PATRIOT Act
Congress has passed a sweeping attack on Americans' civil liberties. Its full name is the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act," but will be more commonly known as the "USA PATRIOT Act." On October 26, 2001, President Bush signed it into law.
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The full details of what this new act will entail for Americans are not yet entirely clear, but included among its provisions are things like secret property searches, detaining people without charges, jailing people with secret evidence, roving wiretaps, expanded monitoring of the internet, access to private medical records, and now even secret military tribunals.
How did it get passed? The chief tactic seems to have been by simply hiding what was in the proposed legislation. When the House voted 337 to 79 in favor of it on October 12, hardly anyone had had time to read the 175-page bill. Democratic congressman John Conyers complained that only two copies of the bill were available to his side of the aisle. The Senate passed a similar, 243-page bill 96-1 which few there had time to read.
But Barney Frank probably said it best:
This was the least democratic process for debating questions fundamental to democracy I have ever seen. A bill drafted by a handful of people in secret, subject to no committee process, comes before us immune from amendment.
Secret Evidence
Will there be abuse when non-citizens can be detained without evidence? Absolutely - that has already happened under current, more restrictive rules. One unfortunate example of this is the case of Mazen Al-Najjar, a Palestinian professor at the University of South Florida who has lived in the U.S. for 20 years. He was jailed for over three years by the Immigration and Naturalization Service. Why? That isn't clear - evidence of wrongdoing was never shown to him or his attorney.
True, he headed a charity which officials suspected was a front for a Palestinian terrorist group, and that would be a serious charge to make. But he was never charged with a crime, and if he was so dangerous that he had to be held in custody for three years, why was he never brought to trial? He was released in December of 2000, when a federal judge in Miami found that his rights had been violated - but of course the government is appealing the case.
The government has also evidently harrassed those who supported Al-Najjar and who worked to have him freed. During one federal court hearing, supporters who were carrying protest signs while marching on the sidewalk in front of the court were openly photographed by an FBI agent. Other agents made unannounced visits to people's homes and workplaces, including that of a doctor where they flashed their badges openly in a waiting room and scared his patients.
If these measures are important for dangerous but unusual cases, then there is no reason to think that the government won't push to use them in more common cases.
During the same hearing mentioned above, Al-Najjar's eleven-year-old daughter was prevented from hugging him (it had been over a year since she was allowed that simple privilege) and even chastized by another agent for daring to cry about it. Those wishing to attend the hearing all had their ID's checked, and some even had their heights recorded.
When our government does not think that it is a violation of anyone's rights to hold them for over three years without ever charging them with a crime, and without ever showing them any evidence that they have done something wrong, we are in trouble. But when that government feels that it should have more power and leeway to do such things, we are in more trouble than we realize.
Unfortunately, Al-Najjar isn't alone - his case was is simply one of more than two dozen where immigrants have been held for months or years based entirely on secret evidence and without any formal charges or trials. After the September 11th attacks, more than one thousand people were detained. Most are still being held, but their names have not been released and only their lawyers have very limited contact.
Even worse, new rules have been instituted which will allow for the government to monitor all phone conversations between these detainees and their lawyers. Usually prisoners must accept that any phone conversation may be monitored, but those with lawyers are always protected. Yet now, the privilege of the attorney-client relationship is being completely eliminated. This is not a temporary situation: these new rules will be employed any time the government claims that they are necessary to prevent terrorism, and even if the people in question have not been charged with any crimes.
It is true that some prisoners have been caught trying to arrange crimes when their conversations with non-lawyers were monitored, and presumably the government hopes for similar success by monitoring all phone conversations of the detainees. Yet we must remember that these people have not been charged with any terrorist activities - most are only being held on visa violations, which does not give the government the right to eavesdrop on tradtitionally protected conversations for the sake of a fishing expedition.
In fact, why should we assume that the government will stop there? Americans suffer from other violent crime much more than they suffer from terrorism - why not eliminate lawyer/client privilege in all cases? If these measures are important for dangerous but unusual cases, then there is no reason to think that the government won't push to use them in more common cases.
It is perhaps worth noting that during the 2000 election season, both candidates supported legislation which would eliminate the use of secret evidence in this manner. Apparently, Bush is no longer sticking to his principles (assuming that he ever had any in this matter to begin with).
But that is not to say the Clinton was any better. His attorney general, Janet Reno, repeatedly worked to block the release of Al-Najjar, even after a court ordered that he be released on bail. His administration also argued before the Supreme Court that the use of secret evidence was justified and that immigrants involved in such cases should be refused access to federal courts.
Unfortunately, the Supreme Court agreed in the case ADC v. Reno. Although that case did not involve Al-Najjar, it did involve eight aliens who violated the (now repealed) McCarran-Walter Act, which provided at the time for the deportation of aliens who "advocate ... world communism." In their decision, the Court not only validated the selective use of secret evidence, but went so far as to declare that:
The Executive should not have to disclose its "real" reasons for deeming nationals of a particular country a special threat--or indeed for simply wishing to antagonize a particular foreign country by focusing on that country's nationals...
Even worse, the Court actually admitted that there might occur a case where the "basis of discrimination is so outrageous" that all of their arguments in support of secret evidence would be overcome; but since they ruled that the people involved in such cases would be barred from appealing to federal courts, will we ever find out about those cases? The Supreme Court certainly won't be troubled by such a case, they have seen to that.
What the Supreme Court failed to acknowledge in this case is that the right to confront your accuser, to hear the evidence against you, and to secure a speedy trial are fundamental tenets of the American justice system. Because of this, the use of secret evidence abrogates our right to due process and violates our trust in our government's willingness to abide by the Constitution.
Expanded Surveillance
Another aspect of the new rules includes new, expanded abilities of the government to watch its citizenry, and that also has a history of abuse. A. Mitchell Palmer, attorney general under President Woodrow Wilson, used the power of the government to eliminate unions and even attack the headquarters of the Communist and Socialist parties.
That, too, was a time when people feared foreign agents, and in 1919, he took more than 200 resident aliens who were believed to have radical views, put them on a boat and shipped them to the Soviet Union. That certainly wasn't the last time the government used its power to go after suspected subversives - even Martin Luther King was followed.
We must remember that a lack of "domestic intelligence" is the price we pay for not allowing the government expansive powers to spy on us whenver it wants.
It is important to note that in both the union movements and in the civil rights movements, there were people who were communists. Among those communists were indeed those who advocated a change in the American government - some even advocated a violent overthrow of that same government. But that doesn't mean that all communists felt that way, and certainly not that all members of unions or civil rights marches felt that way.
Yet because there were a few, and because those movements were generally a challenge to the prevailing social order and agitated for fundamental changes in the structures of power, all members were viewed with suspicion, and the groups as a whole suffered from the abuse of governmental powers.
Roving wiretaps sometimes make sense, because it is easier to monitor the phone calls of a person who habitually uses many different phones. But monitoring the incoming and outgoing calls of any phone which a suspect uses can be problematic, because if one of those phones belongs to an organization of which the suspect is a member, federal agents can thus monitor the activities of the entire group. Even worse, there are apparently no checks to ensure that the government is only tapping the phones which a suspect is actually using.
Will you be monitored more on the internet? Absolutely - the government can even now spy on your web surfing habits! They can monitor what terms you put into search engines, and all they have to do is tell a judge - any judge anywhere in the U.S. - that this spying could lead to information "relevant" to some current investigation.
It doesn't matter if the person being spied upon is actually a target of that investigation, of course. Even more disturbing is that the government is not asking the judge for permission to spy - the government is telling the judge that it will spy. The application for spying must be approved, and the government will have no obligation to report further to the court or even to ever inform the person being spied upon.
And there are a variety of other provisions which will allow for greatly increased spying on Americans - for example, any U.S. Attorney or state attorney general will have the power to install the Carnivore e-mail snooping system in "emergency situations" without obtaining a court order. Also, telephone voice mail messages can be seized by law enforcement with just a search warrant. A search warrant is issued with less court scrutiny than a wiretap warrant, which was previously required for such messages.
Considering the history of abuse when regulations have been stricter, why would anyone want to weaken the restrictions on government power? We must remember that a lack of "domestic intelligence" is the price we pay for not allowing the government expansive powers to spy on us whenver it wants.
British Model
Is the United States simply following the British model of combatting terrorism? In response to violent attacks by the Irish Republican Army, the British Parliament passed, without objections, the Prevention of Terrorism (Temporary Provisions) Act in 1974. Like the American PATRIOT Act, it too had a provision for expiration, but after one year instead of four. Naturally the government re-approved it every year.
Under the Act, anyone suspected of terrorism could be stopped and searched without warrant. The Act made it illegal to hold either a private or public meeting which would be addressed by a member of a prohibited organization. The Act provided for an "exclusion order" which would bar a person from entering a particular part of the United Kingdom, and people subject to this "internal exile" had no right to see the evidence against them, to cross-examine or confront accusers, or to have a formal public hearing.
Eventually, the European Court of Human Rights found the Act violated the European Convention on Human Rights, which requires suspects to be "promptly" brought before a judge. Despite this, the British government has evaded the ruling by invoking a provision which allows countries to ignore the Convention on Human Rights "in time of war or other emergency threatening the life of the nation."
And the government did not stop there. More laws allowed a suspect's silence under police questioning to be used against them in court - something which at first only applied in Northern Ireland, but which was expanded to include all of Britain. Wiretaps no longer needed judicial approval, and in Northern Ireland, jury trials were no longer used in cases of political violence.
All of this should sound very familiar, because many the same tools are now available to the American government. Did they help the stop terrorism in Britain? No, not really. Did they remain limited to cases of terrorist acts? Again, no - they spread throughout the judicial system.
Efforts to suppress liberty in the name of national security continue today throughout Europe. British Home Secretary David Blunkett has derided people's concern for "airy-fairy civil liberties" while Parliament has enacted emergency legislation allowing for detention without trial for renewable six-month periods. Officials are also now permitted to jail uncooperative witnesses in terror investigations and to search and take into custody airline passengers who seem suspicious.
In France, marines and police officers who patrol the subway now have the power to intercept travelers and search their baggage without reason. In Germany, officials have started using computer profiles in searches of public and private records while looking for patterns to help find suspects. Other proposed rules would allow the police to monitor telephone conversations, email and bank accounts with less oversight and essentially without demonstrating probable cause of suspicion of anything.
Beyond Terrorism
There are also aspects of this new law which appear to have little or nothing to do with actual efforts to combat terrorism. People suspected of "computer trespass," for example, can now be spied upon without any court orders or court oversight. This is probably an effort against computer hackers, but what does that have to do with the September 11th attacks?
Another provision requires the collection of DNA samples of terrorists, but also of anyone convicted of "any crime of violence." It is unclear what the value is when limited just to terrorists, but the deliberate expansion beyond terrorists makes it clear that the new law is designed to expand police powers across the board.
The very question of what constitutes terrorism is also important, because the PATRIOT act expands the definition of the term in ways which are potentially dangerous. According to it, domestic terrorism will "involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State"
Although that sounds almost innocuous, it isn't hard to imaging even ostensibly peaceful protest marches or rallies turning violent. If that happens, it would be easy for authorities to prosecute not simply those who committed violent acts, but even the peaceful organizers as terrorists.
We certainly can't expect the courts to help us - in times of fear and crisis, the courts have proved relatively ineffectual when it comes to protecting people's civil liberties against government powers of policing and punishment.
Members of groups like Operation Rescue, the Environmental Liberation Front and even Greenpeace, for example, have engaged in activities that could subject them to prosecution under the above definition. Then the dominos begin to fall, and those who provide lodging or other aid to these "domestic terrorists" can have their homes wiretapped, searched without their being informed, and eventually prosecuted.
Before the bill was passed, President Bush urged Congress to approve the provisions in the PATRIOT Act by claiming that it would provide law enforcement "every necessary tool" to fight terrorists. Unsurprisingly, with regards to the sweeping anti-terrorism legislation passed in 1996, a senior FBI agent told Time magazine in 1998: "Any one of these extremely valuable tools could be the keystone" to successful operations against terrorists.
But did it really help us then? Will these new police powers help us now?
We certainly can't expect the courts to help us - in times of fear and crisis, the courts have proved relatively ineffectual when it comes to protecting people's civil liberties against government powers of policing and punishment. They are, after all, also human beings who are part of the same culture as us. They have the same fears as others, and can also be willing to trade our liberty for the sake of imagined security.
In 1944, two years after the Japanese were put in camps, the Supreme Court ruled 6 to 3 that there was no reason to second-guess the military authorities. In his majority opinion, Justice Hugo Black wrote:
There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot by availing ourselves of the calm perspective of hindsight now say that at that time these actions were unjustified.
During World War I, our government imprisoned thousands of Communists, anarchists and pacifists because their beliefs were deemed to be threats to the established social order. Socialist party leader Charles T. Schenck, for example, was convicted and jailed because he wrote and distributed leaflets urging young men to resist the military draft.
His situation, and his court challenge, are among the best known from this time period. It was in the 1919 Supreme Court unanimous decision against his appeal that Justice Oliver Wendell Holmes's made his (in)famous statement that sometimes speech poses a "clear and present danger" of causing an evil that Congress has the right to prevent.
The path which lies before us is unclear. What is obvious, however, is that our government - executive, legislative, and judiciary - cannot be entirely relied upon to protect our civil liberties when a "national emergency" presents the temptation to increase police powers. There are certainly a few in government whose interest in liberty outweighs their interest in power, and we should support them as much as we can. Together, we may be able to turn back some of this awful legislation and restore some of the basic principles of freedom which lawmakers pledge to defend.