The Other War

The Bush administration & the end of civil liberties

  • Allowing the government to deport immigrants based on undisclosed evidence;
  • Making it a crime to support even the lawful activities of an organization labeled as a terrorist group by the State Department;
  • Authorizing the FBI to investigate the crime of material support for terrorism based solely on activities protected under the First Amendment, notably specifically allowing agents to attend religious services at Muslim mosques "undercover";
  • Freezing assets of any US citizen or domestic organization believed to be an agent of a terrorist group, without specifying how an "agent" was identified;
  • Expanding the powers of the secret court that administers the Foreign Intelligence Surveillance Act (FISA), where federal judges sit in secret to consider--and mostly rubber-stamp--Justice Department requests for widespread surveillance of "terrorists." The surveillance methods in question include pen registers and "trap-and-trace" logs, methods that can capture incoming and outgoing telephone calls;
  • Repealing the law that barred the FBI from opening investigations based solely on activities protected under the First Amendment--such as the anti-CISPES investigations--and allowing such surveillance to go forward if the individuals were believed to be associated with any person or organization labeled as "terrorist;"
  • Allowing the Immigration and Naturalization Service to deport (mostly Muslim) citizens upon the order of INS officials. The evidence typically was not disclosed to the deportees, and the decision of the official was not subject to challenge in a federal court.


The USA Patriot Act of 2001

How will we fight and win this war? We will direct every resource at our command--every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war--to the disruption and to the defeat of the global terror network. --President Bush, September 20, 2001

With little debate, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001 was passed just six weeks after the September 11 attacks. Though several elected officials expressed trepidation at what appeared to be a dismantling of the first, fourth, fifth, and sixth amendments to the Constitution, only one member of the Senate, Russell Feingold (D-Wisc.), had the courage to vote against it.

The media was slow to pick up on the controversial provisions of the act, which, within its more than 275 pages, amended dozens of existing criminal and civil statutes. It wasn't until mid-2002, when the Justice Department began to hand down indictments under the act, that people started to take notice.

The act expanded guilt by association to the point that the most tenuous connection to a "terrorist organization" (as designated by the Secretary of State) can now lead to charges. Several groups of people have been indicted for operating terrorist cells in Portland, Buffalo, Detroit, and Moscow, Idaho. The trial in the Detroit case began in the third week of March and is expected to last for six weeks or more. Some charges against Muslim charities have led to plea bargains to drop terrorist charges in exchange for pleas to minor tax or fraud charges. The government's successes in the courtroom have not, to date, matched John Ashcroft's bravado in announcing the indictments in public press conferences. But the chilling effect of being arrested for crimes of terror cannot be underestimated, as many American citizens and resident aliens have learned.

Some of the more drastic incursions on civil liberties resulting from these Patriot Act provisions:

  • It is a crime for anyone in this country to contribute money or other material support to the activities of a group on the State Department's terrorist watch list. Organizations are so designated on the basis of secret evidence, and their inclusion on the list cannot be challenged in court. Members of any such targeted organization can be deported even if they have not been involved in any illegal activities. The government freely admits that some of the groups it will designate are broad-based organizations engaged in lawful social, political, and humanitarian activities as well as violent activities.

  • The FBI can monitor and tape conversations and meetings between an attorney and a client who is in federal custody, whether the client has been convicted, charged, or merely detained as a material witness. New York City attorney Lynne Stewart (the court-appointed representative of Sheik Abdel Rahman, who was convicted in the 1993 World Trade Center bombing) has been indicted for aiding and abetting terrorism based on conversations with her client. Her trial is set for January 2004, and the prosecution is clearly intended as a warning: Attorneys representing people charged with terrorism-related crimes will be watched as closely as the defendants.

  • Americans captured on foreign soil and thought to have been involved in terrorist activities abroad may be held indefinitely in a military prison and denied access to lawyers or family members. No federal court can review the reason for the detention. Such is the plight of Yaser Hamdi, detained in a Navy brig in Norfolk, Virginia, whose family and attorney made valiant efforts to gain access to him. The Fourth Circuit Court of Appeals overturned a federal trial judge's order that Hamdi be allowed to meet with the federal public defender.
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