Uphold the constitution? Free Dating, Singles and Personals

Uphold the constitution? Posted: 5/8/2008 9:48:22 AM
. Hmm I read it when it first hit the streets and I suppose it is possible that I dislexictized it on some points after all this time as I have read what seems like zillions of miles since. I have to give you credit however as you are probably one of a very few who actually took the time to look. GFY! Somewhere in my archives I saved the one I read and I do not have it immediately avail so I just did a quick goog and came up with this for your perusing enjoyment; The Usa Patriot Act: One Year Later Part I by C. William Michaels and Jennifer Van Bergen t r u t h o u t \| Report Thursday, 14 November, 2002 On October 26 America observed a dubious anniversary--one year from the signing by President George W. Bush of the USA PATRIOT Act. The year has been an eventful one for all those concerned about the direction of the country and about civil liberties. Unfortunately, it also has a been a year when those who have followed developments since the PATRIOT Act have seen the formation of trends which, left unchecked, may fulfill the most dire predictions of those who have taken a long look at this comprehensive statute. Among those predictions are the relative absence of judicial review of the Act, the bold movement by federal investigative and law enforcement agencies to utilize the substantial powers granted to them by the Act, the distraction of Congress on other matters muting Congressional oversight of these governmental agencies activities, and the complacency of large segments of the American public. The combination does not bode well for civil liberties or the national direction, especially given that the vast majority of the PATRIOT Act is permanent. A Review of the Act and Themes The USA PATRIOT Act stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." It was enacted by Congress virtually without significant debate, without detailed committee reports, without a conference committee, and with little floor commentary. Submitted just several days after the September 11 (2001) attacks, it was rushed through Congress at lightning speed for a statute of its size and complexity. It passed the House on October 24, 2001 by a vote of 357 to 66, and passed the Senate the next day, October 25, 2002, by a vote of 98 to 1. It was signed into law by President Bush the following day, October 26, and is now the law of the land. The PATRIOT Act contains more than 150 sections. It is divided into ten separate Titles and is hundreds of pages long. The powers it grants to federal investigative agencies are unprecedented and reach everything from voice mail to consumer reports to banking records. It is highly doubtful that a statute as extensive as this could have been written from scratch while at the same time moving through Congress in a mere 45 days. Consider that the Homeland Security Act, considerably less extensive than the PATRIOT Act, is still bogged down in Congress after months, in limbo due to wrangling between the White House and the Senate over certain aspects such as internal structure and employee protections. The PATRIOT Act received no such attention yet its effects are tremendously more wide ranging. Numerous activists groups such as ACLU, Center for Constitutional Rights, and others, sounded the alarm about the Act soon after it was introduced. However, the sea change in political climate which occurred virtually overnight after the September 11 attacks made the Act virtually unstoppable. Congress was determined to send a message to the terrorists and to give the White House what it wanted. The real question is what message ultimate will be sent and to whom. And it has become quite apparent that what the White House wanted by way of the PATRIOT Act is not necessary to effectively deal with the causes and incidents of terrorism. In fact, to date, no person has been arrested in the United States and charged with direct involvement in the September 11 attacks. There was little to be done except watch as Congress enacted this monstrous statute. The American people will now be living with it for years to come. Many misconceptions have arisen about the PATRIOT Act: it will sunset in a few years, the granted only limited authorities to federal agencies, it deals only with aliens or foreign nationals, and it is restrictive in length and scope. That is not so. The situation is far worse. Only very selected portions of the Act will sunset in 2005, the authorities it grants are massive, its reach conceivably can include every American, and it contains extremely extensive and detailed provisions. Of course, since September 11 there have been many other related developments: the military tribunals, the Office of Homeland Security, bioterrorism legislation, the new wave of aviation security, the globalization of the "war on terrorism," dramatic increases in surveillance of the public, skyrocketing military spending, the war in Afghanistan, and impending war with Iraq. Discussion of those would take us too far afield for present purposes since these developments have occurred parallel to but do not arise directly from the PATRIOT Act. That does not leave us wanting. There is still plenty to review. The Act is among the most wide-ranging laws passed by Congress in recent memory, bringing new federal offices into being, creating new crimes, amending--in many cases substantially--at least 12 federal statutes, mandating dozens of new reports and regulations from agencies in four Cabinet Departments, and directly appropriating $2.6 billion (with more funding to come from approval of various "authorizations" of unnamed amounts, scattered throughout the statute). At the outset, it may be worthwhile to list the Act's ten Titles, as a way of noting its grand scope: Title I: Enhancing Domestic Security Against Terrorism Title II: Enhanced Surveillance Procedures Title III: International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (which has three subtitles and is by far the longest Title, representing the bulk of the Act's language) Title IV: Protecting the Border Title V: Removing Obstacles to Investigating Terrorism Title VI: Providing for Victims of Terrorism, Public Safety Officers, and Their Families Title VII: Increased Information Sharing for Critical Infrastructure Protection Title VIII: Strengthening the Criminal Laws Against Terrorism Title IX: Improved Surveillance Title X: Miscellaneous Going through these Titles and their sections, several themes appear consistently. Among them are: expansion of existing law, information sharing between federal investigative agencies, greater abilities for federal investigators to collect and utilize information, vigorous use of existing definitions of "foreign intelligence" and "terrorism," targeting of aliens as suspect groups, greatly increased surveillance and prosecutorial powers, enhanced visibility and responsibility of the entire intelligence community, and limited judicial review. These themes certainly have marked the use of Act's powers by federal agencies in the past year. A Tour Through Act Highlights It is not possible in this limited space to describe each of the Act's ten Titles, although just a review of the title names themselves provides a sense of how extensive the PATRIOT Act is. Unfortunately, most of the attention paid to the Act in the general media and by most activist groups has been devoted to Title II and Title VI, which means eight of its Titles have received relatively little comment. Without getting too involved, a brief tour through some of the Act's highlights will underscore concerns raised so far and point out areas that to date have been effectively overlooked: Section 101--Establishes a new counterterrorism fund without fiscal year limitation and of unnamed amount, to be administered by the Justice Department for its own use. Section 103--Re-invigorates the Justice Department's "Technical Support Center" (established by the Anti Terrorism and Effective Death Penalty Act of 1996) and gives it $200 million for each of the next three years, 2002 through 2004. Section 105: Establishes a "national network of electronic crimes task forces" to be set up by the Secret Service throughout the country to prevent, detect, and investigate various electronic crimes "including potential terrorist attacks against critical infrastructures and financial payment systems"--which can mean a wide variety of computer crimes. Section 203: Mandates information sharing, including of previously secret grand jury testimony, between any number of federal agencies so long as the information involves "foreign intelligence"--using the broad definition of that term found in the Foreign Intelligence Surveillance Act (FISA), a definition which includes the following: "information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to the national defense or the security of the United States or the conduct of the foreign affairs of the United States." Such information which is in the possession of any federal investigative or law enforcement officer or attorney can be shared--without any court review or involvement--with any other federal "law enforcement, intelligence, protective, immigration, national defense, or national security official." Section 218: Changes the scope of warrants under FISA from foreign intelligence being "a purpose" to "a significant purpose" of the investigation and so lowers the standard for obtaining a FISA warrant (assuming such warrants were difficult to obtain in the past and that most definitely has not been the case). Note that an investigation under FISA even though it usually involves foreign nationals or aliens does not have to be so restricted, and under the broad definition of "foreign intelligence" can include United States citizens. Sections 207 and 208: Increases the duration of FISA warrants and boosts the number of FISA court judges. Section 209, 212, 215, 216: Sets into motion numerous technical changes and enhancements for standard surveillance techniques, for example, taking voice mail out of the requirements of wiretap statutes, and authorizing the use of "Carnivore" type electronic computer surveillance programs. Section 212: Provides for voluntary and required disclosures to federal investigators by firms such as Internet service providers. Section 213: Allows delayed notification of "non-physical search and search warrants" (known as sneak and peek warrants) generally used in FISA investigations but could be used in other investigations. Section 215: Allows access to "any tangible thing" for federal investigators in FISA-type investigations. Section 219/220: Sets up single jurisdiction search warrants and nationwide service of warrants. Section 311: A highly technical section allowing for federal investigators, in certain conditions, to impose extreme "special measures" upon any domestic bank or financial institution, seeking information related to terrorist financing. Section 312: Another detailed provision imposing upon banks and domestic financial entities new "minimal" and "enhanced" due diligence requirements on certain accounts, as a way of revealing possible use of accounts for terrorist financing (exhaustive Treasury regulations and other directives already have been issued on the requirements of Sections 311 and 312). Section 319: Sets a 120-hour deadline for financial institutions to respond to certain information requests by federal investigators involving wide range of accounts. Section 316 and 319: Creates new forfeiture provisions for those charged or convicted of certain terrorist crimes especially including money laundering, setting forfeiture authorities virtually unheard of in federal law to this point. Section 319: Permits access by federal investigators of records of certain "correspondent" accounts with foreign banks. Section 326: Establishes new or expanded requirements to track identities of persons opening new bank accounts. Section 326: Authorizes a study to track aliens or foreign nationals by a system similar to social security numbers. Section 358: Allows government investigator access to consumer records, which does not require a court order and is to be provided in secret and without civil liability. Section 361: Establishes or expands the "FinCEN" office in the Treasury Department, accompanied by a long list of duties for this office and substantial funding. Section 403: Mandates a dramatic new information system to allow State Department access to certain criminal files kept by the FBI (such as NCIC-III files). Section 403: Requires a new technology standard to be applied to visas and all border checkpoints, including biometric methods. Section 414-417: Sets up new standards and studies for entry and exist systems and data systems for border entry points, including machine-readable passports. Section 411: Creates a new definition of terrorism for this Title, notably establishing three separate types of "terrorist organization" with wide latitude by federal investigations such as in the State Department to "identify" these terrorist groups. Section 412: Provides for mandatory detention of suspected aliens, lists seven bases for such detention, allows for a person to be held for seven days without any charge, permits possible indefinite detention for aliens deemed not removable, and ensures limited court review. Section 412: Requires biannual report to Congress on aliens detained, but this report is not required to contain essential information such as name, when seized, where detained, or nature of charges. Section 416: Expands, with increased funding, the foreign student monitoring program. Section 503: Greatly expands the DNA information bank as to criminals, which now will include any crime of violence and all terrorist crimes. Section 504: Links investigation of any crime with search for foreign intelligence, for purposes of information sharing. Section 505: Allows government investigators access to consumer reports, without court order, also to be produced in secret and without civil liability. Section 507 and 508: Allows government investigators access to educational records, without court order. Section 701: Establishes a major initiative for a "secure information sharing system" to assist all law enforcement agencies, and this would include State and local agencies, to investigate and prosecute multi-jurisdictional terrorist conspiracies and activities. Section 802: Creates new crime of "domestic terrorism." Section 803: Expands or clarifies the crimes of harboring, concealing, or providing material support for terrorists. Section 808: Expands the extensive list of "federal crime of terrorism" which now includes certain computer crimes. Sections 809-812: Provides for no statute of limitations for certain terrorist crimes, and allows increased penalties--including "supervised release" similar to parole in federal system, which now can be up to life (unheard of in federal sentencing system until now). Section 901: Mandates information sharing by CIA to Justice Department. Section 903: An unusual Section which deputizes all "officers and employees" of the "intelligence community" (13 agencies) and turns them into mini-CIA to investigate terrorism. Section 905: Mandates information sharing by Justice Department and similar law enforcement agencies to CIA. Section 908: Sets up an ongoing cross agency training program for various law enforcement officials and agencies, including State and local, so they can better recognize "foreign intelligence" material, information, or evidence in their criminal surveillance or investigations. Section 1005: Provides grants for State and local fire and emergency response departments, under the "First Responders Assistance Act," which grants can include technology and equipment for intelligence gathering and analysis, and funds the program at $25 million for fiscal years 2003 through 2007. Section 1016: Establishes new programs for critical infrastructure protection. The Record So Far With these greatly expanded powers, covering a long list of new authorities and mandates, federal agencies have been busy. In the Justice Department, information sharing protocols authorized by the PATRIOT Act were recently issued by Attorney General John Ashcroft. These protocols make it clear that the Justice Department will use to the fullest extent, the authorities granted to it by the Act. Among this information sharing is communication by Justice Department personnel to intelligence personnel within 30 days on whether a criminal investigation will be launched based on a given crime report, if the crime report indicates that foreign intelligence may be involved. New FBI guidelines on undercover operations have been announced which roll back permitted FBI activity to a activities of nearly 30 years ago that were the subject of widespread criticism. New federal investigative task forces are being created, with Justice Department in the lead, including identification by the United States Attorney for each judicial district of members of a terrorist task force which can be quickly assembled from local federal agency personnel when the need arises. Also, there are several ongoing cross agency task forces to investigate terrorism or terrorist financing such as Operation Green Quest. The Treasury Department has issued tremendously detailed regulations for Title III's new requirements for banks and other financial institutions. Title III has effectively rewritten many banking laws and introduced new requirements to the point that domestic bank are virtual partners with the federal government in investigating financial aspects of terrorism. Spurred by PATRIOT Act authority to investigate any forms of money transfer that may be linked to terrorism, new arrests and detentions have been made by federal agents of principals of certain targeted charitable groups which send money abroad, especially to the Middle East, shutting these organizations down under the guise of investigating terrorism. The State Department, on its own or through Executive Order, has identified a whole new list of terrorist groups. Cooperating with the INS, FBI and in some instances CIA, information sharing has gotten to the point where a suspected terrorists can be arrested or rounded up by any number of these agencies. The State Department has cooperated with the INS (in the Justice Department) to round up thousands of aliens suspected of terrorism, although most have been either released, given minor charges, deported on visa or other technical violations. In August, 2002, a federal court (Judge Gladys Kessler) ruling in favor of various groups who sued the Justice Department and the INS demanding information on detainees, recently ordered the government to release the names of the remaining detainees (as many as 150). But the government has refused to do so citing national security concerns and has sought a stay of the order pending appeal. The PATRIOT Act has given not only new authorities but also a new hubris to federal investigative agencies. Its emphases on information collection, information sharing, expanded definitions, new regulations, cross-agency cooperation, wider authorities, enhanced surveillance techniques, swifter prosecutions, and more severe sentences have brought law enforcement and terrorism investigation in America to new levels. Unfortunately, Congress, having handed over such tremendous authorities to the Executive Branch, has spent little time reviewing what it has wrought. But the PATRIOT Act cannot fade into the distance. It is very much with us, and its effects have not yet totally been felt. Although many watchdog groups and organizations are turning their attention to other things, we cannot totally turn our backs on these developments. The second Part of this two part article will take a look at some emerging trends and note items for special attention in the foreseeable future. ------ C. William Michaels is an attorney and writer in Baltimore, Maryland. His just released book, No Greater Threat: America After September 11 and the Rise of a National Security State (Algora Publishing NYC, 2002) contains a review and analysis of the entire USA PATRIOT Act. The book is available from Barnes & Noble and Amazon.com. For more about the book and the author, go to www.nogreaterthreat.com Jennifer Van Bergen is a graduate of Cardozo School of Law in NY and is on the faculty of the New School University in New York. Her six part article series for "truthout" "Repeat the PATRIOT Act" in April-June 2002 was one of the first widely distributed and detailed public commentaries on the statute. She is a columnist for truthout. The Usa Patriot Act: One Year Later Part II by C. William Michaels* t r u t h o u t \| Report Thursday, 14 November, 2002 The first part of this two-part article on the occasion of the first anniversary of the USA PATRIOT Act, looked at the background of the statute and reviewed some of its more significant sections among its very extensive ten Titles. This second part will review some of the trends occurring as a result of the USA PATRIOT Act and also identify some developments which will require attention in the foreseeable future. Some Resulting Trends There are any number of new trends and developments to be identified as coming directly from the PATRIOT Act itself. Of course, we cannot ignore numerous other developments, such as the Office of Homeland Security, dramatic new aviation security measures, several ominous national trends, and the impending war with Iraq, but unfortunately they are outside the present discussion as not being directly related to the PATRIOT Act. As to the Act, least 10 such trends could be noted, and they all deserve increased attention. 1. Reduced judicial review. The entire PATRIOT Act is designed for increased surveillance, information gathering, and investigation, of terrorism with a minimum of judicial review. Investigations under the Foreign Intelligence Surveillance Act (FISA) can be expanded and notification of sneak and peek warrants can be delayed. The FISA court which reviews and grants these warrant requests has refused perhaps 1 in its entire history, granting 12,178 warrants of 12,179 requests. Under the PATRIOT Act, mostly under Title II, investigators can obtain information ranging from consumer reports, certain phone data, certain details from Internet service providers, educational records, and banking transactions, all without a court order. All that is required is a certification by a federal investigator that the information is necessary or required for a particular investigation, which does not even reach the standard of probable cause that is required with ordinary search and seizure warrants. There is no opportunity for judicial review of these information gathering activities since in general the information obtained is obtained in secret and the Act provides that the person or entity providing the information is immune from civil liability. The Act's establishment of single jurisdiction search warrants and national service of search warrants effectively means that federal investigators only have to stop by to one federal district court to obtain a search warrant for a particular investigation. Investigators will not be required to further justify their information request and continue to meet search warrant standards in any other federal court even if the investigation goes into other jurisdictions. This is "one stop shopping" for federal search warrants and essentially takes the federal courts out of the loop. The information sharing which will go on--and in fact is mandated--chiefly by Titles II and IX are conducted by and large without any judicial review. In those limited instances where judicial review might be involved, such review is limited to specific challenges and those challenges can be delayed at the request of the government. The very extreme and detailed "special measures" which under Title III can be imposed by federal investigators upon domestic banks and other financial institutions are completely unprecedented in the history of federal banking regulation and represent a total rewrite of banking law. Yet these "special measures" can be submitted to banks by investigators once various required "certifications" are made by the Treasury Department, without any condition for a court order or court review. In fact, the Act does not even provide for a court review or challenge to a "special measures" order once imposed--and any given "special measures" order can last for 120 days. There is no provision in the Act for court review of the information which federal agencies can require from banks or financial institutions under the 120-hour rule established by the Act. In fact, no court would be able to review and properly pass upon the propriety of the information required, in that span of time. Title IV of the Act identifies three types of terrorist organizations: "Section 219" designations of terrorist groups borrowed from existing immigration law, terrorist groups identified by the government under a similar procedure but with fewer requirements and no express judicial review, and a wide-ranging category of any group of two persons or more "whether organized or not" which engages in any of the broadly-defined list of "terrorist activities." Yet only one of them (adopting the "Section 219" designations from previous immigration law) allows for judicial review of a terrorist group designation. The second type of terrorist group, the PATRIOT Act describes a procedure similar to a "Section 219" terrorist group identification procedure, but any express reference to the same type of judicial review is curiously omitted in the statute's description. The third type of terrorist organization, any group organized or not which engages in terrorist activity, again contains no provision is for judicial review of that designation. The Act therefore gives federal investigators or agencies tremendously wide latitude in designating terrorist groups--with all that would follow, once the entire range of the investigative and surveillance authorities also granted by the PATRIOT Act are brought into play against any group so identified. It must be noted that the definitions of "terrorism" and "domestic terrorism" and "foreign intelligence" do not exclude the potential involvement of American citizens, so PATRIOT Act investigation, surveillance, and prosecution, authorities are not restricted to aliens. The mandatory detention of aliens under Title IV allows for habeas corpus review (similar, in fact, to other parallel provisions in existing immigration law although they were not as extreme). Yet habeas corpus review has not been utilized with great vigor by federal courts. An appeal of denial of habeas corpus is also provided, but such an appeal is extremely unlikely to succeed. Aside from habeas corpus, the only review allowed by an alien in indefinite detention is a request for administrative review of the detention, every six months. These provisions make a mockery of our system of judicial oversight of executive activity. There is limited judicial oversight of many other Act provisions such as forfeiture provisions, long arm jurisdiction, and reduced or eliminated statutes of limitations. While these provisions may be seen as giving federal courts more power, in actuality the power is being given to federal prosecutors and investigators, who continue to drive federal criminal investigations and prosecutions. 2. Limited Congressional review or oversight. There are provisions scattered throughout the PATRIOT Act requiring various federal agencies or departments (chiefly State, Treasury, and Justice) to report to Congress on their activities or on the results of particular studies. Among them are reports to be made to Congress by the Treasury Department about "special measures" imposed on banks under Title III and by the Justice Department on the detention of aliens under Title IV. Yet, little is said in the Act about Congressional power to take any action as a result of the reports. Also, little is said about the status of these various reports themselves, whether they are secret, how they can be distributed, if Congress has the power to restrict agency activity if Congress becomes concerned about information in them,, and so on. Congress itself, by enacting the PATRIOT Act, has withdrawn any authority it might have to oversee the results of the agency activity put into motion by its extreme provisions. A prime example is the report to Congress on detention of aliens. The report only needs to include how many were detained at the start of the time period covered by the report, how many have been released, how many have sought judicial review of their detention, and how many are still detained. Notably absent from the requirements of this report are the names of the detainees, what each detainee may be charged with, the circumstances of the detention, the locality of the detention, and whether criminal prosecution is underway. Again, Congress has abdicated its opportunity to exercise detailed oversight of such extreme provisions. There has been some movement in the direction of Congressional oversight. For example, in June of 2002, Rep. F. James Sessenbrenner, Jr. and Rep. John Conyers, Jr. of the House Judiciary Committee sent an extensive letter to Attorney General John Ashcroft raising 50 rather pointed questions (many of those questions in several parts) about Justice Department activity related to the PATRIOT Act, especially Titles II and IV. The tone of this letter and its criticism of potential overbroad Executive Department conduct was commendable. But on the whole, Congressional action of this kind has been lackting. Much more is needed if Congress intends to exercise some control and oversight of the forces it set in motion with this Act. 3. "Fellow PATRIOT Acts." Congress surely is well aware that legislatures in the 50 States follow Congressional lead in identifying and acting on legislative priorities, from handguns to drunk driving. It has been no different in anti terrorism legislation. Within months after the PATRIOT Act was enacted by Congress and signed into law, other State legislatures acted on the mood of the country and the concern about terrorism investigation and considered if not passed similar State level legislation. There are examples ranging from Maryland to California. In Maryland, new legislation rewrote State search and seizure guidelines, imposed new requirements on security for chemical plants and facilities, enacted new security measures for State office buildings (either by legislative act or Governor's order), and gave sweeping new powers to the Governor to declare special emergencies with subsequent powers for agencies dealing with health, transportation, policing, and security. These "fellow PATRIOT Acts" pose problems no less severe than the Federal version. While perhaps not as extensive as the original, these other statutes are likely not to be interpreted with the same precision as might be imposed by federal courts, give new powers to certain State agencies ordinarily not accustomed to wielding them, and may not contain sunset provisions. Unfortunately, these State statutes and their effects will be with us for some time. 4. The "enemy combatant". A disturbing development among federal investigators is the announcement that a particular person seized and detained for suspected terrorist involvement or charged with a terrorism offense is a "enemy combatant." Even more alarming is the fact that this label has been used against a United States citizen. Investigators have made this announcement with arrests like Jose Padilla the so-called "dirty bomber" and his supposed accomplice, Adham Hassoun. Both were arrested in May and June, 2002 in Florida, and have been held in a Navy brig in North Carolina. Their eventual fate is still unknown. The government also has argued this theory in a brief filed in the United States Court of Appeals for the Fourth Circuit. According to this approach, which has followed the wide investigative and detention authorities either established or expanded by the PATRIOT Act, an "enemy combatant" is not entitled to the same due process protections as any other detainee or arrestee. Such a person does not have the same rights to challenge their detention or to seek court review. Such a person can be held until the "conflict" is "concluded." If this is to mean the end of the "war on terrorism," then the time frame could be years. Yet this "enemy combatant" designation appears nowhere in the PATRIOT Act or in general federal criminal law. How this very alarming approach will be met by the courts is one of the major unfolding issues in the post-PATRIOT Act world. 5. Detention of aliens and detention conditions/the new American Gulag. The detention of aliens, now tremendously expanded by PATRIOT Act Title IV, and the conditions of their detention, is one trend that fortunately continues to receive media and activist group attention. Many of the aliens seized and detained in roundups occurring immediately after September 11 and especially after the PATRIOT Act was signed, and which continue to occur, have been marked by serious deprivations of basic constitutional rights under the Fifth and Sixth Amendments, as well as rights and practices traditionally available to anyone in pretrial detention. Those include the rights to see family, to communicate with others, to meet with counsel, and to know of the charges being brought. Stories coming from places like the Metropolitan Detention Center outside New York, federal detention facilities in Illinois near Chicago, and detention facilities in North Carolina (some of them military facilities) include other deprivations such as extreme conditions, solitary confinement, restrictions on food, beatings, and other brutalities. Many of the individuals seized and detained have little by way of family in this country, little or no financial resources, and only minimal knowledge of their own rights. The government is seizing the opportunity to exercise its considerable investigative, surveillance, and detention powers granted by the PATRIOT Act against a population that is least able effectively to respond. The result, besides wholesale violations of the Constitution, protocols of detention, and human decency, is the potential development of a new American "gulag"--facilities where aliens or others seized under these expanded authorities will be placed and which can be relied upon by investigators to provide the proper conditions designed to elicit appropriate information by the arrestee useful in the investigation, not to mention confessions. Such a development if it occurs will be another black page on an already too-long history of extreme governmental treatment of suspect groups. 6. New "terrorist" group identifications globally/"their" terrorists become "our" terrorists. Part of the new globalization of the war on terrorism is activity by the United States seeking assistance or cooperation by other countries in investigating and tracking terrorist groups of immediate interest to the United States and who are suspected of involvement in the September 11 attacks, chiefly Al Queda. Of course, this interest also includes other terrorist groups so "designated" by United States authorities, which is already a tremendously long list. In a show of further United States cooperation with these other nations, American authorities are also designating other groups in other countries which are deemed by these countries to be "terrorist" groups. In December, 2001 and on later dates, federal agencies announced that groups such as the Basque separatist movement in Spain (the ETA) and the Sendero Luminiso in Peru had been officially designated as "terrorist" groups for purposes of United States policy, notably invoking the considerable powers of surveillance, investigation, and prosecution granted by the PATRIOT Act. Such groups clearly had nothing to do with September 11 although they have resorted to violence in their particular campaigns, but their official designation as a "terrorist" group has more to do with the United States recognizing another nation's "terrorists" in order to obtain that nation's assistance in acting against "terrorists" of interest to this country. That will soon develop into another disturbing trend of rebel groups of one sort or another in various countries being designated by the United States as "terrorists"--again, with all that entails in terms of surveillance and investigation. It is one way in which nations interested in preserving the status quo against the challenge of a dissident group can obtain the involvement and support of the United States and eliminating that group. How this plays out remains to be seen. 7. Using FISA material for criminal prosecution. The main reason why surveillance warrants under the Foreign Intelligence Surveillance Act are not subject to quite the same restrictions and requirements as search and seizure orders in other investigations is that FISA-type investigations are not designed to lead to direct criminal prosecution, but are expected to produce information to allow investigators to track the activities of certain suspect foreign nationals under some sort of structure and guidelines. Yet after the PATRIOT Act, federal authorities are becoming more interested in using FISA investigations as the basis of a criminal investigation. A recently-announced decision by the FISA court that was issued in May, 2002 (and was made public by the Senate Judiciary Committee--the first instance of a public FISA court opinion), criticized this approach. The FISA court in that opinion made it plain that it would be the arbiter of the FISA statute and how information obtained through FISA may be used. But the Justice Department has taken issue with that opinion. It has already taken the opinion up on appeal. Using FISA information as the basis for standard criminal prosecution would go against the intent of FISA and would be, in effect, an end-run around the Fourth Amendment. This will be another trend to watch. 8. New information and surveillance technologies. As PATRIOT Act emphasis on surveillance and intelligence continues, so also will arise a whole new or expanded corporate subculture in surveillance technologies and methods. One example of this was quite evident in September 18 and 19, 2002, when a Homeland Security Technology Expo and Conference was held in Washington, D.C. Hosted in part by the Department of Commerce in association with the Office of Homeland Security, this Tech Expo featured presentations, workshops, and displays by scores of technology-related firms involved in investigation, security, and surveillance. A sampling of these firms, whose particular expertise is indicated by the name alone, were: Ideal Shield, Language Analysis Systems, Biometric Key Systems, Dialogic Communication Corporation, Davidson Optronics, GM Defense/Patriot 3, Identicard Systems, QuickHire, Mindbank, WeGuardYou.com, and Vigilant Warning Systems. This is only the beginning. A new generation of security and special electronic and surveillance methodology is about to unfold, some of which may have already been on the drawing board, but now given a serious boost by the studies, mandates, reports, grants, new offices, and special funding under the PATRIOT Act. 9. New corporate attitude as to employee surveillance. Congress may be well aware that the private sector/corporate world takes its lead from Congressional and White House interest and action on particular issues. The PATRIOT Act and the new emphasis on security is surely no exception. Corporations, businesses, and merchants are now doing more than ever to track the movements of employees and customers, conduct background checks for new hires, review resumes, refuse hire to almost anyone with a criminal background even if it has nothing to do with the job involved, and track daily employee activities. Some computer surveillance programs in use in the corporate world allow a system administrator of a LAN to track keyboard keystrokes or even screen activity on any given computer in the system, down to whether the employee is conducting unauthorized shopping on the Internet (and this can even include credit card numbers entered) to slacking off by playing solitaire. Some of these surveillance programs were already in use well before the PATRIOT Act. But the Act and the new atmosphere of security have given them a new legitimacy and have encouraged corporations either to expand or to institute similar surveillance systems. Keep in mind that if anything of any real import were discovered through these surveillance processes, its use in a criminal investigation is not restricted by the Fourth Amendment. 10. Reach of State and local authorities. The new PATRIOT Act provisions for information sharing, grants and funding, and cross agency training and cooperation, as well as the "fellow PATRIOT Acts" passed by State legislatures has given State and local governmental law enforcement units a new emphasis and a new influence. Now, the county Sheriff or local municipal law enforcement unit may be involved in a terrorism investigation, can search for "foreign intelligence" and can watch out for "domestic terrorism." The professionalism of these organizations can sometimes be called into question, not to mention their lack of experience in these types of investigations. While that does not at all mean that it was a good thing for federal agencies to be given all of the new authorities provided by the PATRIOT Act, the expansion of these authorities to the State and local law enforcement levels is a disturbing "vertical expansion" of already disturbing police power. Increased funding for everything. Not so much a trend as an observation, is the fact that the PATRIOT Act is part of an entire new federal and security apparatus due to receive, since September 11, an entire new wave of federal funding. It used to be that if a corporation was involved in drug enforcement, treatment, or surveillance, it was a prime recipient for federal contracts. Now the operative word is "terrorism" and corporations learn quickly. All sorts of new systems and mandates, contracts and grants, training and procedures, will be the subject for contracts at the federal, State and local levels. There already is enough funding in the PATRIOT Act to amount to $2.6 billion, not including "authorizations" without a specific sum. And that does not include funding for bioterrorism, which was the subject of a recently-enacted separate statute by Congress also recently signed by President Bush, aviation security (through the Aviation and Transportation Security Act which among many other things established the enormously large Transportation Security Administration), or increased military spending. The funding process is taking a new direction. It will be years before its effect is fully felt. Watching for the Future These 10 trends are enough for anyone interested in keeping abreast of immediate PATRIOT Act developments. But there are still four particular long-term matters to watch for in the foreseeable future. 1. "Domestic terrorism". The PATRIOT Act in Title VIII creates a new crime of "domestic terrorism." This is an act which is 1) a federal or State crime, 2) is dangerous or harmful to human life, 3) is designed to effect policy by coercion or intimidation, and 4) occurs within the United States. The intent of this new crime obviously is to "federalize" certain criminal acts and call them "terrorism" to bring them under federal surveillance, prosecution, and enhanced sentencing under the PATRIOT Act. Civil liberties groups have raised concerns that "domestic terrorism" could include legitimate political protest, although the requirement that the action be dangerous or harmful to human life would place most political protest such as marches, demonstrations, and other activity, even if illegal, outside the definition. Also, to date, even a year since the PATRIOT Act no one has been prosecuted under the crime of "domestic terrorism." Still, this is a development worth watching. How and in what way a prosecution for "domestic terrorism" would proceed clearly would show how the federal government will utilize that statute. Also, in a parallel way, the PATRIOT Act makes it clear that providing material support for, being in a conspiracy with, and attempting to commit, a terrorist act is also "terrorism." Prosecution of legitimate action such as political protest in support of a particular group or action, could be seen as terrorism under those definitions even if it is not prosecuted under the "domestic terrorism" crime. Both developments need to be watched. 2. Judicial review and oversight. Much has been made, even in this two-part series, of the lack of judicial oversight of government action in the PATRIOT Act. But it is a double-edged sword, for oversight and review of government action by the courts has not universally meant judicial restriction of that action. For example, the Alien and Sedition Acts enacted during World War I, the Espionage Act enacted subsequently, the detention of Japanese Americans during World War II, the actions of the House UnAmerican Activities Committee, and the Foreign Intelligence Surveillance Act, all were upheld by federal courts including the Supreme Court. So, if there is going to be judicial review and oversight, it needs to be materially different than historic judicial deference to Congressional conduct. It needs to be much more concerned with the Constitution than with Congress, with destruction of civil liberties than the detention of terrorists. If the courts are involved in the long view, they need to recognize that the horizon may very well be a cliff with a 300 foot drop. So far there has been no overall challenge to the constitutionality of the PATRIOT Act or its major provisions. Some federal courts have taken up issues relating to legal authorities granted by the PATRIOT Act, with interesting results. XXXXX [add list]. For certain, the Supreme Court has yet to reach any major PATRIOT Act issue. There appear to be no such cases on the Court's current docket. But there is time. Even the more extreme provisions are not due to sunset until 2005, and the rest of the PATRIOT Act is permanent. Federal courts will be dealing with this statute indefinitely. Federal courts not only need to seriously take up the question of judicial oversight but also take it up in dramatic and effective ways for the protection of all Americans and all within her shores. 3. PATRIOT Act backlash. Perhaps some impetus for the strength that the judiciary needs to apply to its review of the PATRIOT Act and governmental conduct under its provisions, will come from the recent resolutions passed by several municipalities rejecting or criticizing the Act. Such resolutions were passed by towns in Massachusetts, California, and Colorado. While these resolutions have no ultimate legal authority--the PATRIOT Act as a federal statute would override any such local government resolutions--their effect is to demonstrate to the federal government and to the citizenry nationwide that not all Americans will be as complacent as Congress and the White House might expect when it comes to the PATRIOT Act. If any trend identified in this series needs to continue, it is this. More municipalities and other jurisdictions small and large need to take notice of the issues and trends surrounding the PATRIOT Act and make it plain that they will not lie down and let the Constitution be sacrificed to the ever-expanding "war on terrorism." 4. Sunset provisions. Finally and perhaps most important, the American public cannot be distracted and complacent when it comes to those portions of the PATRIOT Act which are due to sunset. Certain sections in Title II are due automatically to sunset on December 31, 2005. The entire Title III is due to sunset on or before October 1, 2005 but only if Congress passes a joint resolution so declaring. It stands to reason that if the American public remains complacent and if Congress continues to be distracted, pressure will be brought to bear--chiefly by federal investigative and intelligence agencies which have become far too accustomed their expanded surveillance, investigative, and prosecutorial powers--to repeal the sunset provisions for Title II and not to pass the joint resolution to inactivate Title III. That should not be allowed to happen, and only a vigilant American public can prevent it. Of course, the Act does not explain what will happen to all of the information gathered, new federal offices established, and other activities initiated, under Titles II and III if these Titles do sunset. It is extremely doubtful that those offices will be disbanded or the information discarded. This in itself will be another matter to watch and another question to ask, as 2005 comes around. --------- C. William Michaels is an attorney and writer in Baltimore, Maryland. His just released book, No Greater Threat: America After September 11 and the Rise of a National Security State (Algora Publishing NYC, 2002) contains a review and analysis of the entire USA PATRIOT Act. The book is available from Barnes & Noble and Amazon.com. For more about the book and the author, go to "www.nogreaterthreat.com" In preparing these articles, Mr. Michaels gratefully acknowledges the assistance and collaboration of truthout.org columnist Jennifer Van Bergen (J.D. Cardozo School of Law; Faculty, New School University in New York). http://www.truthout.org/docs_02/11.15D.jvb.cm.usapa.1.htm http://www.truthout.org/docs_02/11.16D.cm.usapa.2.htm Free Speech & G.W. Bush by Jennifer Van Bergen t r u t h o u t \| Commentary Friday, 15 October, 2002 Prince Hamlet, watching an actor portray the death of the King of Troy, wonders what the actor would do if he had had his father murdered and mother seduced like Hamlet's. Hamlet declares that the actor would: ...... drown the stage with tears, And cleave the general ear with horrid speech, Make mad the guilty, and appall the free, Confound the ignorant, and amaze indeed The very faculties of eyes and ears. In other words, Hamlet believed that hearing true words spoken from the heart would drive the guilty mad and would shock free citizens. The ignorant would be further confounded and confused. People would be amazed. The actor's "horrid speech" would be too much to hear. Make mad the guilty, and appall the free.... It works as well today. The truth is what liars and criminals do not want anyone to know, and it is sometimes equally as hard for citizens to hear. No one listened to Hamlet. To this day, he is seen as an angry young man whose rush to avenge his father's murder was driven by grief, not righteousness. Indeed, the end of the play brings death to all. All is the fault of Hamlet's rebellion. But, what if Hamlet could have spoken the truth to - and been believed by -- a court of law with power to mete justice? Hamlet, the angry, disbelieved cynic would have been Hamlet the revered truth-bringer. No further innocent person would have died an untimely death. Sometimes in history, as in daily life, - too often, for many -- there is no one and nothing to whom to appeal. Powerful wrong-doers grab power and retain it, their lies running in the rivers from which we must drink. Those wronged remain unheard and uncompensated, living in an underworld of reverberating silence and pain. This, in my opinion, is not far from what is happening in the United States today. The U.S.A. Today Nancy Chang of the Center for Constitutional Rights, writes in her new book "Silencing Political Dissent" that the Bush administration pushed the PATRIOT Act through a panic-stricken Congress, and where it "has lacked authorization from Congress for its domestic antiterrorism measures, it has authorized them by executive fiat." (Here's the power grabbing.) Chang continues: "The administration has also engaged in a campaign to restrict access to government information that has blocked the press, the public, and even Congress in their efforts to hold the executive branch accountable for its actions." (Is secrecy proof of a guilty mind?) Furthermore, the government "has admitted that its failure to heed the warnings [about 9/11] was not because of a lack of law enforcement powers. Rather, the failure was the result of an information overload." Chang concludes that "[t]he recently announced reorganization of the FBI and the loosening of FBI domestic intelligence-gathering guidelines [under the PATRIOT Act] ... are likely to result in an even greater overload of information." Thus, the PATRIOT Act, enacted for the purpose of fighting terrorism, is, along with the related antiterrorism measures, "unlikely to make us safer, and could even make us less safe." (This is information worth obscuring, isn't it?) One hopes this does not end like Hamlet. This week on truthout, C. William Michaels, in Part II of his two-part retrospective on the PATRIOT Act, notes eleven trends to watch for. Michaels' points are right on. If anything, Michaels has not emphasized them enough. Let us play devil's advocate for a moment and turn his propositions on their head: Michaels says that under the PATRIOT Act, judicial review is limited. Well, who cares that judicial review is reduced? Aren't the courts corrupt anyway? Michaels says that Congressional oversight is limited. Well, so what? They passed the Act. If they didn't want to provide for review, they didn't have to. That's perfectly constitutional. Michaels notes that many states are passing copy-cat PATRIOT Acts. So what? Aren't we fighting terrorism here and isn't the danger grave? We need protection on the state level, too, don't we? Following the rest of Michaels points, who cares if a few bad guys get labeled enemy combatants and are kept in jail forever? Don't they deserve it? Or locking up illegal aliens? They take our jobs, don't they? (So what it may also be forever!) The improved surveillance provisions: they're just bringing us up to date. The mixing of foreign intelligence investigations with domestic criminal investigations - well, what do we have to worry about? We're not foreign. Let me tell you, if judicial review is reduced any more, it may as well be lost, and if it is lost, the United States goes the way of the Roman Republic.1 If Congress stops reviewing - and if we stop insisting they review - what do we have left? An Executive run by an oil baron. And how long do you think we can keep throwing innocent people in jail for the sake of preventing crime before we have total enslavement of the masses? If you think that targeting Arabs or Muslims, any more than African-Americans, will make our country safer, you need only look back to our very own Civil War, fought as much over slavery as southern cotton. And if we allow the Fourth Amendment to be eradicated merely by calling a criminal investigation by another name, we will deserve our chains. Michaels refers to backlash, by which he means that the PATRIOT Act has sparked some civil rights activist efforts. However, I think there is another kind of backlash we need to be worried about. As International Law Professor Jim Wilets recently noted at a conference held in Florida, we need the cooperation and good will of other countries if we want to fight terrorism successfully. If we refuse to uphold international human rights norms - which is the case under our current antiterrorism measures -- we expose our own soldiers and citizens abroad to the same abuses. Indeed, we risk worse than this. We risk sparking even further terrorism against us. Citing the outcomes of several international court cases, Wilets pointed out that the Bush administration has not only gone out of its way to be unilateralist at every opportunity, but is in some respects, legally speaking, an international outlaw. When the United States breaches or ignores international law, "our credibility then for using international law to pursue our foreign policy is compromised," says Wilets. First Amendment Zones, Free Speech, and Subversive Advocacy Credibility, of course, is not the most we have to worry about. Our very own freedoms are at stack. Freedom. That is, after all, what it is about, right? Freedom to speak. Freedom to assemble. Freedom to protest. If indefinite detention and no judicial review is scary, what about the so-called First Amendment Zones? When and where Bush got the idea to put these into effect, I do not know, but the moment he was in office, he began cordoning off chain-linked pens for protesters. No one could come to within a mile of Bush, unless he or she was a supporter. The Supreme Court has consistently ruled that while the right of public assembly and protest may be regulated, it may not be abridged or denied. (Well, I guess Bush can argue that he is not denying protesters the right to assemble or protest.) Permits must not discriminate among groups on the basis of their views. (Hm. Well, First Amendment Zones do not involve permits, do they?) Breach of peace laws may not be used to shut down even mass assemblies, on the pretext that violence might occur, as long as the marchers are peaceful. (Okay, the Bush protest assemblies are not shut down. They are just penned in.) "Time, place, and manner" restrictions on demonstrations, if enforced in a neutral (nondiscriminatory) way, are constitutional. (The First Amendment Zones are hardly enforced neutrally. They restrict only those who are against Bush.) If the restriction is "narrowly tailored to serve a significant government interest" and leaves open "ample alternative channels of communication," the Court will likely view it as constitutional.2 (Here, Bush triumphs. His rationale is the well-worn but sure-fire "national security" one. National security is always considered at least a significant government interest.) And, of course, if Bush is speaking on private property (such as that football stadium in Tampa, Florida), citizens have no inherent right to assemble or protest there. (But why not directly outside of it?) I am sure that Bush had legal advice about the First Amendment Zones. Their idea is to make the cost of challenging too high for the average citizen. As far as I know, no one, not even the ACLU, has yet brought legal action against any government entity for depriving citizens of their rights to assemble and protest in public open space on the First Amendment Zones issue. There is, by the way, another constitutional doctrine which comes into play in the freedom-to-protest issue. It is known as subversive advocacy. Subversive advocacy involves "the right to advocate unlawful conduct, to incite people to act unlawfully, and to promote highly unpopular ideas that might promote radical political and social change."3 It is constitutional, as long as (in the words of Oliver Wendell Holmes) it does not create "a clear and present danger" to the government or polity.4 In the more recent formulation of this doctrine, subversive advocacy is NOT constitutional only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."5 Would Bush have to prove only that there is some obscure national security concern to succeed in penning protesters? Or would he have to prove that there was a clear and present danger of unlawful action? The distinction revolves around whether the protest is subversive advocacy or merely peaceful protest. Thus, it appears that if the protest is advocacy of unlawful conduct the barrier is LOWER than if the protest is mere picketing. In other words, for subversive advocacy, there is at least a court determination of whether lawless action is imminent, but for peaceful picketing, there is essentially NO determination, since whenever the government plays the national security card, courts become timorous and compliant. Naturally, a subversive advocacy case could also involve national security concerns, but that does not obviate the ludicrously diverging result just outlined. Free speech -- subversive possibly, from the heart hopefully, and always from those who speak because they believe in their words, because they need to be heard, and because they want to know and to speak the truth -- not only deserves protection. It deserves reverence. Free speech is sacred. It is the only thing that has the power to make mad the guilty and amaze the eyes and ears of citizens. The silencing of dissent under the PATRIOT Act and such related measures as First Amendment Zones are anathema to free speech and assembly. ------- 1 The Roman Republic became the Roman Empire, which ultimately over-extended itself and fell to "barbarian" invasions.**Minnerly of Tucson, AZ, in a letter to the New York Times in response to its September 22 magazine article on Lynne Stewart ("Left Behind," by George Packer), writes: "The Antifederalists, the genuine leftists of more than two centuries ago, warned that our elitist constitution would only create another Roman Empire. Well, under the control of rightist liberals and conservatives, our nation has indeed become inhuman, immoral, and a more terrible aggressor than Rome ever was." 2 Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981). 3 Jethro Lieberman, "A Practical Companion to the Constitution," 1999. 4 Schenck v. U.S., 249 U.S. 47 (1919). 5 Brandenburg v. Ohio, 395 U.S. 444 (1969). http://www.truthout.org/docs_02/11.16E.jvb.speech.htm Repeal the USA Patriot Act by Jennifer Van Bergen t r u t h o u t \| April 1, 2002 This is the first in a six-part series of articles on the USA Patriot Act: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." This Act, passed in response to the September 11th, 2001 terrorist attacks on our country, was passed hastily and in a time of fear. It affects all of us in some very basic and important ways. Part I of this series states briefly why we should demand the immediate repeal or amendment of the USA Patriot Act. Part II walks the reader back in time to look at two acts, which were also passed hastily and in a time of fear. The Alien & Sedition Acts of 1798 parallel the USA Patriot Act in many respects, and offer some important warnings. Part III discusses the recent emergence of troubling evidence of violations of civil rights under the USA Patriot Act, and looks at the disturbing possibility of torture being used. Parts IV and V look at specific sections of the Act. Part IV covers how the Act mixes criminal law and foreign intelligence work, puts the CIA back in the business of spying on Americans, allows law enforcement to enter your home without you knowing it, and can track your emails and internet activity. Part V will discuss how the Act punishes some people for engaging in innocent First Amendment associational activity, violates other civil rights of immigrants, uses secret evidence, curbs judicial oversight, and invades financial and student records. Part VI discusses national security concerns, sums up, and closes with a potent exhortation to Americans, made over 200 years ago by Senator Edward Livingston. Part I: This Law is Dangerous The USA Patriot Act is an insult to Americans. The name, itself, is insulting, given what the Act contains and what it will someday be known for: its complete abdication of democratic law and principles. It should be called the Constitution Shredding Act. In particular, it utterly relinquishes any semblance of due process, violates the First, Fourth, Fifth, Sixth and Eighth Amendments, and unacceptably mixes aspects of criminal investigations with aspects of immigration and foreign intelligence laws. Let me state it even more bluntly. This law is dangerous. It�s a travesty. What is worse is that few Americans have the slightest idea what this law contains or what it means. Why is this? Because, the USA Patriot Act has several clever catches in it that have enabled it to slip by the awareness of the average law-abiding citizen. First, it relates mostly to foreign nationals. (So it can�t affect U.S. citizens, right? Wrong.) Second, it deals with terrorism. (And we�re not terrorists, are we? Don�t be so sure.) If you think this law applies only to the bad guys who attacked our nation, think again. Many provisions in this law apply to and will affect Americans, in many, bad ways. What is more frightening about it is that, despite the fact that the USA Patriot Act was passed hastily without any debate or hearings and under a cloak of fear, its provisions were obviously very carefully thought out and crafted to take power out of the hands of courts and ensure absolute lack of oversight of law enforcement and intelligence gathering. There is no way that the USA Patriot Act came into existence solely in response to September 11th. In fact, it is clear from prior legislative and case history that law enforcement and intelligence have been trying for many years to obtain these powers. It is only the unreasoning "bunker mentality" that followed September 11th that allowed its planners to pass it. Indeed, one might question whether Congress could sincerely have intended this Act, given that portions of it are re-enactments of the 1996 anti-terrorism laws which had been repeatedly ruled unconstitutional by federal courts. One must wonder whether congress- persons were in their right minds. If they were not, this law cannot be valid. Most troubling is that most of these powers do little to increase the ability of law enforcement or intelligence to bring terrorists to justice � but, they do much to undermine the Constitution and violate the rights of both immigrants and American citizens alike. Another reason why Americans do not yet know what a terrifying weapon has been put in their government�s hand is that the Act is extremely nuanced and amends numerous other laws. One provision, for example, merely amends the words of an earlier act, which had read "the purpose," to read "a significant purpose." What difference could that tiny change make? It opens the door for the FBI to evade the probable cause warrant requirement in criminal investigations whenever the FBI decides the information might have "a significant purpose" in an intelligence investigation. No court can intervene. In other words, the legal protection that a court must determine that there is probable cause of criminal activity before a search or seizure can be made is totally discarded here. If the FBI thinks the information might contribute to an investigation, whatever the target�s activity might be, legal or not, the FBI can simply go search and seize. (And under the new "sneak and peek" provisions, they can do so without you ever knowing it.) Notice also that this clause mixes foreign intelligence gathering with domestic criminal investigation, allowing the FBI to spy on Americans whom no court has determined have done anything wrong. Finally, this information, under another provision of the Act, can now be shared with the CIA, in violation of its charter, which bars it from engaging in domestic spying. As the ACLU analysis of this section states, this simple little clause is being used "as an end-run around the Fourth Amendment." It is a "power grab [that] will sweep in Americans" as well as aliens. It behooves us to take a good, solid look at the USA Patriot Act, so we can tell our representatives what we think of it. Tomorrow, we will take a walk back in time to look at two acts that were also enacted hastily in a time of fear. The Alien and Sedition Acts of 1798 parallel the USA Patriot Act in several respects and offer some important warnings. Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter. Jennifer Van Bergen is an Editor and a regular contributor to t r u t h o u t. This is Part II of a six-part t r u t h o u t series on the USA Patriot Act. This Act, passed hastily and in a time of fear, affects all of us in some very basic and important ways. Part II walks the reader back in time to look at two acts, which were also passed hastily and in a time of fear. The Alien & Sedition Acts of 1798 parallel the USA Patriot Act in many respects, and offer some important warnings. Repeal the USA Patriot Act Part II: The Wheel of History by Jennifer Van Bergen t r u t h o u t \| April 2, 2002 In 1798, the United States almost went to war with France. France, angry that we had signed a treaty with England behind its back, began attacking American ships at sea. The United States sent a special peace delegation to France, but France tried to extract money from the delegates in exchange for receiving them. The event became known as The XYZ Affair, after the three French operatives who demanded the bribe, whose identities President John Adams refused to reveal. When Adams released the insulting dispatches, war fever swept the land. "Millions for defense, not one cent for tribute!" became the cry of the warlike Federalist Party, and Americans of all political persuasions rashly agreed to increased defense expenditures and limits on personal freedoms. Xenophobia became so great that many French immigrants who had sought refuge here from the guillotines of the French Revolution had to leave the U.S., often with nowhere to go. With the country in a vengeful mood, the Alien and Sedition Laws were enacted. The Alien Act allowed the President to arrest, imprison, and deport "dangerous" immigrants on mere suspicion of "treasonable or secret machinations against the government." If a deported alien returned, the President could imprison him for as long as he thought "the public safety may require." Sound strangely familiar? (If it does, then you know something about the USA Patriot Act.) The Sedition Act made it unlawful for any person to write, print, publish, or speak anything "false, scandalous and malicious" about the government, either Congress or the Executive, if it was done with the intent to defame or to bring the government "into contempt or disrepute," or to excite the hatred of the people against the United States. Does this remind you of John Ashcroft's December 6th rant before Congress in which he equated civil liberties with aid to terrorists and declared that any public debate would "give ammunition to America's enemies"? The Alien and Sedition Laws were a blot on the democratic record of this country. They were not used to protect against dangerous aliens. The Alien Act was used by Federalists to keep out of Congress qualified Democratic candidates who had only recently become U.S. citizens (such as Swiss immigrant, Albert Gallatin, who two years later became Secretary of the Treasury under President Thomas Jefferson). The Sedition Law was used to arrest, prosecute, and jail Democratic newspaper editors who dared to oppose the Administration. Thomas Jefferson and James Madison wrote resolutions that challenged the federal government's power to enact these laws. These became known as the Kentucky and Virginia Resolutions. These resolutions declared that states do not have to accept unconstitutional laws passed by Congress. The Kentucky Resolution further declared that states could nullify such laws. These resolutions were never tested in the courts or in Congress, but many historians feel they provided the doctrinal basis for the secession of the South from the Union sixty-two years later, which began the Civil War. It is frightening to make the comparison. War fever in 1798 led the extreme Right (Federalists) to push through acts that targeted immigrants but were used to persecute political opponents and violate the civil rights of citizens. These rash enactments led moderates to endorse two constitutionally dangerous doctrines, nullification and secession, which over half a century later opened the door for civil war. We should think carefully about these events. One member of the ill-fated 1798 peace delegation was John Marshall, subsequently the Chief Justice of the United States Supreme Court whose most famous decision, "Marbury v. Madison," established the doctrine of judicial supremacy, making the Supreme Court and not Congress the final arbiter of the law. Marshall did more to establish the power of the Supreme Court than any other Justice did. Without his establishment of judicial supremacy, the present Supreme Court arguably could not have put George W. Bush into office. As one legal commentator put it: "The principal objection [to the doctrine of judicial supremacy] is the seeming paradox in a democracy of non-elected officials overruling policy judgments of the people's elected representatives." Or, for that matter, the popular vote. Interesting, is it not, how the wheel of history turns and comes back to stare us in the face? Tomorrow, Part III, civil rights violations and the possibility of torture under the USA Patriot Act. Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter. This is Part III of a six-part t r u t h o u t series on the USA Patriot Act. This Act, passed hastily and in a time of fear, affects all of us in some very basic and important ways. Part III discusses the recent emergence of troubling evidence of violations of civil rights under the USA Patriot Act, and looks at the disturbing possibility of torture. Repeal the USA Patriot Act Part III: Civil Rights Violations and Torture by Jennifer Van Bergen t r u t h o u t \| April 3, 2002 Yesterday, I noted how similar the Patriot Act is to the abhorrent 1798 Alien Act. I illustrated how both were enacted after attacks on Americans, and in times of fear and hysteria. I pointed out how the Alien & Sedition Acts failed to protect Americans and ended up causing extreme violations of American's civil rights. I remarked upon the long-term effects of these laws, the blowback of which ultimately contributed to the outbreak of The Civil War sixty years later. Finally, I closed by noting how the wheel of history turns, as the Supreme Court was able to put Bush into office on the basis of a now, long-accepted doctrine laid down in those earlier precarious times. The wheel-of-history analogy reminds me of the lines W. S. Gilbert wrote a hundred years ago in the satirical operetta, "Trial by Jury:" "The screw may twist and the rack may turn, And men may bleed and men may burn...." W.S. Gilbert's haunting words were written in the context of a fictive and farcical trial by jury, but they could be applied metaphorically just as well to the twists and turns of time and fate, to the repetitions and revolutions of history. Those who do not know history are doomed to repeat it. Democracy is a fragile thing. But another point: one can also construe Gilbert's words literally. What is worrisome now, under the Patriot Act and the Administration's ensuing measures, is that our government might actually consider such things. I mean, the screw and the rack. Torture. Does the Bush Administration advocate torture? No. Not publicly, at least, although the obvious pleasure Bush has shown at applying the death penalty, and his response to one condemned woman's plea for clemency suggests he might. (His response was to mock her.) Does John Ashcroft? Not yet. But, unbelievably, the idea has been bandied about in the press. (A CNN poll revealed that 45 percent of Americans would not object to torturing someone if it would provide information about terrorism.) More importantly, the Patriot Act opens the door for exactly that type of abuse. Indeed, evidence is already leaking out of cruel treatment toward detainees. A recent Amnesty International release states: "Reports of cruel treatment include prolonged solitary confinement; heavy shackling of detainees during visits ... and lack of adequate exercise." According to the March 18th amended complaint in the case brought by the Center for National Security Studies to compel the Department of Justice to release information on detainees (CNSS v. DOJ): "There are also many reports about detainees being abused or treated improperly while in federal custody. Detainees have alleged that they have been beaten by guards. The Los Angeles Times reported that a Pakistani detainee was stripped and beaten in his cell by inmates while guards did nothing; that five Israelis were blindfolded during questioning, handcuffed in their cells and forced to take polygraph tests; and that a Saudi Arabian man "was deprived of a mattress, a blanket, a drinking cup and a clock to let him know when to recite his Muslim prayers." This is the treatment afforded to detainees who are being held on routine visa violations, people who would not normally be detained at all. The complaint states: "Less than five of the 718 immigration charges detailed by the government relate to terrorism." Americans should be outraged. This is a country of immigrants. This is a democracy, not a tyranny. Some detainees have been held several months without being charged with any violation. Others report they continued to be held after bail had been granted and they were ready to meet it, according to Amnesty International (AI), which has joined the suit against the DOJ. These conditions are in direct contravention of international standards, according to AI. AI has also called for a full inquiry into the conditions in the federal Metropolitan Detention Center in New York, to which AI was denied access, where some 40 detainees are reported to be confined in solitary cells for 23 hours or more a day. The Seven-Day Rule Under the USA Patriot Act, once the Attorney General has "certified" that an alien is a terrorist or a threat to national security, the Immigration and Naturalization Service (INS) may detain him without indictment for seven days before it brings any immigration or criminal charges. This sounds very much like the Prevention of Terrorism Act that was in place in Great Britain in the 1970s under which IRA suspects could be held and interrogated for seven days without indictment or counsel. The 1993 film, "In the Name of the Father," starring Daniel Day-Lewis and Emma Thompson, showed just how brutally and unfairly such laws can be used. "The Guildford Four" were arrested, detained without counsel, beaten, interrogated under extremely coercive conditions, then, of course, convicted and imprisoned. They continued to be imprisoned even after a convicted IRA member informed the authorities the four were innocent. After serving fifteen years in prison, the four were cleared of all charges and released. This is exactly the type of thing that seems already to be occurring under the Patriot Act. Although it is extremely difficult to obtain information about those detained, several attorneys testified before the Senate of such abuses. One: "Gerald H. Goldstein testified before the Senate Judiciary Committee that his client had been arrested on September 12 and held incommunicado from his lawyers until September 19, despite both his and his lawyers' repeated requests for access to each other. During that time, he was repeatedly interrogated despite his requests to speak with counsel." The Attorney General can essentially throw anyone in jail he wants. All he has to do is point his finger at someone and say the magic words, "terrorist," or "threat to national security," and the suspect is detained. The Attorney General need give no reasons or explanations. He can do this on "evidence" he never reveals. Such evidence could be mere implication or hearsay without proof or corroboration. As the ACLU has said, this sort of "'trust us, we're the government' solution ... is entirely unacceptable." Furthermore, the government, once it has certified someone as a terrorist or threat to national security under the seven-day holding provision, can then detain the person indefinitely on nothing more than a visa violation. Once these people are out-of-sight, the government hopes they will be out-of-mind. What makes this worse is that the label of terrorist affixes without any trial or proof of guilt. In other words, the law turns the presumption of innocent-until-proven-guilty upside-down. "Label first; find guilty later," is the new law. Under these conditions, the question of treatment becomes even more significant. Torture Unbeknownst to most Americans, claims of torture have arisen repeatedly in U.S. terrorism cases from the 1970s onward. Defendants have made claims that they were subjected to torture at the hands of mercenaries under U.S. control, foreign governments who were acting in collusion with agents of the U.S., or in foreign custody but under the watchful and ostensibly approving eye of FBI agents. These claims, of course, are not reported in the news, as the civil rights of suspected terrorists naturally do not draw much empathy. Courts are also generally not sympathetic to such claims, and in some cases have even failed to hold evidentiary hearings required by law to determine whether there is any factual basis to the claim. Some, if not most, claims are thrown out for the simple reason that proof of such torture is impossible to come by. In a few instances, however, an appeals court has overturned a lower court's verdict, or refused to adjudicate a case, due to a claim of torture. Did you get that? More than one court has had to throw out a case against a suspected terrorist because there was evidence that our government was involved in torturing him. This should be an embarrassment to a democratic country. How dare we call ourselves an advanced civilization? In these cases, the torture was alleged to have occurred outside of the United States, of course. That does not make in any less wrong. There is evidence that such practices are not isolated to the past era of intelligence agency abuses of the 1950s through the 1970's -- which included government experiments on unwitting adult and children U.S. citizens -- but have continued into the 1990's and beyond. (I personally worked on a case in which a suspect claimed he was tortured for four months by Pakistani military police in 1994 with the knowledge and under the supervision of the FBI. The suspect was convicted, and, to date, as far as I know, no hearing has been held to give the defendant the opportunity to prove his claim or to ascertain its credibility. This is a matter of public record, but who has heard about it?) The existence of police brutality unfortunately no longer surprises most people, because the cases come out in the media. They come out in the media because victims are Americans who have constitutional rights that have been violated. But, federal agent brutality is unknown to us because, where it does take place, it only does so in the deepest shadows of overseas covert ops in cooperation with sleazy and abusive foreign governments, and is only directed at foreign nationals. Our government can thus maintain deniability by laying the blame on foreign governments for the torture, and no one has to worry about the rights of the suspect who will be tried in our courts (but who may not yet have even been charged with a crime). This picture should be a deeply disturbing one to us. Why? Why should we care about how alien terrorist suspects are treated? First of all, because torture is inhumane and wrong. Secondly, because if the suspect confessed under torture, he may not even be guilty. (Ask yourself, if you were being tortured, would you hesitate to say anything in order to make it stop?) The government may have gotten the wrong guy, which means the real perpetrator remains at large. Thirdly, because it flies in the face of what a democracy is about. A fourth reason is that the abuses carried out under these laws may come to be used against us, as well. Remember what happened with the Alien & Sedition Laws? The Alien Act, which was meant to protect Americans from dangerous foreign nationals, was used to keep out of office qualified immigrant citizens. The Sedition Law, purportedly enacted to preserve national security, was used to persecute newspaper editors who dared to oppose the Administration. Are these the kinds of laws we want to live under? Is this what a democracy is about? * (It is my belief that evidentiary hearings on claims of torture should use a similar standard as that used in asylum applicant claims of persecution. The asylum applicant is not required to meet the impossible standard of supplying eyewitness testimony or documentary proof of past or probable future persecution in his homeland, and the court may rely on information compiled from credible sources such as international organizations, private voluntary agencies, news organizations, or academic institutions, to corroborate the applicant's testimony. Were this standard applied to torture claims in terrorism cases, a substantiated claim of torture by a suspected terrorist would not per se exonerate him, but would go towards a valid defense. Thus, for example, if it is established that a torture-claiming suspect was held by the authorities of a regime for which Amnesty International has documented torture, the court should determine whether a confession obtained by the FBI immediately after obtaining custody of the suspect - whether or not he supposedly waived his Miranda rights -- should be inadmissible.) Tomorrow, in Part IV, we will look at how the Patriot Act affects U.S. citizens. Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter. This is Part IV of a six-part t r u t h o u t series on the USA Patriot Act. Previous parts have focused on reasons why the Act should be repealed or amended, a comparison of the USA Patriot Act with the Alien and Seditions Acts of 1798, and evidence of civil rights violations of current detainees and of torture in previous terrorism cases. Parts IV and V give a survey of the different provisions of the USA Patriot Act. Part IV covers how the Act mixes criminal law and foreign intelligence work, puts the CIA back in the business of spying on Americans, allows law enforcement to enter your home without you knowing it, and track your emails and internet activity. Part V will discuss how the Act punishes some people for engaging in innocent First Amendment associational activity, violates other civil rights of immigrants, uses secret evidence, curbs judicial oversight, and invades financial and student records. Part VI discusses national security. Repeal the USA Patriot Act Part IV: Patriotism or Tyranny? by Jennifer Van Bergen t r u t h o u t \| April 4, 2002 Awareness of events in other parts of the world -- poverty, starvation, internal wars, genocide - may make Americans feel reticent to acknowledge the shock and fear that followed the September 11th attack on U.S. soil. These emotions are no less real, nonetheless, and our concern for safety is warranted. The USA Patriot Act, however, does little to increase our safety and much to undermine it further by internal means. Nancy Chang, Senior Litigation Attorney at the Center for Constitutional Rights, sums it up well: "To an unprecedented degree, the Act sacrifices our political freedoms in the name of national security and upsets the democratic values that define our nation by consolidating vast new powers in the executive branch of government." Chang points out that the USA Patriot Act "launches a three-pronged assault on our privacy." First, Chang says, "the Act grants the executive branch unprecedented, and largely unchecked, surveillance powers, including the enhanced ability to track email and Internet usage, conduct sneak-and-peek searches, obtain sensitive personal records, monitor financial transactions, and conduct nationwide roving wiretaps." Second, "the Act permits law enforcement agencies to circumvent the Fourth Amendment's requirement of probable cause when conducting wiretaps and searches that have, as a 'significant purpose,' the gathering of foreign intelligence." Third, "the Act allows for the sharing of information between criminal and intelligence operations and thereby opens the door to resurgence of domestic spying by the Central Intelligence Agency." When I talk to people about the USA Patriot Act, many say, "The USA Patriot Act? What's that?" That's where we are. Many Americans have no idea this law was even enacted, let alone how it affects them. Those who know what the Act was intended to do, do not know what it actually does. The proponents of this Act used American shock and fear to slip this law past our awareness. However, unlike the Act's proponents (who really think they can get away with this), I believe in the intelligence of the average American. I believe that regular Americans, armed with knowledge, know how to use common sense. I believe that American common sense is the bedrock of our country. Prepare now to carry on a great American tradition: find out what your government is up to, so you can form your own opinion and talk about it with your friends, colleagues, coworkers, relatives, and neighbors. Let's take a closer look at some of the provisions. ----------- DOMESTIC CRIME INVESTIGATIONS VERSUS FOREIGN INTELLIGENCE GATHERING Criminal investigations and foreign intelligence investigations have historically, and with good reason, been kept separate in our country. The USA Patriot Act blurs the dividing line between these two areas of law, undermining procedural protections inherent in criminal law. For example, before the USA Patriot Act, domestic electronic surveillance was governed by Title III of the Omnibus Crime Control and Safe Streets Act (OCCSSA). OCCSSA provided adequate safeguards for basic constitutional rights, such as the Fourth Amendment probable cause warrant requirement and judicial review. The crimes that were covered by this law were specifically-defined serious crimes. Foreign intelligence, on the other hand, was governed by the Foreign Intelligence Surveillance Act (FISA). FISA granted the Attorney General authority to certify an alien as an agent of a foreign power. There were no Fourth Amendment probable cause protections, and no judicial review. Under the USA Patriot Act, the boundaries between these two territories of law are breached. An immediate and direct consequence of this breach is an immediate and direct loss of constitutional protections for both American citizens and immigrants. Read on. ----------- "THE USA PATRIOT ACT PUTS THE CIA BACK IN THE BUSINESS OF SPYING ON AMERICANS" That's how the American Civil Liberties Union put it. Section 203 of the Act allows law enforcement to share with intelligence agencies -- including the FBI, CIA, NSA, INS, Secret Service, and Department of Defense -- sensitive information gathered during a criminal investigation. The types of information that could be shared include information revealed to a grand jury (previously prohibited by law), telephone and internet intercepts obtained without court order and without restrictions on the subsequent use of the intercepted information, and any other "foreign intelligence" information obtained as part of a criminal investigation. This, alone, is reason enough to amend the Act. As the ACLU says: "The USA Patriot Act would tear down [procedural] safeguards and once again permit the CIA to create dossiers on constitutionally protected activities of Americans and eliminate judicial review of such practices." Not to mention that it is a violation of the CIA's charter to engage in law enforcement or internal security functions. The Foreign Intelligence Surveillance Act (FISA) was enacted to halt just this sort of activity. The USA Patriot Act arrogantly overrides the protections secured by FISA. ------------- "SNEAK AND PEEK" WARRANTS This is another provision that not only does not protect Americans from terrorism, but rather exposes us to incursions from our own government. This one enables the government to go into your house when you are not home, look around, take pictures, and even seize your property, all without telling you. This is the movie, "Enemy of the State," come to life. Don't get used to this, people. It's an outrage. It's your home. It's your privacy. It's your life. Law enforcement is still required under this provision to obtain a warrant to enter, but it no longer has to give you the timely notice which both the Federal Rules of Criminal Procedure and the Fourth Amendment require. The only justification law enforcement now needs to enter without notice is that notice might "seriously jeopardize an investigation or unduly delay a trial." This clause is actually adopted from existing law (18 USC 2705). However, the USA Patriot Act sneakily changes the meaning of the existing law, since the delayed-notice exception was previously only applied to communications in the custody of a third party. Now, this authority is available to law enforcement for any kind of search and in any kind of criminal case. Other grounds for delaying notice encompassed by this provision have some semblance of meaning. For example, the possibility that if the target had notice, he might destroy evidence or flee prosecution. But, jeopardizing an investigation? This is the snake eating its own tail. ------------- YOUR TELEPHONE AND COMPUTER ARE BEING TAPPED ... AND NO JUDGE CAN STOP IT! Under Section 216 of the Act, law enforcement now not only has the authority to intercept transmissions from people suspected of terrorist activity, but also from people under investigation for other crimes as well. Okay, so what? They're still criminals, right? Wait. This authority now contains no constitutional safeguards. Judges are now required to issue blank warrants without reference to a location or jurisdiction, as long as law enforcement certifies that the surveillance is "relevant to an ongoing criminal investigation." What happened to the Fourth Amendment? What happened to the requirement that law enforcement go to a judge and show there is probable cause that criminal activity is occurring? The Act doesn't stop there. Section 216 of the Act extends this low threshold of proof beyond the mere "trapping and tracing" of telephone numbers. It extends it to tracing your emails and internet activities. Telephone numbers can easily be separated from telephone conversations; email addresses are not so easily separated from email contents. The FBI says that it can be trusted to separate the email addresses from the content. Oh, really? I suppose defendants should also trust prosecutors, and the poor should trust the rich. Morton Halperin, former National Security Council consultant, writes in The New Yorker that if a government intelligence agency "thinks you're under the control of a foreign government, they can wiretap you and never tell you, search your house and never tell you, break into your home, copy your hard drive, and never tell you that they've done it." The Electronic Frontier Foundation states: "The civil liberties of ordinary Americans have taken a tremendous blow with this law ... Yet there is no evidence that our previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists." Tomorrow, Part V will discuss how the Act punishes some people for engaging in innocent First Amendment associational activity, violates other civil rights of immigrants, uses secret evidence, curbs judicial oversight, and invades financial and student records. Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter. This is Part V of a six-part t r u t h o u t series on the USA Patriot Act. This part discusses how the Act punishes some people for engaging in innocent First Amendment associational activity, violates other civil rights of immigrants, uses secret evidence, curbs judicial oversight, and invades financial and student records. Tomorrow, Part VI, the last part of the series, discusses national security and proposes a few steps we can take. Repeal the USA Patriot Act Part V: Who's a Terrorist? by Jennifer Van Bergen t r u t h o u t \| April 5, 2002 Yesterday, in Part IV, I discussed the violation of constitutional protections under the USA Patriot Act, the blurring of lines between foreign and domestic investigations, the sharing of sensitive personal information between agencies, the sneak and peek law, and the Fourth Amendment violations under the new electronic surveillance provision. Today: who's a terrorist, indefinite detention of innocent immigrants, violation of immigrant's rights of association, and the invasion of financial and student records. WHO'S A TERRORIST? You think you know who the terrorists are? They are extreme fanatical Muslims from other lands, right? Think again. A terrorist could be anyone who tries to influence the policy of the government by intimidation or coercion, if their actions break any laws and are dangerous to human life, presumably including their own. A 1960's anti-Vietnam War protester would fit this definition. Section 802 of the Act, borrowing from the definition of international terrorism contained in 18 USC 2331, creates the federal crime of "domestic terrorism." Among other things, this section states that acts committed within the United States "dangerous to human life that are a violation of the criminal laws" can be considered acts of domestic terrorism if they "appear to be intended" to "influence the policy of a government by intimidation or coercion," or "to intimidate or coerce a civilian population." This provision applies to United States citizens, as well as aliens. One must ask what kind of legal standard this is. "Appear to be intended"? How does one determine that? This leaves tremendous latitude in the hands of zealots and paranoiacs. If a Senator wrote Ashcroft that he wanted documents from him, for all we know Ashcroft might think that the Senator was breaking the law and appeared to intend to influence policy. This is not as far-fetched as you might think, given Ashcroft's interpretation of executive privilege. He appears to think (!) that any public request for information from him is an illegal incursion on his "right" to secrecy. In addition, with the Administration's views of what constitutes national security, who knows but that it even might view such a request as "dangerous to human life." In commenting on this provision, Nancy Chang of the Center for Constitutional Rights writes: "Vigorous protest activities, by their very nature, could be construed as acts that 'appear to be intended ... to influence the policy of a government by intimidation or coercion.' Further, clashes between demonstrators and police officers and acts of civil disobedience - even those that do not result in injuries and are entirely non-violent - could be construed as 'dangerous to human life' and in 'violation of the criminal laws.' Environmental activists, anti-globalization activists, and anti-abortion activists who use direct action to further their political agendas are particularly vulnerable to prosecution as 'domestic terrorists.'" Notice, further, that there is no requirement of imminent danger in this clause. In other words, you could tear down a fence, such as the protesters in Vieques, Puerto Rico did to oppose government nuclear testing there, and if somebody fell and bumped his head - or perhaps if it was only possible that someone might --, this could be grounds enough to call you a terrorist. Foreign Terrorist Organizations Section 411 of the Patriot Act purportedly defines foreign terrorist organizations. However, as the ACLU points out, this provision "permits designation [of] foreign and domestic groups," since the provision defines these groups as "any political, social or other similar group whose public endorsement of acts of terrorist activity" - which, of course, under the Section 802 could mean lawful protest - which "the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities." Again, how does one determine when a "public endorsement ... undermines" the U.S. government's "efforts" to "reduce or eliminate terrorist activities"? If you openly admire the bravery of your enemies, that could be considered a public endorsement. In terms of undermining government efforts, Attorney General Ashcroft made perfectly clear he would interpret any public debate or dissent as just that, when he said such public discussion would "erode our national unity ... diminish our resolve ... give ammunition to America's enemies, and pause to America's friends." This law transforms publicly beneficial discussion into a crime, and turns our law enforcers' slightest fears into acts of oppression against their own people. Supporting Terrorism Under existing law (8 USC 2339b), an American citizen who gives money to an organization that the Attorney General or Secretary of State has designated a terrorist organization, can be prosecuted for the crime of "providing material support or resources to a designated foreign terrorist organization." What is different now under the USA Patriot Act is the definition of a terrorist organization. The definition is much broader now. The USA Patriot Act pulls together and redefines several different existing laws, none of which really define what constitutes a "terrorist organization." Under Section 411, a terrorist organization can now include not only organizations designated by the Attorney General, but those identified by the Secretary of State as having provided material support for, committed, incited, planned or gather information on potential targets of, terrorists acts of violence (drawing from 8 USC 1182). Section 411, according to a report by the Congressional Research Service, therefore "recasts the definition of engaging in terrorist activities to include solicitation on behalf of such organizations, or recruiting on their behalf, or providing them with material support." Thus, a terrorist activity is defined as an act in support of a terrorist activity. It's like saying "You're bad because you're bad." You can be prosecuted for terrorist activity if you have supported or associated with an organization that is NOT even designated as a terrorist organization, since a terrorist organization can be anyone who provides material support to so-called terrorist activity, which could be someone supporting the Northern Alliance against the Taliban, or someone protesting the U.S. bombing of Afghanistan. This is nearly a conundrum. It would be amusing if it weren't so alarming. ---------- INNOCENT IMMIGRANTS ARE BEING INDEFINITELY IMPRISONED AND HELD IN SOLITARY CONFINEMENT ... USING SECRET EVIDENCE Immigrants fare much worse under the USA Patriot Act. Under Section 412, any immigrant who innocently supports the activities of a designated terrorist organization could be deported or indefinitely detained. Again, the government can detain or deport an immigrant who provides lawful assistance to groups that are not even designated as terrorist organizations. This violates the First Amendment, which protects the right of association for citizens and immigrants alike. The ACLU points out that "the history of McCarthyism shows the very real dangers of abuse" of the right of association. It also violates the Eighth Amendment, which prohibits cruel and unusual punishment (indefinite detention), and the Sixth Amendment right to a speedy and public trial. Further, an alien's wife and children can also be deported or detained, if they cannot prove they did not know of the terrorist activity. An alien suspect may be held for seven days without being charged with any crime. In addition, a period of indefinite detention may begin when the suspect is charged with ANY crime, a crime that has nothing to do with terrorism at all, such as a minor visa violation that would not otherwise result in detention at all. Indeed, CNSS claims that the DOJ gave them a list of over 700 unnamed detainees, only five of whom were being held on terrorism charges. In order to detain an alien, Ashcroft must "certify" that there are "reasonable grounds" to believe that that person is engaged in conduct which threatens national security or is deportable on grounds of terrorism, espionage, sabotage, or sedition. "Yes, but," I hear you say, "these are terrorists!" And how do we know that, when we have only the word of John Ashcroft? The Sixth Amendment and Secret Evidence Under the USA Patriot Act, the government may use secret evidence against either immigrants or citizens in these cases. The 1798 Alien Act (discussed in Part II of this series), as bad as it was, applied the evidentiary standards of the day. All evidence had to be presented in open court, subject to authentication, challenge, and cross-examination. The Sixth Amendment protects the rights of citizens and immigrants alike to confront their enemies. Reliance on secret evidence violates this right. Secret evidence was permitted under the 1996 antiterrorism laws, but numerous federal courts declared its use in violation of the Constitution, and over 100 congressmen had signed support for the Secret Evidence Repeal Act (H.R. 2121) in 2000 - an act that fell by the wayside in the wake of September 11th. As one U.S. District Court judge wrote: "The [Immigration and Naturalization Service's] reliance on secret evidence raises serious issues about the integrity of the adversarial process, the impossibility of self-defense against undisclosed charges, and the reliability of governmental processes initiated and prosecuted in darkness." U.S. Supreme Court Justice Jackson wrote in 1950: "The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected." The Sixth Amendment Right to Counsel In a criminal trial, a defendant is entitled to have a lawyer assigned to them. Under the USA Patriot Act, immigration detainees are not entitled to such assignment. This does not mean they have no right to counsel. It just means they have to obtain their own attorney. However, many detainees come from countries with few legal protections for their citizens, and, thus, have no idea they are even entitled to constitutional rights in this country, much less what those rights might be. In criminal law, a suspect's invocation of his right to counsel protects him from further interrogation. Law enforcement may not ask any further questions of a suspect once he has asked for an attorney, until after he has consulted with an attorney and only in the presence of the attorney, if the suspect requests. Any information obtained from a suspect by law enforcement, including a confession, elicited after the right to counsel is invoked, is inadmissible in court. It is clear from lawyers' affidavits in the lawsuit brought by the Center for National Security Studies (CNSS) against the Department of Justice (discussed in Part III of this series) that the right to counsel of immigrants is already being violated. Reports have emerged of detainees requesting and being denied access to counsel. Again, this is an outrage in a democratic nation. Unless we Americans want to find ourselves under the same yoke, we should be raising a ruckus about this. --------------- FINANCIAL AND STUDENT RECORDS AT RISK It should at this point be no surprise to readers that the USA Patriot Act requires financial institutions to monitor your financial transactions and share that information with other agencies (Sections 351 and 358). The same with student records (sections 507 and 508). If the records are certified as "relevant to an investigation," educational institutions have no choice but to turn over student information, including fields of study, grades, coursework, financial information, and ethnicity. Existing law provided adequate tools to conduct investigations. These provisions of the Patriot Act lead to more privacy violations that do nothing to further terrorism investigations. Tomorrow, Part VI, the last part of the series, discusses national security and proposes a few steps we can take. Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter. Jennifer Van Bergen is an Editor and a regular contributor to t r u t h o u t. This is Part VI of a six-part series on t r u t h o u t on the USA Patriot Act. This part discusses national security and some steps we can take to retain both our security and our liberty. Repeal the USA Patriot Act Part VI: National Security & Civil Liberty by Jennifer Van Bergen t r u t h o u t \| April 6, 2002 This is a time of fear. What is even more frightening to some people than the terrorists attacks we suffered - or perhaps one should say, on top of the attacks -- are the warlike measures of President Bush. Others feel that Bush is doing a good job of protecting us, while yet others think that he is a crook, but even if he is, it is good to have someone like that doing our dirty work for us. Terrorism is a big issue. National security is a big issue. Civil rights is a big issue. Who is right: the hawks or the doves? (Thomas Jefferson, himself the Great Dove, resorted to the dark uses of slanderous hack writers, treasonous double agents in foreign pay, and, it is suspected, even assassins.) I have no doubt that Al Qaida is a dangerous terrorist network. It is dangerous. It is lethal. Its members hate Americans of all creeds and races. And they will do whatever they can, even destroy themselves, in order to destroy us and our way of life. But, these dangers do not require us to abandon our commitment to the democratic ideals of our Constitution. If democracy cannot stand up to terrorism, it is not worth much. This is the time of all times for democracy to show its colors. All the colors that make up this nation of immigrants. A free and open society is the true antidote to terrorism. This neither requires blind self-exposure to danger nor blind policing. The Eagle does not have to mean war. It can mean foresight, insight, and the ability to soar above paranoid prejudices. To look in the face of terror, one must be willing to see into the darkness. It is not a comfortable thing to do. Many of us want the dirty work done, as long as we don't have to look into that darkness ourselves. But, looking at terror is not the same as abandoning fairness. The USA Patriot Act does abandon fairness, in many respects. National security does not require this. As Bruce M. Ramer testified on behalf of the American Jewish Committee during the House Judiciary Subcommittee Hearings on the Secret Evidence Repeal Act (H.R. 2121) of 2000: "There is nothing inconsistent in assuring that law enforcement authorities are properly equipped to respond to the threat of terrorism while, at the same time, assuring that immigrants and refugees are treated fairly and decently." Mr. Ramer's recommendations are worth noting here. He proposed adopting the procedural protections that were originally enacted in the Alien Terrorist Removal Act (ATRA) of 1996. This Act was amended by the immigration reform law later in 1996, which removed some of ATRA's protections. ATRA applied only to alien removal cases. It was intended to kick in only where an alien "would pose a risk to ... national security." Once that was determined, ATRA established rules that assured the basic procedural protections of the alien's right to a public hearing, representation by counsel, the opportunity to examine evidence, including an unclassified summary of classified evidence, and to introduce exculpatory evidence. These due process procedures were not preserved in the 1996 Anti-Terrorism and Effective Death Penalty Act, and although more and more federal courts were finding portions of that law unconstitutional, many of the same provisions were again enacted in the USA Patriot Act. As I pointed out in Part I of this series, one might question the lucidity of our congressman in doing this - and, thus, the legal validity of the Patriot Act. Ramer's recommendations do not answer the question of how one determines that an alien, or an American for that matter, is a risk to national security, but it does address the problem of the use of secret evidence. As Parts III and IV of this series show, the ability to use secret evidence opens the door for wide abuse of civil rights. Under the USA Patriot Act, although the Supreme Court has rejected indefinite detention of aliens in deportation, an alien can be detained his entire life on the basis of evidence he has no opportunity to meet or refute. This is appalling and unacceptable in a democratic society. In addition, in the cases in which an alien has finally been given the opportunity to challenge the secret evidence, courts have found no basis for detention. For example, the case of Hany Kiareldeen, released after 18 months of detention in October 1999, apparently held solely on accusations made by his wife during a custody battle. Upon his release, she disappeared with their child. Or Nasser Ahmed, released after three years in solitary confinement on no charges. Or Anwar Hammad, never charged with a crime, never found to have been engaged in or associated with terrorism, released after over four years. Or Dr. Mazen al-Najjar, a respected university professor, a stateless Palestinian, and a resident in the U.S. for 18 years before he was detained. After several years in prison, al-Najjar was released in December 2000, the judge finding the classified evidence insufficient grounds to hold him. Free for about a year, he was then taken again into custody, where he currently remains, on deportation proceedings. To date, secret evidence has been used largely in immigration cases. It is clear that under the USA Patriot Act, its use will be extended to cover domestic criminal cases. Only recently, the Department of Justice announced its plans to use secret evidence to justify financial sanctions against an American Muslim charity based in Chicago. No person should be detained, indicted, or convicted on secret evidence alone in order to protect national security. The idea is an oxymoron. The true threat to national security is a government that can jail people on evidence that couldn't stand the light of day. The phrase "a threat to national security" should not be used so often that it sounds like the boy who cried wolf. Americans need to question how a threat to national security should be determined. Do we simply round up all the Arabs or Muslims, like in the movie, "The Siege"? Why not then round up all the peace activists, environmentalists, and political opponents? There should be procedures established to determine what meets the criteria of "a threat to national security." At this time, at best, federal judges are merely given the opportunity to view classified evidence in camera and ex parte, and apply their own individual, personal judgment as to whether revealing the evidence would endanger covert operations or operatives or national security, the evidence is adequate grounds to further detain the alien suspect, whether and what portions of the secret evidence should be summarized in an unclassified summary for the defendant to challenge, and whether such a challenge would be sufficient to successfully refute all the charges. Judges must now use their best judgment to make these determinations, but they have no standards or baseline criteria to follow in making such determinations. This is, as I say, at best. At worst, judges are not even given an opportunity to review such evidence or to determine whether the indictees or detainees are held on the slightest rational ground. Judicial oversight must never be relinquished, especially on cases that concern national security or use secret evidence. The USA Patriot Act raises many additional concerns. This series has raised only a few of the worst ones. In closing, it is worth quoting the words of a senator speaking before one of our early congresses. On June 21, 1798, the last day of the congressional debates on the Alien and Sedition Acts, Senator Edward Livingston spoke the following words to the Senate: "If we are ready to violate the Constitution, will the people submit to our unauthorized acts? Sir, they ought not to submit; they would deserve the chains that these measures are forging for them. The country will swarm with informers, spies, delators, and all the odious reptile tribe that breed in the sunshine of despotic power ... The hours of the most unsuspected confidence, the intimacies of friendship, or the recesses of domestic retirement, afford no security. The companion whom you trust, the friend in whom you must confide, the domestic who waits in your chamber, are all tempted to betray your imprudent and unguarded follies; to misrepresent your words; to convey them, distorted by calumny, to the secret tribunal where jealousy presides - where fear officiates as accuser, and suspicion is the only evidence that is heard ... Do not let us be told that we are to excite a fervor against a foreign aggression to establish a tyranny at home; that like the arch traitor we cry "Hail Columbia" at the moment we are betraying her to destruction; that we sing "Happy Land," when we are plunging it in ruin and disgrace; and that we are absurd enough to call ourselves free and enlightened while we advocate principles that would have disgraced the age of Gothic barbarity." The USA Patriot Act returns us to the age of Gothic barbarity. This Act does not belong in a democracy. It should be repealed. If it is not repealed, it should be amended to remove those provisions, which violate the civil rights of citizens and immigrants. Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter. Jennifer Van Bergen is an Editor and a regular contributor to t r u t h o u t. It should be crystal clear that this is an attack on our rights and it takes very little stretch of the imagination to know how law enforcement will use this to create or put us one notch closer to a totalitarian police state. .