Community
Concerns:
Patriot Act May Pose New Threats To Civil Liberties
Barry K. Weinhold
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NOTE: This op ed piece supports CICRCL's educational mission
to facilitate evolutionary shifts in the consciousness. It is
a companion piece to the article on how to respond to the 9/11
tragedy.
In response to 9/11, the U. S. Congress passed
the USA Patriot Act overwhelmingly on October 24, 2001 without
debate or hearings. The Act is 342 pages long and amends parts
of 15 existing laws. The name of the Act seems to imply that if
you question any aspects of this Act, you are being "unpatriotic."
At the time the Act was passed, the intense fear of additional
attacks was still sweeping the nation. Key Democratic leaders
in Congress were also coping from a series of anthrax attacks
on.
As the initial hysteria subsided, many people
began looking more closely look at the Patriot Act and became
alarmed over certain sections of the Act, seeing them as threats
to five of the Bill of Rights. Russ Feingold, the lone senator
to vote against the Act last fall, said recently, "I would
cast the same vote today, but even more confidently, as we see
how law enforcement is beginning to use the new powers in the
bill and how the Department of Justice has proceeded on a variety
of fronts not directly addressed in the bill."
1
Jennifer Van Bergen, an attorney and faculty
member at the New School for Social Research in New York wrote
the following: "The USA Patriot Act is an insult to Americans…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."2
While most of the act appears to focus on threats from foreign
nationals and terrorism, according to Van Bergen and others it
poses a real threat to law-abiding U. S. citizens.
While this attempt to prevent terrorism from
forming in the U. S. is clear in the Act, the wording of several
sections alarms the ACLU, the Center for Constitutional Rights
and the Committee of Radical Attorneys enough to call for its
repeal. The ACLU in its legislative analysis cites the following
"…most troubling provisions" of the Act.3
It allows for indefinite detention of non-citizens
who are not terrorists and who have only minor visa violations.
It minimizes judicial supervision of federal telephone and Internet
surveillance by law enforcement authorities. It expands the ability
of the government to conduct secret searches. It gives the Attorney
General and the Secretary of State the power to designate domestic
groups as terrorist organizations using vague criteria for defining
a terrorist organization. It grants the FBI broad access to sensitive
personal and business records about individuals without having
to show evidence of a crime. It leads to large-scale investigations
of American citizens by the CIA for "intelligence" purposes.
The degree of danger rests with the interpretation
and implementation of the provisions of the Act. The vagueness
of the wording allows for vast interpretation and dangers of misuse
represent threats to our civil liberties says, Nancy Chang, Senior
Litigation Attorney for the Center of Constitutional Rights. Below
is a list of the constitutional threats this Act presents.
First Amendment Threats. Chang writes, "First,
the Act places our First Amendment rights to freedom of speech
and political association in jeopardy by creating a broad new
crime of 'domestic terrorism,' and by denying entry to non-citizens
on the basis of ideology."4
The law as indicated above allows the Attorney General to classify
groups as domestic terrorist organizations without judicial review.
This opens the door to widespread surveillance and intelligence-gathering
activities of political-activist groups that attempt to "…influence
a policy of the government by intimidation or coercion."
(the words of Section 802 of the Act) Finally, Sections 411 and
412 of the Act authorize the Attorney General to set up "detention
camps" to hold suspected domestic or foreign terrorists without
charges for seven days and much longer on people the AJ certifies
as a terrorist.5
Fourth Amendment Threats. According to Chang,
Section 218 of the Act is its most radical provision. It allows
law enforcement agencies to conduct a criminal investigation of
U. S. citizens or foreign non-citizens whenever they can claim
that the gathering of evidence constitutes a "significant
purpose" of the investigation.6
This violates the "probable cause" provision of the
Fourth Amendment that requires a judge to certify that there is
probable cause of a crime before a warrant can be issued to do
a wiretap or a physical a search. According to the ACLU, "This
provision authorizes unconstitutional physical searches and wiretaps:
though it is searching primarily for evidence of crime, law enforcement
conducts a search without probable cause."7
The Act also appears to violate the long-standing "knock
and announce" rule regarding searches and authorizes so-called
"sneak and peek" searches without notice. They do have
to obtain a warrant, but according to Van Bergen, "The only
justification that law enforcement now needs to enter without
notice is that notice "might jeopardize an investigation
or unduly delay a trial.8
According to Van Bergen, "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 gathering during a criminal investigation."
Van Bergen adds that this allows "…information shared
to a grand jury (previously prohibited by law), telephone and
Internet intercepts all obtained without court order and without
restrictions on the subsequent use of the intercepted information."9
According to the ACLU, "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."10
Chang calls the Act the "death-knell on Privacy." She
writes, "…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 and searches."11
Fifth Amendment Threats. Suspected terrorists
(domestic or foreign) are not protected from self-incrimination.
They do not have Miranda Rights and can be interrogated without
an attorney being present. Everything they say can and will be
held against them. Under the domestic terrorism clause (Section
802) it also specifies that a citizen or non-citizen who belonged
to or solicited funds for a group that later is declared a domestic
terrorist group can be prosecuted. Under this Act, according to
the INS, over 700 unnamed people have been detained and only five
are being held on charges related to terrorism.12
Sixth Amendment Threats. Van Bergen states, "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 explanation.
He can do this on 'evidence' he never reveals. Such evidence could
be mere implication or hearsay without proof or corroboration."13
This violates the Due Process Clause of the Sixth Amendment. In
addition, Chang points out that Section 412 of the law permits
the detainee to contest the evidence only in a civil court, they
are denied the right to free counsel normally guaranteed by the
Sixth Amendment. Chang also points out that the detainees lose
the right to confront their accusers, see the evidence, verify
its authenticity or cross-examine any witnesses.14
Eighth Amendment Threats. Van Bergen cautions
that under the conditions of this law, the question of treatment
becomes even more significant. Because interrogations are done
in secret without an attorney present, the use of torture to secure
confessions becomes a possibility.15
The Eighth Amendment protects suspects from cruel and unusual
punishment by requiring that the Miranda rights be read to suspects
and that an attorney be present during any interrogations. The
Justice Department has already conduced hundreds of hearings of
detainees in secret under the provisions of this law. In one of
the first tests of this part of the law, Judge Damon J. Keith
representing the three judges of the U. S. Court of Appeals for
the Sixth Circuit wrote the opinion that ruled that holding hearing
in secret violates the First Amendment and the free press's attempt
to protect the "people right to know." In a suit brought
by the Detroit Free Press the court ruled that the hearing of
Rabih Haddad, who is being held on "suspected terrorism"
charges had to be held openly.16
The task of upholding the Bill of Rights will
fall to the judiciary as additional lawsuits testing the constitutionality
of the USA Patriot Act wind their way through the courts. Unfortunately,
in times of crisis, the courts have consistently bowed to the
wishes of the executive branch. During World War I, the Supreme
Court upheld the conviction of Eugene V. Debs for expressing his
opposition to our involvement in the war denying him his First
Amendment rights. During World War II, the Supreme Court upheld
an Executive Order mandating the internment of more than 100,000
Japanese-Americans, refusing to recognize their preventive detention
as a violation of the Equal Protection Clause.17
Our current Supreme Court has also violated the most basic right
to vote in the case of the Florida election results in the 2000
presidential election.
The bottom line is whether or not the USA Patriot
Act has made it less likely that terrorists will attack this country.
The honest answer has to be, "I don't know," although
95% of those polled in a recent pool said they feel less safe
since 9/11, in spite of Homeland Security and other attempts to
make our lives more secure. The next question is, "Does the
USA Patriot Act pose a threat to our civil liberties?" The
answer to that question is emphatically, yes!
What You Can Do. If you believe as I do that
the USA Patriot Act presents a threat to your civil liberties,
here are some suggestions on what you can do:
1. Inform yourself. There are hundreds of thousands
of references to the USA Patriot Act on the Internet.
2. Inform others. Ask your friends if they know about the Patriot
Act and what it could do. Many do not.
3. Contact members of Congress asking them to review the act and
consider revisions or repeal.
4. Sign a petition asking Congress to repeal this act. (The Committee
of Radical Attorneys is circulating a national online petition).18
5. Ask local elected officials to condemn this act. So far over
300 U. S. cities and municipalities have condemned the act &
many others are considering similar action. 19
6. Organize community forums to better inform the general public.
A good time to organize these is on the anniversary date of the
signing of the Act. The city of Colorado Springs held a community
forum on the first anniversary of the signing of the Patriot Act,
October 26, 2002. It was videotaped and later was shown repeatedly
on the Community Access Channel operated by the Public Library.
References
1. Straub, Noelle. (May 1, 2002). USA patriot
act powers prompt second look. The Hill. www.Hillnews.com, 1.
2. Van Bergen, Jennifer. (April 1, 2002). Repeal
the USA patriot act? (a six-part series). www.truthout.com, Part
I,1.
3. ACLU Legislative Analysis. ((November 1, 2001).
USA patriot act boosts government powers while cutting back on
traditional checks and balances. wwwACLU.org, 1.
4. Chang, Nancy. (November, 2001). The USA patriot
act: What's so patriotic about trampling on the bill of rights?
Center for Constitutional Rights, NY. www.ccr-ny.org, Part 2,1-2.
5. Ibid, Part 5, 1.
6. Ibid, Part 2, 2.
7. ACLU, 2.
8. Van Bergen, Part IV, 2.
9. Ibid, Part IV, 2.
10. ACLU, 4.
11. Chang, Part 3,1.
12. Van Bergen, Part III, 1.
13. Ibid, Part III, 2.
14.Chang, Part 5, 1.
15.Van Bergen, Part III, 1.
16. Herbert, Bob. (September 2, 2002). Secrecy
is our enemy. New York Times. www.truthout.com, 1-2.
17.Chang, Part 5, 2.
18. The Committee of Radical Attorneys. (September,
2002) Immediate and total repeal of the UAS patriot act: An online
petition. www.shamon.com, 1-2.
19. Schabner, Dean. (July 1, 2002) Patriot revolution?
Cities from Cambridge to Berkeley reject anti-terror measure.
ABCNews.com, 1-2.
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