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The USA PATRIOT Act
S eptember 11, 2001, marked a momentous and tragic event in U.S. history. It also evoked a flood of patriotic fervor and an instant fear that Americans now were vulnerable to international terrorism. Capitalizing on these fears, the executive and legislative branches of the U.S. government quickly enacted measures purported to counteract terrorism or terrorist threats. One of the principal results of this activity was an act titled “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,” or, the USA PATRIOT Act, passed and signed into law by President Bush on October 26, 2001. The USA PATRIOT Act is one of the most sweeping acts in modern American history because of its potential impact on the civil liberties of U.S. citizens and non-U.S. citizens residing in the United States
It is hard to believe the Act could have been drafted, debated, and passed in only 45 days. It is over 342 pages long and extremely complicated. Given its complexity, and the fact the legislation represented a wish list of new investigative and detention powers long sought by law enforcement officials, it is more likely the pro-law enforcement Administration had been drafting such provisions for many months. Post-September 11 provided the perfect opportunity to introduce them, with very little Congressional or public opposition. The Senate voted for the Act 98 to 1 and the House 356 to 66. The vast majority of Americans never even heard of it at the time.
The Act is complex and difficult to grasp because of its multiple references to and incorporation of other foreign intelligence acts, principally the Foreign Intelligence Surveillance Act (FISA). Congressional hearings were minimal and the legislation was not accompanied by either a committee or conference report. Nonetheless, in the meager hearings that took place, the Act was vigorously opposed by numerous civil rights groups, especially the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU), who warned that the Act was constitutionally defective and represented a broad attack on many of the traditional civil liberties enjoyed in the U.S.
One of the most significant features of the Act is a new, broader definition given to terrorism. The definition now also includes “domestic,” as contrasted with international terrorism. Section 802 states that a person engages in domestic terrorism if they do any act “dangerous to human life” that is a violation of the criminal laws of a state or the United States, if that action appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping. Further, the act or acts must take place primarily within the territorial jurisdiction of the United States.
This definition is broad enough to encompass the activities of such organizations as Greenpeace, Operation Rescue, Environmental Liberation Front, protests about Vieques Island, and protests at the meeting of the World Trade Organization. Civil disobedience, such as entering on the premises of a U.S. military base, which is a violation of federal law, would now be included within the definition of an act of domestic terrorism. Disrupting a meeting or procession of vehicles as a means of drawing attention to or attempting to influence an unwanted governmental policy all could be considered acts of domestic terrorism. The implications are huge and the Act can be used to prosecute political dissidents of many stripes. The Act potentially violates at least six of the ten original Bill of Rights: the 1st, 4th, 5th, 6th, 7th, 8th, and 13th Amendment. It grants broad new powers to law enforcement and permits law enforcement officials to side-step or avoid entirely many traditional controls on the surveillance, investigation, arrest, and prosecution of civilians residing in the United States.
The first effects of the Act were soon felt when the government secretly arrested and jailed more than 1,200 people in connection with its investigation of the events of September 11. “Despite demands from members of Congress, numerous civil liberties and human rights organizations, and the media, the Government refused to make public the number of people arrested, their names, their lawyers, the reasons for their arrest, and other information related to their whereabouts and circumstances.”
After first failing, by means of the Freedom of Information Act (FOIA), to obtain information about those arrested and held, multiple organizations joined to file suit in federal district court in Washington, DC ( Center for National Security Studies, et al. v. U.S. Department of Justice ). The government still refused to provide the requested information, citing several exemptions under FOIA. A final order in the case was not entered until August 2, 2002, which required the government to divulge the names of almost all those arrested. By that time most of those arrested had been either released or deported.
Many of those arrested and jailed were Arabs and Muslims, who were cab drivers, construction workers, and other laborers, with no more than ordinary visa violations. Many of them were caught up in routine traffic stops and other incidental contacts with law enforcement officials. Some were incarcerated for up to seven months without being charged or permitted to see their families. Despite the lower court’s ruling, the government still refused to divulge the names of those arrested and is appealing the decision.
In a related secrecy issue, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and others sought to have the Supreme Court review a secret appeals court decision that broadly expanded the government’s power to spy on U.S. citizens. The special, secret court was created in 1978 with the passage of the Foreign Intelligence Surveillance Act. Its purpose was to review and approve government wiretaps in foreign intelligence investigations. All hearings and decisions of the court are conducted in secret. Now, under the PATRIOT Act’s new definition of foreign intelligence investigations, its role is being expanded to include domestic investigations that the government claims are related to foreign intelligence. The Supreme Court, in its first decision on an issue related to the PATRIOT Act, refused the request to review the secret decision of this special court.
In subsequent months, the PATRIOT Act was challenged on other grounds. The Justice Department used the Act to declare two American citizens enemy combatants. They then were held as military prisoners, denied the right to an attorney or access to civilian courts, and left without a roadmap as to how they could challenge their imprisonment. One was arrested in Afghanistan, the other in Chicago. The Justice Department took the position that it was improper for courts to inquire too deeply into the government’s classification of a U.S. citizen as an enemy combatant. The District Court in Norfolk, Virginia ruled that the two-page memo provided by the government to explain its decision in one of these instances was inadequate. However, that ruling was overturned by a three-judge panel of the Fourth Circuit in Richmond in January 2003. On March 11, Manhattan U.S. District Judge Michael Mukasey stood by his earlier, December ruling to allow one of the U.S. citizens, Jose Padilla, who was arrested in Chicago, to meet with defense lawyers. The Justice Department announced it would study the opinion before deciding whether to appeal.
Another area in which the Act has been challenged concerns the Administration’s decision to hold as many as 600 deportation hearings in secret. It did this based on the Attorney General’s assertion that those detained for deportation were suspected of having links to terrorism. A federal district judge in New Jersey ordered that all such deportation hearings be opened to the public unless the government could show, on a case-by-case basis, there was a need for secrecy. That decision also was overturned, by the Third Circuit Court of Appeals in Philadelphia, which held that secrecy was warranted by the grave threats to the nation.
Meanwhile, the Sixth Circuit Court of Appeals in Cincinnati upheld a lower court decision that such deportation hearings must be open, unless good cause is shown for secrecy. That is now the law in Kentucky, Michigan, Ohio, and Tennessee and makes it likely the Supreme Court will consider at least one of these cases to resolve the conflict. However, since most deportation hearings are heard in New Jersey, the Cincinnati court’s ruling may be little more than a gesture.
All told, through mid-March, 2003, the ACLU had filed or participated as a plaintiff in 31 lawsuits and friend of the court briefs in connection with government activities involving arrest, detention, surveillance, and First Amendment violations, in which countering possible terrorist acts was the ostensible reason for the actions. The number of other government violations of civil liberties that have gone unchallenged is inestimable.
Aside from these court challenges, the PATRIOT Act insinuated itself into the everyday lives of ordinary Americans in a variety of ways. While the PATRIOT Act granted extensive new powers to law enforcement, the Bush administration augmented and extended these powers through the issuance of 11 new executive orders, 10 new interim agency regulations, and 2 final regulations implemented by the Justice Department. In this way the Administration sidestepped both the legislative and judicial branches. Government investigations pursuant to the Act are shrouded in secrecy, such as the closed deportation hearings, the secret arrests, and the new power of the government to enter and search the homes of private citizens without notifying them.
Yet another government power under the Act requires courts to issue warrants and orders based on the mere government assertion that the order is sought in connection with a terrorism investigation. These warrants and orders permit the FBI to question any person about co-workers and other persons and to demand access to records about such individuals. The Court order also warns the person questioned not to reveal anything about the contact to anyone else, under threat of criminal sanctions. As a result, it is difficult to determine just what law enforcement officials using the Act are actually doing. The chilling effect of the Act on free speech and political dissent has been felt already. Individuals have been questioned by the FBI about their political beliefs for being openly critical of a possible war against Iraq. In San Francisco, a 60-year-old retiree remarked at his local gym that he thought any war with Iraq was not just about fighting terrorists, but about corporate profits and oil. He promptly received a visit at home from the FBI with questions about his political beliefs.
The FBI paid a call on a North Carolina college student for displaying an “un-American poster” in her own home. The poster in question was critical of President Bush’s stand on capital punishment while serving as governor of Texas. While there the FBI agents asked the student if she had any pro-Taliban materials.
Federal agents spent an hour or more inspecting a car museum in Houston, Texas based on a tip that artwork on display at the museum was “of a nature threatening to the president.” There were no such art works, but the agents questioned a museum docent about the artists, who funded the museum, and who had visited the exhibit.
Other low ranking quasi-law enforcement officials have eagerly joined in the suppression of individual First Amendment rights since the passage of the Act. Recently, in a shopping mall in Guilderland, New York, a 61-year-old lawyer and his son were wearing T-shirts that read “Peace On Earth” and “Give Peace A Chance.” They were ordered by mall security guards to remove the offending shirts or leave the mall. The lawyer refused and was charged with trespassing. Recently, Natalie Maines, the lead singer for the Dixie Chicks, an all female country and western group, spoke out in opposition to the Administration’s war policies in Iraq and criticized President Bush. Subsequently, at a pro-war rally organized by radio station KRMD, part of a radio chain, which banned the Dixie Chicks from its play lists, a tractor was used to smash a collection of Dixie Chicks CDs, tapes, and other paraphernalia, while a supportive crowd looked on.
Other, pro-war Bush rallies were sponsored around the nation by radio stations. Called Rally for America, Clear Channel Communications organized them. Clear Channel is a San Antonio-based organization that controls more than 1,200 radio stations and whose vice chairperson, Tom Hicks, is a close friend and political supporter of President Bush.
Since September 11, there have been innumerable instances of public officials, quasi-public officials, and private citizens attempting to control political speech. These range from banning public rallies and peaceful marches to the cancellation of a Baseball Hall of Fame appearance by Tim Robbins, Susan Sarandon, and Dale Petroskey, the president of the Baseball Hall of Fame.
There were other instances in American history when the government adopted extraordinary measures to suppress unpopular political views or arrest those suspected of being disloyal to the United States. During the Civil War, President Lincoln suspended the writ of habeas corpus. As a result tens of thousands of Americans suspected of being disloyal to the Union were arrested and held without charges by the military. During World War I, and the Red Scare, as many as 10,000 resident aliens, targeted because of their political views, were arrested, interrogated, jailed, and beaten to force them to sign confessions. Raids were carried out in over 30 cities and some 500 “aliens” were deported. During World War II, President Roosevelt issued an executive order for the forced internment of 110,000 persons of Japanese ancestry living on the U.S. West Coast. Two-thirds of those placed in so-called preventive detention, under harsh conditions, were U.S. citizens against whom there was no evidence of collaboration with the Japanese.
During the Cold War, in the late 1940s and early 1950s, when fears of communism were fueled by certain U.S. political leaders and anti-Communist hysteria was rampant, leaders of the American Communist Party were criminally prosecuted and imprisoned under the Smith Act for their political beliefs. The House Un-American Activities Committee carried out a witch hunt of suspected Communists and so-called “fellow travelers.” Thousands of Americans were subpoenaed and called to testify about their own and other Americans’ political affiliations and activities. Those who refused to testify were held in contempt and imprisoned. In other instances, college professors and other employees were forced to sign so-called loyalty oaths or lose their jobs.
Richard Posner, a conservative federal jurist in Chicago, uses the above instances to argue that the current measures taken under the PATRIOT Act are not that worrisome. He urges the use of cost/benefit analysis to weigh the relative importance of liberty vs. security at a time of perceived threats to security. He believes that in time, when the threats to security have waned, a balance between liberty and security interests will be restored.
This sanguine view overlooks the fact that the earlier restrictions on civil rights were one-time phenomena, more specifically targeted, and narrow in scope. In the case of the PATRIOT Act, the restrictions are broad, indefinite, and far-reaching. The Administration insists the war on terrorism is open-ended and will continue for many years, if not indefinitely. Many of the emergency measures to combat the threat of terrorism will likely become permanent and even more comprehensive. Senator Orrin Hatch, a leading congressional supporter of the PATRIOT Act, recently tried quietly to introduce amendments to strengthen the Act and make it permanent.
Already, there is a new bill, prepared by the Justice Department, entitled the Domestic Security Enhancement Act of 2003. Dubbed PATRIOT II, the new act seeks to further expand the government’s powers to combat suspected terrorism and further encroaches on civil liberties. According to David Cole, a Georgetown University law professor, the proposed new act will expand the authority of law enforcement and intelligence gathering agencies; reduce or eliminate entirely judicial oversight of surveillance; permit wiretapping of Americans—without any court order—for 15 days if the executive branch decides there is a national emergency; authorize secret arrests; create a DNA data bank based solely on unconfirmed executive suspicion; create new offenses punishable with the death penalty; and seek to strip Americans of their citizenship if they belong to or support disfavored political groups. Perhaps as importantly, the draft bill was produced in secret, without consultation with Congress. Senior members of the Senate Judiciary Committee minority staff, who inquired of the Justice Department about any such proposed legislation, were informed that no such legislation was being planned only a few days before the proposed bill was publicly revealed on PBS’s “Frontline NOW.” The U.S. Attorney General, John Ashcroft, has swept aside all criticism of the Administration’s current disregard for traditional civil liberties by publicly proclaiming that extraordinary times call for extraordinary measures. Ashcroft’s views are so extreme that he has alarmed even the conservative right wing of the Republican Party. While agreeing with his position on abortion and child pornography, they are asking how they and their own organizations might fare under the new rules affecting civil liberties. If another power were to occupy the United States and institute the policies provided for in the USA PATRIOT Act—secret arrests, secret trials, secret investigations, secret depor- tations—the United States would be considered a police state.
The federal government is also enlisting American universities to assist in maintaining surveillance of foreign students residing in the United States. The Student and Exchange Visitor Program (SEVIS), launched February 15, 2003, will involve almost 6,000 U.S. colleges and universities in gathering and forwarding information about foreign students to a national computer data bank. Along with other information gathered, the schools must notify the Immigration and Naturalization Service (INS) if a foreign student fails to enroll or is arrested. Institutions that do not have INS approval to participate in the data gathering system will be prohibited from enrolling new foreign students. (On March 1, 2003, the INS was merged into the new Department of Homeland Security and is now the Bureau of Citizenship and Immigration Services.)
This past February, a Jordanian foreign exchange student, who confessed to once having had thoughts of being a terrorist martyr, but subsequently renounced those ideas, was summarily ordered deported within five days by a U.S. immigration judge in Dallas. The student, three months shy of earning a master’s degree in software engineering at a Texas university, was under investigation by the FBI for undisclosed reasons.
Currently being put into effect is another new plan, dubbed CAPPS II, in cooperation with U.S. airlines. It will check the backgrounds of all commercial passengers and assign them a threat level of red, yellow, or green. Information about the passengers’ credit reports, bank account activity, and cross checks with the names of persons on a government watch list were to be instituted by Delta airlines about April 1, 2003. A comprehensive system that includes all airlines should be in place by the end of the year.
Creating comprehensive homeland security would cost trillions of dollars and completely change the way Americans lead their lives. It would include national identity cards, surveillance, and subject to search rules in all public places, random searches of vehicles entering airports and parking garages, compiling dossiers on all persons who take scuba diving lessons, tracking the comings and goings of subway riders electronically, and the list goes on and on. Virtually everything anyone does, 24 hours a day, would be subject to constant surveillance.
Already, the security measures put in place in New York City are a portent of things to come throughout the nation. There is a proliferation of armed security guards, surveillance cameras, handbag searches, metal detectors, electronic access cards, and bomb sniffing dogs from the railroad terminals to the art museums. Heavily-armed police officers, dressed like assault troops, patrol landmark buildings such as St. Patrick’s Cathedral in midtown Manhattan. The costs of these measures—and these are just the tip of the iceberg—are potentially astronomical. The costs in terms of the loss of civil liberties are incalculable.
As the scope of the Act and the threats it represents to all U.S. residents became more apparent, more than 100 municipalities and Hawaii, passed resolutions in opposition to the Act. Some encouraged public employees not to comply with the Act’s most invasive and civil rights threatening features. One, Arcata, California, criminalized compliance with the Act. But the main features of a U.S. police state are already in place and it will take a major groundswell of public opposition to undo them.
Jim Cornehls has practiced law and is currently professor and director of the Law and Public Policy Graduate Certificate Program in the School of Urban and Public Affairs, University of Texas at Arlington.
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