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One Nation, Under Watch
By Silja J.A. Talvi, Santa Fe Reporter
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| 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." |
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).