Freedom Under Attack

A building at a Colorado ski resort explodes into flames. A secret organization claiming to oppose the ski resort’s expansion takes credit for the fire. In a matter of days a dozen environmental activists from Boulder disappear, taken by federal law enforcement.

Not charged with a crime, the activists are placed in solitary confinement on 23-hour lockdown in a federal prison. Their names are kept secret. No phone calls. No lawyers. No visitors.

Some are released after three months, others almost a year later. None is ever charged with a crime. In fact, all are eventually cleared. Yet their lives have been devastated by fear, lost income, lost jobs, lost housing, lost credits in college.

Civil libertarians say such scenarios could be part of America’s future if a collection of proposed changes to U.S. law -- known collectively as Patriot Act II -- become law. Drafted in secret by officials in the U.S. Department of Justice and leaked to the public last January, Patriot Act II would expand powers given to federal law enforcement under the USA PATRIOT Act (USAPA), which itself has fallen under fire for violating people’s civil liberties.

While Patriot Act II has already garnered substantial opposition from all points on the political compass, the task of combating it is made difficult by the fact that the Patriot Act II as such doesn’t really exist -- not yet, or perhaps not anymore.

In response to the early reaction to news of Patriot Act II, strategists at the justice department have repackaged various sections of the bill into other legislation, making the bill’s various components extremely difficult to follow, even for Washington insiders and watchdogs.

Meanwhile, U.S. Attorney General John Ashcroft continues his 20-state roadshow, defending the USAPA and stumping for the Vital Interdiction of Criminal Terrorist Organizations Act, or VICTORY Act, setting the stage for the biggest battle over civil liberties since the McCarthy era.

Laws and consequences

On Oct. 26, 2001, a mere six weeks after terrorists attacked the United States, a frightened Congress passed the USAPA, a 342-page bill that gave sweeping powers to law enforcement agencies ostensibly to keep Americans safe from terrorism. A highly complex piece of legislation, it increased government powers in areas that were previously restricted.

• It removes virtually all checks on the government’s ability to pry into records of people’s activities held by other organizations, such as libraries, hospitals, bookstores and credit card companies.

• It makes it much easier for the government to search private property without notifying the owner. This is known as the "sneak and peak" provision.

• It enables the government to conduct a physical search or wiretap on American citizens to obtain evidence of wrongdoing without first having to prove probable cause to a judge.

• It permits the government to perform "trap and trace" searches -- gathering addresses, telephone numbers and URLs that people contact -- with virtually no judicial oversight.

In the debate over Patriot Act II, it has become relevant for many to know what the government has done with the powers accorded it under the USAPA. But what the government has done with that power since then remains largely a mystery, despite numerous attempts on the part of legislators, press and citizens to hold the government accountable.

"It appears that the American people feel the government is intent on prying into every nook and cranny of people’s private lives, while at the same time doing all that it can to block access to government information that would inform the American people about what is being done in their name," complained Rep. William D. Delahunt, D-MA, during the House Judiciary Committee hearings last June.

Delahunt isn’t the only person to express frustration.

"We’re trying to find out how they’re using this new power, and that’s not even available," says Charlie Mitchell, legal counsel for the American Civil Liberties Union on national security and immigration. "We get bits and pieces. We got one document from the Department of Justice–it was six pages, every line blacked out."

While Ashcroft downplays concerns about lost freedom and secrecy in his controlled public appearances, there is plenty of evidence to prove those concerns are not unwarranted. Reports issued by the justice department itself -- one provided by Glen A. Fine, the justice department’s inspector general -- offer the public at least a glimpse into the government’s actions. The picture it paints isn’t pretty.

Among Fine’s findings was the fact that some 762 people were imprisoned in the wake of Sept. 11 in very restrictive conditions, some on 23-hour lockdown. Some were physically abused by being slammed into walls, while others were denied contact with attorneys. Every one of the 762 turned out to be innocent of any terrorist-related crime.

A 60-page report issued by the justice department to the House Judiciary Committee admits that measures passed for use against terrorists have been utilized in non-terrorism cases, including drug dealing, credit card fraud and theft. In one North Carolina case, a prosecutor is charging a man who produced methamphetamine with two counts of making a nuclear or chemical weapon. Regular meth charges might have landed him in jail for six months; the chemical weapons charge could get him 12 years to life.

DA Jerry Wilson revealed what critics see as a serious flaw of anti-terror legislation when he told the press that "there is nothing in the statute that requires any organized terror effort. There’s nothing in the statute that requires that these chemicals be used as weapons."

The justice department also admitted visiting some 50 libraries in the past year in search of individuals’ reading records -- not in cases of suspected terrorism, but in ordinary criminal cases.

This is not to mention the hundreds of individuals, who range in age from 13 to over 70, being held indefinitely at Guantanamo Bay, where there have reportedly been 32 suicide attempts. The U.S. military has kept a tight lid on information pertaining to the treatment of prisoners there, but it is well known that prisoners have been denied both constitutional protections and many of the rights guaranteed to prisoners of war under the Geneva Convention.

"All this stuff at Guantanamo Bay is ‘brave new world’ -- it has never come up before," says Richard Collins, a professor at the University of Colorado School of Law and administrator of the school’s Byron White Center for the Study of American Constitutional Law. "It’s clearly in violation of international law."

Confirmed and suspected abuses of power such as these have garnered both the USAPA and Patriot Act II widespread opposition from both Republican and Democratic lawmakers, civil libertarians, leftwing activists, rightwing militia members and ordinary citizens. Rep. Ron Paul, a Republican from President Bush’s adopted state of Texas, is a vocal opponent of both, as are U.S. Rep. Mark Udall of Boulder and U.S. Rep. Diana DeGette of Denver. About 158 towns and cities across the country have passed resolutions opposing provisions of the USAPA, along with Vermont, Alaska and Hawaii.

"Patriot I went through Congress so fast that it was difficult to get the public informed, and the media, quite frankly, did a miserable job of informing the public about what was going on," says David Kopel, research director for the Independence Institute, a pro-civil liberties think tank. "I think by now (people) have a sense that Ashcroft is bad on civil liberties. They couldn’t supply many details, but they know that there’s something there, and in that way they’re better informed."

While Kopel believes some U.S. government actions have made Americans safer -- by attacking al-Qaeda in Afghanistan and Saddam Hussein’s regime in Iraq -- he has serious concerns about the government’s plans to enhance current anti-terror legislation.

"We have moved the front line of the war on terror from New York City to Baghdad, so it’s much safer for the American people that the fighting is going on in Iraq rather than downtown Manhattan," he says. "At the same time I think much of the PATRIOT Act is not related to terrorism, so it certainly is not making us safe. And there are continuing attempts for people to further erode the Bill of Rights using terrorism as the pretext even for measures that have very little to do with terrorism. I hope the American people will stay informed about this and resist it as much as possible."

A veil of secrecy

When members of the Senate Judiciary Committee asked officials in the justice department about rumors of a Patriot Act II, they were told no such proposed legislation existed. A whistleblower proved that statement false by leaking a draft of the bill, then titled the Domestic Security Enhancement Act, to the public last winter.

Key provisions include the following:

• The definition of terrorism, which many feel is already too broad, would be expanded such that anyone committing a crime -- perhaps even acts of civil disobedience -- to influence government policy could be charged as a terrorist and face wiretapping, asset forfeiture and loss of U.S. citizenship.

• The government would no longer have to reveal the identities of anyone -- even American citizens -- detained during the course of a terror investigation until after criminal charges have been filed, no matter how long the person is in custody.

• Laws that limit local police from spying on religious and political activity would be repealed.

• Law enforcement would be able to obtain credit records and library records without a warrant.

• The government would be able to set up wiretaps without any court approval for up to 15 days after a terrorist attack.

• The government would restrict the release of information about "worst-case scenarios" posed by chemical plants, factories and other facilities.

• The government would have the power to extradite Americans to foreign countries even when treaties don’t allow for it.

• Legal immigrants would no longer be guaranteed a fair deportation hearing and would lose the option of appealing their cases to federal court.

The response to Patriot Act II has been scathing, raising concerns among lawmakers, activists and civil libertarians of all political stripes.

Kopel is concerned about many of the proposed changes, particularly those that would deny Americans the right to challenge detainment, known as habeas corpus, and those that would extradite Americans to foreign countries or strip them of their citizenship.

"To say that the government of Kazakhstan, or some other despotism which happens to have friendly relations with America, can infringe on the rights of Americans is just outrageous," Kopel says.

The broadened definition of terrorism is also a concern for him.

"The definition of terrorism under federal law is already overly broad, and this would make it worse," he says.

He acknowledges the possibility that activists, such as those who participated in demonstrations against the World Trade Organization and the International Monetary Fund in Seattle and Washington, D.C., could potentially be labeled terrorists.

"I think the thugs in Seattle and Washington, D.C., ought to be prosecuted, but we have existing laws on riots and assault and vandalism and similar things which are perfectly fine, and I don’t think you should lose your citizenship for participating in a riot," he says.

Activist Betty Ball says the use of anti-terrorist measures against activists would be nothing new.

"Scott McInnis was calling environmentalists ‘eco-terrorists’ long before 9/11," says Ball, a spokeswoman for the Rocky Mountain Peace and Justice Center. "It’s just a continuation… The difference is before we had the Constitution. If they succeed, this (strips away aspects of) our Constitution."

Ball says Patriot Act II would have prevented Daryl Cherney and the daughters of deceased activist Judi Bari from suing the FBI for the smear campaign the agency launched against them after the two were nearly killed when a bomb planted under Bari’s car seat exploded.

Patriot Act II would likely also have resulted in the detainment of several Boulder activists following the firebombing of the Two Elks Lodge at Vail. Boulder activists had been protesting the ski area’s expansion in Vail just days prior to the fire. The Rocky Mountain Peace and Justice Center, at which an FBI agent was caught doing a "sneak and peak" at addresses and phone numbers, would have easily been the target of data gathering and wiretapping.

"If it weren’t so serious, it would be laughable, because it’s absolutely ludicrous to be going to extreme measures," Ball says.

The price of freedom

Tracking Patriot Act II isn’t going to be an easy job. Mitchell says the colloquial label "Patriot Act II" received such a bad response that the bill was repackaged, its provisions tucked into other legislation.

"Pieces are in the VICTORY Act," says Mitchell. "Pieces are in other legislation."

The VICTORY Act, not yet in final form, contains four Patriot Act II provisions. In addition, the VICTORY Act would redefine many drug crimes as terrorism, linking the war on drugs to the war on terror and replacing the phrase "drug crime" with "narcoterrorism."

Mitchell says the data-mining provisions of Patriot Act II are now part of CAPPS II, Computer Assisted Passenger Prescreening System.

"CAPPS II is already being rushed through," Mitchell says. "That’s one of the worst. That’s the airline screening, which incorporates the data mining… Total Information Awareness. It’s just broken it up and relabeled it."

TIA, which was recently renamed Terrorism Information Awareness, is facing stiff opposition in Congress. It is a program, run by a secretive new government agency called the Information Awareness Office, the goal of which is to assemble a comprehensive computer database of human interactions and personal information in order to identify suspicious activity and individuals.

Mitchell says that the difficulty in trying to combat Patriot Act II is that its bits and pieces keep changing and shifting.

"We’re investigating and trying to stay on top of where all these pieces are coming through, and it’s sort of a continual assault, but it’s done under a veil of secrecy," he says.

Many critics argue that current laws ought to be adequate for the government to do its job against terrorism.

"I think we’re strong enough to be able to overcome this threat without in the process abrogating or narrowly limiting our freedoms," says Udall, who voted against the USAPA.

At the heart of objections against Patriot Act II is the concern that, once given power, government will abuse it.

"You make laws (keeping in mind) not just who’s in power today no matter how much you trust them, but you make laws for the long term," Kopel says. "When you have people like Richard Nixon or Bill Clinton get into power, there are people who will abuse power."

Kopel points out that laws restricting government activity arose out of known abuses.

"Those limits were put in place by many courts over the years in different jurisdictions based on specific findings of civil liberties abuses by those specific police departments," Kopel says.

Still, Kopel is hopeful that the potentially harmful provisions of Patriot Act II will never become law.

"I think to the extent that the media informs the public about this Patriot Act II, then they have some advance information if there’s some attempt to rush this through maybe after some future terrorist attack," he says.

Mitchell, on the front lines of confronting the proposed bills, is likewise hopeful.

"The tide is turning on this," he says. "I think we’re making headway. The longer that we keep up the public pressure on the PATRIOT Act, the less likely they are to get any parts of Patriot Act II in, and hopefully we can stop the second and beat the first."

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