One Nation, Under Watch

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

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 29th, the Senate reauthorization of the PATRIOT Act was approved by a process known as "unanimous consent." The week prior, the House majority voted to reauthorize the PATRIOT Act (257-171).

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.

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).

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