to spy on citizens. The Attorney General does not need the unprecedented
authority to incarcerate indefinitely non-citizens. What they do need
is an enhanced respect for the Bill of Rights. We must let the Bush
Administration and our elected representatives know that we will not
be frightened into giving up our hard-won constitutional rights!
Nancy Murray is the Director of the Bill of Rights Education Project
at the ACLU of Massachusetts.
