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.

"Our nation is made safer by good police work, not by legal shortcuts that insulate the executive and law enforcement from the oversight of the courts and the scrutiny of the press and voting public," New York CCR Staff Attorney Shayana Kadidal says. "The founders [of this country], who were great skeptics of human nature...built probable cause principles into our Constitution precisely because they understood this."

Of all the sections of the act, it is Section 215 that has drawn the most attention and scrutiny.

The opposition comes from a truly far-ranging set of opponents, ranging from gun-toting NRA members to mild-mannered librarians.

In essence, Section 215 grants the FBI the extraordinary power to obtain the personal records of any U.S. citizen as long as the related investigations "protect against international terrorism or clandestine intelligence activities."

Prior to the PATRIOT Act, the limit on national security investigations and their reach into personal records had to do with foreign powers or the (suspected or known) agents of foreign powers. Section 215 swept away that limit, making it possible for the federal government to gain as much information about a person as possible as long as the records are sought for a "national security investigation." An automatic and permanent gag order applies in all cases.

Further, the FBI's authority to access records had been generally limited to business records and credit transactions. Section 215 changed all that to apply to "any tangible things belonging to or held by any organization or person."

A June 2004 Freedom of Information Act (FOIA) request from the ACLU and other groups revealed the FBI had submitted an application to authorize action under the Patriot Act's Section 215, which can be used to get information about innocent people, including those not suspected of terrorism or spying, less than a month after Attorney General John Ashcroft stated publicly that the controversial section had never been invoked. To this day, it is unknown how many times the FBI has utilized its power under Section 215, or for what purpose.

Another similar but less talked about portion of the act, Section 505, gives the FBI similar powers, but with no judicial oversight whatsoever (although critics say the judicial process under 215 is really a rubber stamp with no real teeth as far as oversight). Under 505, any FBI field office can issue a "National Security Letter," giving agents access to all personal records of a targeted individual.

Under both 215 and 505, nothing is off limits. Medical histories, credit reports, magazine subscriptions, membership lists, bookstore purchases, airline reservations, social service files, library records, academic transcripts, psychiatric records, charitable contributions and even genetic information can be accessed. (Ashcroft admitted the latter when questioned by the House Judiciary Committee in June 2003.)

Representatives of the Justice Department have tried to spin Section 215 in particular in a number of ways to make it seem more palatable to American citizens. Over the past four years, Justice Department officials have, for instance, gone on the record saying that the section only applies to foreign intelligence; that U.S. citizens are exempt altogether from Section 215; or that the section only pertains to terrorism.

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).

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