Wen Ho Lee Next Time -- Patriot Act Threatens Asian Americans
Early last year in a meeting with civil rights leaders, Sen. Dianne Feinstein singled out the Asian American community as the one that would face the greatest threat to civil liberties in the foreseeable future. Because of the rise of China as a global threat, Feinstein explained, Chinese Americans and Asian Americans would be the target of increasing hate violence and government targeting similar to that experienced by Los Alamos scientist Dr. Wen Ho Lee.
Charged with violating atomic energy and espionage acts and suspected of passing secrets to China, Lee spent nine months in solitary confinement. Charges were dismissed on Sept. 13, 2000.
Nine days after the terrible tragedy of Sept. 11, 2001, the Department of Justice was already circulating a proposal to drastically expand its ability to investigate and prosecute those suspected of "domestic terrorism." It was quickly passed by a panicked Congress with little scrutiny or debate, even though there was little evidence that any of the new provisions under the so-called Patriot Act would have prevented the 9-11 attacks. Few dared to question the wisdom of yielding civil rights in the aftermath of the terrorist attacks. Many thought this "Patriot Act" would apply only to others: foreign terrorists or Arab Americans.
But in fact, many of the new federal powers had been on the Justice Dept. wish list before 9-11 and some of them likely were a response to the department's inability to fully effectuate their witch hunt of Lee. As a community that has been historically branded as perpetual and unassimilable foreigners, we Asian Americans need to critically question the motivation, necessity and reach of hastily passed legislation designed to target those suspected of "domestic terrorism."
Among the host of new powers, the Patriot Act broadened the reach of the Foreign Intelligence Surveillance Act (FISA) to include the right to physically search and spy on U.S. citizens without first obtaining a warrant. By allowing law enforcement to search or wire-tap citizens whenever they claim that national security is "a significant purpose" of the surveillance, the act cuts against long-standing constitutional guarantees of personal privacy and freedom from arbitrary searches.
In the case of Wen Ho Lee, the FBI had applied for and was denied a warrant under FISA because they had engaged in selective investigation and prosecution. If the Patriot Act had been in effect at the time, there would have been no independent review of the FBI's desire to tap Lee's phone or search his home. Without these procedural safeguards in effect, we can expect many more unwarranted invasions of our privacy and selective prosecutions.
Provisions of the act allow the government to search our homes without prior notice, broaden the government's ability to monitor our Internet and telephone communications, and expand the right of the federal government to detain, deport and deny fundamental due process rights to lawful immigrants, including the right to legal counsel and public hearings. Under the Patriot Act, Lee would not have had the right to a trial or to a lawyer, or the ability to confront the evidence or accusers against him. As in many fascist police states, Lee and other Asian Americans suspected of aiding foreign nations might simply be "disappeared," at the discretion of Attorney General John Ashcroft, never to be heard of again.
More than 1,200 such people have been imprisoned since 9/11, many of them up to a year now without ever being charged as criminals or terrorists. The Justice Dept. resists revealing their names or allowing questions about the validity of the evidence against them. And under the Patriot Act, they don't have to.
Some people will say that if we stop another 9-11, this sacrifice is worth it. The problem is that the Patriot Act adds no effective weapon to law enforcement's arsenal in the fight against terrorism. In fact, it virtually requires law enforcement and the INS to engage in meaningless exercises that can only hinder anti-terrorism efforts.
For example, after Sept. 11 the Justice Dept. mandated that all non-citizens submit a change of address form to the INS within 10 days of a move and now there are over 700,000 change-of-address forms flooding the INS, sitting in storage and awaiting processing. The INS has already wasted valuable time and resources deporting over 750 people for minor immigration violations, such as failing to submit the change of address form within the period allotted or overstaying a visa by one week. These are individuals the government could not and did not charge with any terrorist-related crimes.
Are we Asian Americans next?
According to one report, more than 30 percent of the Justice Dept.'s pending espionage investigations are against individuals with Asian surnames. We need to speak up as patriots against the erosion of our civil rights. Fighting a war in the name of democracy and freedom is meaningless if these ideas no longer have value at home.
PNS contributors Victor M. Hwang and Ivy Lee are attorneys for API Legal Outreach, a nonprofit that provides legal services for Asian and Pacific Islander people.