The Other War

The Bush administration & the end of civil liberties

  • A warrant to conduct widespread surveillance on any American thought to be associated with terrorist activities can be obtained from a secret panel of judges, upon the affidavit of a Department of Justice official. If arrested as a result of the surveillance (as was the case with the attorney, Lynne Stewart), the defendant has no right to know the facts supporting the warrant request.

  • The FBI can conduct aerial surveillance of individuals and homes without a warrant, and can install video cameras in places where lawful demonstrations and protests are held. Facial recognition computer programs are used to identify persons the FBI deems suspicious for political reasons. An ACLU employee in South Carolina was recently indicted for the federal offense of being in a "restricted area" at the Columbia, South Carolina airport in October 2002, when President Bush made a political campaign appearance. (The South Carolina AG, who happens to be the son of retired Senator Strom Thurmond, authorized the indictment.)
  • Most of these restrictions on liberty were not part of the letter of the Patriot Act; they were shaped by means of rules and regulations adopted in agencies and departments of government with little notice to the public. That's because the Patriot Act granted sweeping new powers to agencies like the Department of Justice, the FBI, and BCIS to go their own way in prosecuting the war on terror.

    Will the Clinton/Bush expansion of federal powers help much in protecting the country from terrorism? That is an imponderable, since we can't know what might have happened by now, or what might happen going forward, in their absence. But the arrests hyped by Ashcroft so far don't suggest that his new powers are yielding much. One of the most notorious cases involved Jose Padilla, an American-born Muslim arrested for allegedly plotting to build a dirty bomb. Padilla is still being held without charges, and many believe it's because the government has no real case against him. (The file on Padilla is secret, obviously, but some news accounts have suggested his sole crime was attempting to download "dirty bomb" construction plans from the Internet.) Several people charged with terrorist-related acts have pled guilty to some charges, such as visiting an al Qaeda training camp (as defendants in Buffalo have recently done), or to lesser non-terrorist-related offenses (money laundering instead of financing terrorist activities), in order to avoid the risk of conviction and longer sentences. The Justice Department seeks grand jury indictments of the "kitchen-sink" variety--throw in everything remotely chargeable, and then declare victory when the defendant pleads to one or two charges.

    What we do know about these laws is that they allow government agents to be more aggressive and, when they wish, more abusive. Most of the people indicted in Buffalo and Portland have been charged with being terrorist sympathizers because they were in the presence of people themselves labeled as terrorist sympathizers (visiting their homes, for instance) or because they had contributed to a non-profit organization that the government has decreed to have a connection to terrorism somewhere in the world. Attorney Lynne Stewart was indicted for the "crime" of zealously representing a convicted terrorist she was court-appointed to defend.

     

    The proposed Domestic Security Enhancement Act of 2003

    There is no Patriot Act II. That said, it doesn't mean that we aren't constantly thinking and discussing how to make things better, safer.... So if there are some leaks... it's about what we've been thinking. --Attorney General John Ashcroft, March 4, 2003

    On February 7, 2003, the nonprofit Center for Public Integrity obtained a leaked draft of what is being called Patriot Act II. John Ashcroft immediately went on the defensive, taking pains to call it a mere trial balloon--something to get the debate moving. The version posted on the center's site at www.cpi.org belies such talk; it indicates that the draft was delivered to Vice President Cheney and House Speaker Dennis Hastert.

    Against a backdrop of perpetual war, it's hard to imagine that Congress will put up much of a fuss over Patriot II. Who could vote against better domestic security? Here are some of the more unsettling proposals:

    • Broadens the definition of Americans who could be under surveillance without a warrant, and mandates further coordination between state, local, and federal law enforcement for the purpose of conducting surveillance. Translation: The feds can instruct your local police to keep an eye on you.

    • Creates new crimes and punishments relating to nonviolent activities linked to terrorist groups, which could include making charitable contributions to a group on the State Department's terrorist list. The list includes organizations that provide humanitarian aid to Muslims across the world. Under Patriot I, the government needs to show that the contributor knowingly "aided and abetted" terror, a tall order since most people who give to Islamic charity and relief organizations are motivated by humanitarian rather than political goals.

    • Expands surveillance powers to grant easier government access to bank accounts, home computers, telephones, and credit card accounts based upon subpoenas issued by the Department of Justice. The entities subpoenaed to obtain information about you could not refuse to provide the information (an expansion of current powers under Patriot I). Evidence obtained that would link a person to terrorism or terrorist groups (as defined by the State Department) would not be disclosed except to a court (individuals would have no right to know why they were charged) and pretrial detentions would be mandatory. You would have little possibility of defending the charges.
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