"[T]o those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends." --U.S. Attorney General John Ashcroft, December 6, 2001
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." --Benjamin Franklin
On December 7, 2001, Attorney General John Ashcroft accused critics of his sweeping proposed law enforcement package of "living in a dream world." A day earlier, he had claimed, as quoted above, that civil libertarians aided terrorists. It's hard to imagine that the framers of the Constitution would have seen things in a similar light.
The framers had lived through and fought in a struggle that was in many ways far more dire than the one we face today. As a cadre of revolutionaries, the signers of the Declaration of Independence faced execution if they failed. They fought a guerilla war against what was, at the time, the most powerful empire in the world. Vastly outnumbered in manpower and supplies, they surely understood the value of secrecy, a strong executive, and counter-intelligence.
Despite this experience, they created the Constitution and its first ten Amendments as a monument to the rights of individuals. Aware of the pressures governments face in times of distress and war, the framers nonetheless guaranteed to citizens the broadest set of liberties the world had ever seen.
This October, Congress passed a bill, the USA PATRIOT Act, that largely incorporated Ashcroft's recommendations; in doing so, it nullified large portions of the Bill of Rights. The big question is, "is it worth it? Is the threat to the United States' existence great enough to justify the evisceration of our most treasured principles?"
Ashcroft is not alone in his beliefs. Many Democrats and Republicans would also argue that in times of emergency, people must sacrifice some liberties for the sake of security. This is a false dichotomy. The reason that the Constitution has such extensive protections for civil liberties is not only because individuals deserve freedom and fairness, but because in the long run, liberties are a vital check that ensures the government is doing its job.
James Dempsey, deputy director of the Center for Democracy and Technology, writes: "[M]any civil liberties, far from being at odds with security, actually enhance the ability of the government to defend the common good. We guarantee the right to confront ones accusers, for example, not only as an element of human dignity but also because cross-examination exposes lies and forces the government to continue looking until the truly guilty party is found. Similarly, we subject government decisions to public scrutiny and judicial review not only to give voice to individuals but also because openness and accountability can produce a fuller factual record, expose faulty assumptions, and slow the rash decision making of elected officials acting under pressure. We protect freedom of speech not only because it allows room for personal self-expression, but also because it promotes the stability that comes from the availability of channels for dissent and peaceful change." For Dempsey's full piece, "Civil Liberties in a Time of Crisis," go to: http://www.abanet.org/irr/hr/winter02/dempsey.html
Here's how Congressman Dennis Kucinich (D-OH) described the atmosphere in Washington, D.C. after September 11th: "[T]here is great fear in our great Capitol. . . . The great fear began when we had to evacuate the Capitol on September 11. It continued when we had to leave the Capitol again when a bomb scare occurred as members were pressing the CIA during a secret briefing. It continued when we abandoned Washington when anthrax, possibly from a government lab, arrived in the mail. . . . It is present in the camouflaged armed national guardsmen who greet members of Congress each day we enter the Capitol campus. It is present in the labyrinth of concrete barriers through which we must pass each time we go to vote."
In this climate, Attorney General John Ashcroft pushed Congress to give law enforcement and intelligence agencies sweeping new powers. Any delay in passing this legislation, Ashcroft insinuated, would place the blame for a new terrorist attack on Congress.
These are hardly good circumstances for reasoned debate, and it's not a surprise that the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, better known as the USA PATRIOT Act, passed by a large margin: 98-1 in the Senate, and 356-66 in the House. At 342 pages, the final version of the Act was fully understood only by the people who crafted it. The nuts and bolts were worked out in all-night sessions, and the Act passed before Senators or Representatives (or even their staff) could possibly have read it.
Little was ever made of the fact that most of the provisions in the bill had been formulated years, and sometimes decades, in advance of 9/11. Both the Reagan and the first Bush Administration pressed Congress to pass similar legislation. Each time, Congress rejected the proposals on constitutional grounds. Nor did many Congresspeople point out that an alarming number of the provisions have little or nothing to do with fighting terrorism. Many of the new powers granted to the FBI and other agencies in USA PATRIOT are now available on any federal crime -- from mail fraud to fleeing across state lines.
These arguments notwithstanding, the USA PATRIOT Act will be with us at least until December 31, 2005. (Many, though not all, of the provisions will need to be re-authorized at that time.) Here are a few of the new powers that the Act gives the FBI and other government officials.
* Charge non-violent activists with "domestic terrorism" if they commit a criminal act "dangerous to human life" that appears to be aimed at changing government policy. (Section 802)
* Circumvent the Fourth Amendment strictures against "unreasonable search and seizure" if law enforcement agencies can claim that the gathering of foreign intelligence constitutes "a significant purpose" of their investigation. This provision re-authorizes domestic spying on government "enemies." And under this new arrangement, the target of surveillance is only notified of the intrusion if the evidence gathered is used against them in court. (Section 218)
* Do "sneak and peak" searches in which the FBI secretly enters your house while you're not there and takes, alters, or copies things. They need not tell you that they've been there for weeks or months. This new power is available for any federal crime -- falsifying a student loan application would count. (Section 213)
* According to the Center for Democracy and Technology, before the PATRIOT Act, "the FBI could get the credit records of anyone suspected of being an international terrorist. Under the new 2001 legislation, the FBI can get the entire database of the credit card company. It can go into a public library and ask for the records on everybody who ever used the library, or who used it on a certain day, or who checked out certain kinds of books. It can do the same at any bank, any telephone company, any hotel or motel, any hospital, and any university - merely on the claim that the information is 'sought for' an investigation to protect against international terrorism or clandestine intelligence activities."
* Spy on the web surfing of innocent Americans -- including the monitoring of search engines -- as long as the agency tells a judge that the information gathered might be "relevant" to an ongoing criminal investigation. Again, the person spied upon won't be notified that the spying has occurred.
* Encourage Internet Service Providers (ISPs) to voluntarily give all "non-content" data to law-enforcement officials, without notifying users. AOL, for example, could turn over the list of websites each user has visited.
* Add samples to a DNA database for anyone convicted of "any crime of violence." If you have a fistfight with a federal officer, your DNA would be kept on file. (Section 503)
For many people, the consequences of such incursions are difficult to imagine. But these new powers present real dangers to everyone, not just those people who are suspected of terrorism. Law enforcement officials have always claimed that they'll only use their powers to prevent evil, but the Constitution offers protections for civil liberties because government is fallible. In the hands of a single rogue agent, the vast information-collection abilities and lack of judicial oversight afforded by PATRIOT could be tools for blackmail, extortion, disruption of political activities, or worse.
Another danger is that the vast databases of information that will be assembled under PATRIOT could fall into the wrong hands. Government computer security routinely fails audits, and many agencies got a D or F on the last sweep. FBI computers have been compromised by hackers in the past. Given the value of the information the Bureau will be collecting -- potentially, the credit records of every American, lists of purchases, library books borrowed, and so forth -- the databases are likely to be a prime target. One slip-up, and that information could be made available to the entire world.
In response to PATRIOT, cities from Cambridge, MA to Berkeley, CA have endorsed resolutions re-affirming the Bill of Rights. The city of Northampton, MA officially asks that "federal and state law enforcement report to the local Human Rights Commission all local investigations undertaken under aegis of the [USA Patriot] Act and Orders; and that the community's congressional representatives actively monitor the implementation of the Act and Orders, and work to repeal those sections found unconstitutional."
As mentioned above, many of the provisions of the Act will need to be re-authorized in 2005. But, as the Electronic Frontier Foundation notes, "there is no way for Congress to review how several of these key provisions have been implemented, since there is no reporting requirement to Congress about them and no requirements of reporting even to a judge about several others." In other words, if there are abuses of these newfound powers, Congress will have to trust the FBI's own internal investigators to disclose them.
More on the Act:
"Right, Center, and Left Support Free and Open Debate in Wartime: Dissent Does Not Give Aid, Comfort to Enemy." Remarks by a vice president of the conservative Cato Institute. http://www.9-11peace.org/r2.php3?r=64
The Electronic Frontier Foundation's analysis of USA PATRIOT: http://www.9-11peace.org/r2.php3?r=65
The Center for Constitutional Rights: "What's So Patriotic About Trampling on the Bill of Rights?" http://www.ccr-ny.org/whatsnew/usa_patriot_act_5.asp
The American Civil Liberties Union (ACLU): "USA Patriot Act Boosts Government Powers While Cutting Back on Traditional Checks and Balances" http://www.aclu.org/congress/l110101a.html
Since the post-9/11 crackdown on civil liberties began, it's been interesting to watch the Administration's reluctance to extend their scrutiny-and-security measures to one area in particular: offshore tax havens that frequently facilitate not just tax evasion and drug-money laundering, but also the funding of terrorists. Apparently, the civil-liberties sacrifices Americans are supposed to make don't extend to the liberty to manage large sums of money in total secrecy.
A June 2001 _Nation_ article by Lucy Komisar discusses the new administration's pullback from earlier efforts to work with the international Organization for Economic Cooperation and Development (OECD) to clamp down on offshore tax havens: http://www.thenation.com/doc.mhtml?i=20010618&c=1&s=komisar
An _International Herald Tribune_ article by Jermyn Brooks (Oct. 2001) discusses the relationship of lax financial regulation, money laundering, organized crime, and terrorist funding (PDF file): http://www.9-11peace.org/r2.php3?r=66
"Let the terrorists among us be warned, if you overstay your visas even by one day, we will arrest you." --U.S. Attorney General John Ashcroft (again), October 25, 2001
The first section of the Fourteenth Amendment of the U.S. Constitution reads, "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." You'll notice that the Amendment makes a distinction between persons and citizens. When the Amendment was written after the Civil War, its framers explicitly intended to protect the rights of immigrants and non-citizens, under the belief that due process and equal protection were fundamental rights that should be accorded every person. The PATRIOT Act and other post 9-11 immigration ordinances seem to forget that immigrants are "persons."
Despite this constitutional protection, immigrants have always been in a precarious position under U.S. law, and lawmakers have often used situations of war or emergency to justify taking away immigrants' rights. While many of the provisions of PATRIOT appear to be aimed at prosecuting terrorist activity, they make it even more dangerous for non-citizens to engage in any political activity. And if non-citizens slip up, they can easily fall into a procedural black hole in which they can be detained indefinitely and denied basic Constitutional rights -- among them, the right to due process and the right to trial by a jury of one's peers (or indeed trial at all). As James Dempsey pointed out above in the "One Link" section, these rights not only ensure fairness for the people convicted, but also ensure that the government is accountable for its actions.
Among the parts of PATRIOT that target immigrants are provisions that:
* Allow the government to imprison, potentially for life, with no trial, non-citizens who are not terrorists, simply because they've violated minor visa laws and their country of origin won't allow them to return.
* Give the Attorney General and the Secretary of State the ability to designate, with little judicial review, any domestic group as a terrorist organizations and deport any non-citizen who belongs to them.
* Expand the term "terrorist" to include any crime in which the perpetrator uses a "weapon or dangerous device (other than for mere personal monetary gain)." In other words, a non-citizen who pulls a knife in an altercation could easily be labeled a "terrorist."
* Also expand "terrorist activity" to include soliciting funds or membership for an organization that's on the Attorney General's blacklist, even if the organization has legitimate humanitarian ends and the non-citizen only intends to support those ends. Essentially, this provision offers "guilt by association."
* Allow for the deportation or imprisonment of any non-citizen who associates with any group of two or more that threatens to use force.
* Make it possible for the Attorney General to lock up immigrants on mere suspicion, without any hearing. The Department of Justice has refused to offer any information on the thousands of people imprisoned for weeks and months after September 11th; it won't even disclose what they were held for. (It's likely that many people are still imprisoned, although no one knows how many.)
One of the problems with the "guilt by association" provisions of the Act is that its nearly impossible to guess which organizations will be on the Attorney General's blacklist of terrorist organizations. For example, the Irish Republican Army (IRA), which has routinely committed violent acts against civilians in the past, is not on the list. But the People's Mujahedeen Organization of Iran, a moderate and democracy-oriented group pushing to do away with Iran's theocracy, is on the list, as a State Department favor to Iran. (Over 200 representatives and 28 Senators protested the listing, but to no avail.)
As a result of these provisions, a prudent immigrant -- especially one who fled his or her country for political reasons -- will steer clear of all political activity, because it's simply too easy for any political group to be labeled "terrorist." The dream many immigrants share of coming to America, a country in which people can speak and act without risk of punishment, no longer has a basis in reality.
More on the PATRIOT Act and Immigration:
"Colin Powell Has a List. And, Trust Me -- You Don't Want to Be On It," an article published by Robert Dreyfuss in The Nation. http://www.thenation.com/doc.mhtml?i=20020325&s=dreyfuss
"How the USA PATRIOT Act Permits Indefinite Detention of Immigrants Who Are Not Terrorists," a briefing by the ACLU: http://www.aclu.org/congress/l102301e.html
A recent Washington Post article, "Supreme Court Closes Terror Hearings, Ruling Preserves Government Effort to Secretly Detain Foreigners," that discusses the secret hearings of non-citizens. http://www.9-11peace.org/r2.php3?r=67
"We must mark [Martin Luther King] now, if we have not before, as the most dangerous Negro in the future of this Nation from the standpoint of communism, the Negro, and national security ... it may be unrealistic to limit [our actions against King] to legalistic proofs that would stand up in court or before Congressional Committees." --William C. Sullivan, head of the FBI's COINTELPRO program, August 28 1963
In times of crisis, Congress has often enacted legislation that gives law enforcement and intelligence agencies broader privileges. Although these privileges have occasionally been used to foil criminals, they've been misused often enough that there are serious questions about whether the convictions outweigh the mischief.
In 1996, the Antiterrorism and Effective Death Penalty Act, passed in the wake of the Oklahoma City bombing, introduced greater powers for law enforcement and harsh restrictions on immigrants' rights. As Georgetown University professor David Cole notes, "the much-touted gains in law enforcement powers produced no visible concrete results"; in fact, the principles of the Act "were shown in case after case to be both unconstitutional and ineffective in the fight against terrorism."
There's little to indicate that the PATRIOT Act won't have a similar fate. Up to now, out of the thousands of people arrested, only one faces a criminal prosecution, and the evidence against him is scant, at best.
Besides being ineffective, there is a repeated pattern of high-level government misuse of surveillance and law enforcement powers. Most famously, the FBI's COINTELPRO (Counterintelligence Program), supervised by director J. Edgar Hoover, spied on hundreds of peaceful social protest groups. The report of a Senate investigation of COINTELPRO says that the program was intended to "disrupt" and "neutralize" target groups and individuals. The Church Committee report was based on the study of more than 20,000 pages of Bureau documents, depositions of many of the Bureau agents involved in the programs, and interviews of several COINTELPRO agents.
As indicated in the quote above, Martin Luther King was one of the primary targets for COINTELPRO. FBI agents went so far as to send anonymous letters to King, trying to get him to commit suicide. According to the author of the article below, the FBI sought to "replace him 'in his role of the leadership of the Negro people' with conservative Black lawyer Samuel Pierce (later named to Reagan's cabinet)." http://mediafilter.org/MFF/USDomCovOps1.html
The Church Committee report concluded, "The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile foreign power. . . . Groups and individuals have been harassed and disrupted because of their political views and their lifestyles."
In the wake of the Church Committee findings, Congress passed legislation to stop the FBI from spying on and interfering with legitimate domestic political groups. Now, much of that legislation has been repealed.
As Frank Church, convener of the Committee, said, "We must remain a people who confront our mistakes and resolve not to repeat them. If we do not, we will decline. But if we do, our future will be worthy of the best of our past."
More on the historical record of government abuses:
A law suit filed by the San Francisco Chronicle under the Freedom of Information Act in 1985 forced the FBI to release 200,000 pages of confidential records about a covert campaign to undermine the liberal faculty members of the University of California. http://www.9-11peace.org/r2.php3?r=68
"Trust Us, We're the Government." The ACLU offers a sampling of cases in which government has abused domestic surveillance powers and violated the Bill of Rights. http://www.aclu.org/news/2001/n101001a.html
On the afternoon of September 11th, critics began bashing the Church Report and Frank Church himself. In the article below, Chris Mooney refuted much of the criticism, and gives concrete referenced information to show how very mainstream and concerned about security Frank Church was. http://www.prospect.org/print/V12/19/mooney-c.html
all the enemies to public liberty war is, perhaps, the most to be dreaded
because it comprises and develops the germ of every other. War is the
parent of armies; from these proceed debts and taxes. And armies, and
debts, and taxes are the known instruments for bringing the many under
the domination of the few. In war, too, the discretionary power of the
Executive is extended. Its influence in dealing out offices, honors,
and emoluments is multiplied; and all the means of seducing the minds,
are added to those of subduing the force of the people. The same malignant
aspect in republicanism may be traced in the inequality of fortunes,
and the opportunities of fraud, growing out of a state of war...and
in the degeneracy of manners and morals, engendered by both. No nation
could preserve its freedom in the midst of continual warfare."