Book Excerpt: The War on Civil Liberties
The following is an excerpt from The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights by lawyer, activist, and City Pages contributor Elaine Cassel. The excerpt gives a break-down of specific actions made legal under the Patriot Act.
What the USA Patriot Act Does (1)
The USA Patriot Act gives law enforcement officials broader authority to conduct electronic surveillance and wiretaps and gives the president the authority, when the nation is under actual attack by a foreign entity, to confiscate any property within U.S. jurisdiction of anyone believed to be engaging in such attacks. The measure also tightens oversight of financial activities to prevent money laundering and to diminish bank secrecy, all in an effort to disrupt terrorist finances. The act, almost 400 pages in length, amends dozens of existing laws. It also stretches the Bill of Rights in several respects. It particularly allows incursions into rights protected by the first and fourth amendments (2). Some of the more controversial civil rights incursions had been on the executive branch's "wish list" for many years (3). September 11 provided just the impetus needed to change some rules of criminal procedure for all crimes--not just crimes of terror. Some of the more drastic incursions on civil liberties resulting from the Patriot Act are:
- 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.
- The FBI can obtain warrants that "follow" a person across state lines and to any telephone or computer to which they can be traced. Prior to the Patriot Act, warrants had to be obtained in each state and for each phone number where a person could be located. Now, one warrant, often obtained in the highly conservative federal court in Alexandria, Virginia, can be enforced wherever the person is.
- 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) was indicted for aiding and abetting terrorism based on conversations with her client.
- The FBI can order librarians to turn over information about their patrons' reading habits and Internet use. The librarian cannot inform the patron that this information has been provided. Librarians, on the whole, are outraged at their new role; some have taken to posting signs in the library warning users not to use the Internet, others to destroying their logs of Internet users. One librarian said to a Washington Post reporter, "This law is dangerous . . . I read murder mysteries--does that make me a murderer? I read spy stories--does that mean I'm a spy?" (4)
- Law enforcement can gain access to information on citizens by obtaining a secret warrant--known as a sneak-and-peak warrant--that gives no advance notice to the person whose home or possessions are to be searched. A standard criminal search warrant gives notice to the individual of the premises to be searched and the probable cause for the search (e.g., that, based on a reliable information, there is reason to believe that a certain crime has been committed) before the search is conducted. It is served on the person if the person is at home, or it is left at the premises and the search is done later. These new sneak-and-peek warrants allow law enforcement to search first, whether the individual in question is present or not, and give notice to the individual later.
- Foreign citizens charged with a terrorist-related act may be denied access to an attorney, and their right to question witnesses and otherwise prepare for a defense may be severely curtailed if the Department of Justice states that this is necessary to protect national security. Jose Padilla, the American Muslim fingered by Ashcroft last year as a would-be "dirty bomb" builder, is a case in point. Resident alien men from primarily Middle Eastern and Muslim countries were required, until late 2003, when the program was abandoned, to report to immigration offices for registration. Once there, hundreds who reported were detained, arrested, tried, and deported for minor immigration infractions. Many were refused the right to appear with their attorneys, a refusal that is a violation of U.S. Citizenship and Immigration Services (USCIS; formerly known as the INS) regulations. Though the government has the right, if it chooses, to exercise a zero tolerance policy for immigration violations, in this instance the policy was enforced only against Arabs and Muslims. (In late 2003 the USCIS announced that it was abandoning this reporting requirement, but it did not say why it was doing so.)
- Lawful foreign visitors may be photographed and fingerprinted when they enter the country and be required to periodically report for questioning. This provision began to be enforced in early 2004.
- The government can conduct surveillance on the Internet and e-mail use of American citizens without any notice, upon order to the Internet service providers (ISPs). Providers who move to quash such subpoenas may be charged with obstructing justice.
- The Transportation Security Administration (TSA) can search any car at any airport, without a showing of any suspicion of criminal activity.
- The TSA can conduct full searches of people boarding airplanes and, if the passenger is a child, the child may be separated from the parent during the search. An objection by a parent or guardian to the search will put the objector at the risk of being charged with the crime of obstructing a federal law enforcement officer and tried in federal court. Travelers in Portland, Oregon, and Baltimore, Maryland, have reported such arrests.
The TSA is heading up a program to amass all available computerized information on all purchasers of airline tickets in order to categorize individuals according to their threat to national security and embed the label on all boarding passes. The Computer Assisted Passenger Prescreening System program is designed to perform background checks on all airline passengers and assign each passenger a "threat level." Passengers will not be able to ascertain their classification or the basis for the classification. Based on the coding, airline employees and security agents will subject certain passengers to greater pre-boarding scrutiny and deny boarding to others.
The TSA distributes a "no-fly" list to airport security personnel and airlines that require refusal of boarding and detention of persons deemed to present risks of terrorism or air piracy or to pose a threat to airline or passenger safety. This is an expansion of a regulation that since 1990 has looked out for threats to civil aviation. Names are added daily based upon secret criteria.
Immigration authorities may detain immigrants without any charges for a "reasonable period of time." Immigration authorities need not account for the names or locations of the detainees, and what constitutes a "reasonable period of time" is not defined. Another highly controversial provision of the act (Section 412) permits the U.S. attorney general to detain alien terrorist suspects for up to seven days if he certifies that he has reasonable grounds to believe that the suspects either are engaged in conduct that threatens the national security of the United States or that they are inadmissible or deportable on grounds of terrorism, espionage, sabotage, or sedition. Within the specified seven days, the attorney general must either initiate removal or criminal proceedings or release the alien. If the alien is held, the determination must be reexamined every six months to confirm that the alien's release would threaten national security or endanger some individual or the general public. The attorney general's determinations are subject to judicial review through writs of habeas corpus.
American colleges and universities with foreign students must report extensive information about these students to immigration authorities, which may in turn may revoke student visas for missteps as minor as a student's failure to get an advisor's signature on a form that adds or drops classes. College personnel cannot notify students about the lapse in order to save them from deportation. To a very large extent, campus police and security personnel have become agents of the immigration authorities.
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 on the special FISA, upon the affidavit of a Department of Justice official. If arrested as a result of the surveillance (as was the case with attorney Stewart), the defendant has no right to know the facts supporting the warrant request. Prior to the Patriot Act, a FISA warrant could not be obtained to target an American citizen. It was only to be used for foreign counterintelligence. Other provisions in the Patriot Act allow those who conduct surveillance to share information with law enforcement authorities. Thus, law enforcement officers can have access to information obtained without the usual protections of criminal laws relating to search and seizure.
- 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 is being prosecuted 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. He was not arrested for just being there, however, but rather because he was displaying an antiwar placard. The U.S. attorney in Columbia, South Carolina, who brought the charge is the son of the late Senator Strom Thurmond (R-SC).
By far the most alarming aspect of the Patriot Act is the way in which it fosters guilt by association--something most Americans think went out with McCarthyism and J. Edgar Hoover. Today, however, the most tenuous connection of an individual to a "terrorist organization" (as designated by the secretary of state) or "terrorist state" can now lead to serious federal charges.
(1) Uniting and Strengthening America by Providing Appropriate Tools Required to Intersect and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Public Law 107-56, 107th Congress, 1st sess (October 21, 2001). The full text of the act is available online at the Web site for the Electronic Frontier Foundation (accessed February 9, 2004).
(2) Elaine Cassel, "The Other War," City Pages (Minneapolis, MN), April 23, 2003 (accessed February 9, 2004).
(3) Norman Oder, "Forum Considers Effect of September 11," Library Journal, April 15, 2002 (accessed March 11, 2004).
(4) Rene Sanchez, "Librarians Make Some Noise Over Patriot Act," Washington Post, April 10, 2003, p. A20 (accessed March 11, 2004).
Reprinted from The War on Civil Liberties by Elaine Cassel. Text copyright 2004 Elaine Cassel. Published by Chicago Review Press (distributed by IPG).
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