The USA PATRIOT Act was passed on October 26, 2001, with only one U.S. Senator voting against it. The House passed the Act by a 357 to 66 margin. Most Senators and Congresspeople had not read it. Most Americans had never heard of it. Since then it has become one of the most controversial pieces of legislation in U.S. history and the centerpiece of U.S. secret investigation and prosecution of its own citizens.
Sixteen sections of the Act were scheduled to expire on December 31, 2005, including the controversial Section 215, the socalled library records provision. Other controversial sections were the socalled “sneak and peek” features of Sec. 213, which permitted the government to secretly search the homes of individuals while they were away, without prior notice and without probable cause. Only a pro forma warrant from a secret court was required. Only delayed notification of a search was necessary, sometimes months later.
Sec. 505 gave the Justice Department the authority to issue National Security Letters (like subpoenas) to obtain a wide variety of business, financial, and Internet information about individuals from businesses and other organizations, and to obtain membership lists of organizations without court supervision. The letters were accompanied by gag orders that prohibited the recipients from even mentioning them, let alone challenging them.
Sec. 216 permitted the government to obtain the subjects of private email communications and the places people visited while using the Internet, such as Google searches, again without probable cause.
All Justice Department lawyers were required to do was present a request to the Foreign Intelligence Surveillance Act court (FISA), stating that the information was sought “in connection with a terrorist investigation.” Proceedings before this secret court are not adversarial. Only one side appears before the court and is represented by a lawyer—the government. In 2004 the FISA court did not deny a single government request out of 1,758 applications.
The claimed purpose of this activity was to investigate and prevent terrorism. But it soon became apparent that the government envisioned a far more expansive role for the PATRIOT Act: to prosecute ordinary crimes, under lesser evidentiary standards; to gather information about political groups; to infiltrate groups engaged in legitimate, constitutionally guaranteed protests; to intimidate individuals and groups who sought to protest at both the Democratic and Republican national conventions; to keep protesters removed from the president’s vision, behind cyclone fences; and to investigate and intimidate the organizers of many innocent activities, such as art shows, school drawings, auto shows, personal posters in homes, animal rights groups’ activities, and individuals and groups who protested the PATRIOT Act and the Iraq war.
Wasted Effort, Wasted Money
The PATRIOT Act and the climate of surveillance it spawned have led to some extraordinary and bizarre actions. The Department of Homeland Security (DHS) and various federal agencies, flush with funds to fight terrorism, have been throwing money at phantom targets with little or no regard for its effectiveness. Law enforcement agencies at state and local levels have only to ask for funds to initiate programs that once would have been laughed at, by merely claiming it’s about the security of Americans.
The DHS budget for fiscal year 2003 was $3.5 billion; $1.5 billion was earmarked for grants to state and local preparedness activities for equipment, training, exercises, and planning. States were required to allocate 80 percent of these funds to local gov ernments.
Dillingham, a small hamlet in Northwestern Alaska, population 2,400, recently applied for and received a Homeland Security grant for $202,000 to “defend against a terrorist attack.” The money was used to purchase and install 80 surveillance cameras, one for every 30 residents of the town. Some of the locals chuckle at such waste while others consider the cameras, which are ubiquitous, an invasion of their privacy. But the town police chief, who applied for the grant, defends their installation because terrorists, he asserts, could backdoor the U.S. by entering through an obscure, nowhere fishing village.
As it turned out the PATRIOT Act was the least of Americans’ worries about secret surveillance. Not content with the increased powers of surveillance afforded by the PATRIOT Act, it was revealed recently that as early as 2001 the president authorized the conduct of secret surveillance of U.S. citizens completely outside any law or judicial oversight whatsoever, including that of the rubber stamp FISA court. This activity is conducted under the auspices of the National Security Agency (NSA). Until recently the executive office had refused demands from Congress to provide details of these activities, claiming some sort of executive privilege. The White House has reluctantly agreed to brief members of the Senate and House Intelligence committees, but no one really expects it will be very forthcoming.
Retreating further from public disclosure, the government moved recently to reclassify thousands of CIA and other documents that previously had been declassified. An internal review concluded that the documents were improperly reclassified.
On allegations that AT&T was cooperating with the government to turn over customer records to the Justice Department, Justice Department lawyers intervened in a lawsuit by the Electronic Frontier Foundation against AT&T, even though the government was not a party to the suit. The government claimed its intervention to have the suit dismissed—on grounds that it threatened to reveal government and military secrets—should not be construed as an admission that the allegations are true.
Then it was revealed in USA Today (May 11, 2006) that AT&T, Verizon, and Bell South had been cooperating with the federal government since shortly after 9/11 to turn over the telephone records of tens of millions of Americans suspected of nothing. The purpose of this data mining operation was not made clear, other than the usual administration protestations that it is to protect the safety of Americans by trolling massive amounts of data in search of calling patterns. What is clear, however, is that these actions constitute violations of the privacy rights of these telephone company customers and may violate federal laws.
The PATRIOT Act has been used to prosecute ordinary crimes that were not the original intent of the Act. But it also has been employed to prosecute activities which can only be described as overreaching. One example involved Sami alHussayen, an Idaho University student who was a computer technician hired as a webmaster for the Islamic Assembly of North America. AlHussayen’s duties included providing web links to speeches by leading Muslim scholars, some of which advocated violence, including suicide missions. He was charged under Section 805 of the PATRIOT Act, which makes it a crime to provide “expert advice and assistance” to a terrorist organization. Al Hussayen was acquitted of all charges by a jury, but agreed to be voluntarily deported.
Opposition to the PATRIOT Act
As the PATRIOT Act became more widely known and understood, it raised increased concerns. Various civil rights organizations and the public became involved. There were numerous legal challenges to the Act and public interest groups organized grassroots opposition to its worst features.
At the same time there was growing opposition to the general unconstitutional use of surveillance of Americans from an important segment of the legal community. On February 15, 2006, the usually staid American Bar Association issued a strongly worded statement, overwhelmingly approved by its legislative body, the House of Delegates. It calls on the president to abide by constitutional checks and balances and to end electronic surveillance within the United States that is not in compliance with the Foreign Intelligence Surveillance Act.
Last August the presidentelect of the American Bar Association (ABA) stated that some of the federal government’s investigative powers included in the PATRIOT Act are threats to constitutional rights. He indicated that the ABA had taken four or five policy positions in opposition to actions of the Bush administration that violate due process rights.
In Congress an increasing number of re presentatives and senators expressed serious concerns about the PATRIOT Act and the uses to which it had been applied in violation of constitutional rights. A “Right to Read” bill was introduced to counter the provisions of Sec. 215. Other measures to correct specific abuses were proposed. None of them got past committee.
Since passage of the Act more than 400 local and state governments, including 8 states, passed resolutions opposing it. Some even vowed not to enforce it. California is the most recent state to enact a resolution critical of the Act, on February 16, 2006, and is the largest state to do so. Together these governments represent almost 85 million Americans, nearly 30 percent of the population.
The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) have sued the government for civil rights violations in a number of instances and have seen some degree of success in the courts.
Opinion polls of lawyers, police chiefs, political scientists, and constitutional scholars revealed grave concerns with the Act’s encroachment on the civil liberties of Americans. Countless other groups, organizations and individuals have taken positions opposing many of the more egregious civil rights violations contained in the Act. Public opinion polls have shown that Americans are increasingly skeptical about the Act and concerned with government spying and restrictions of civil liberties.
Four librarians from Connecticut, who were served with National Security Letter subpoenas for library records of patrons and gag orders in August 2005, finally went public when a federal judge lifted the gag order. But it was first necessary for the ACLU to file suit on their behalf.
So what has all of this opposition achieved? Unhappily, very little. In some respects matters have gotten worse. By and large, the Administration and the U.S. Congress have ignored the American people and the weight of legal and scholarly authority in opposition to continuing civil rights violations pursuant to the Act. Measures introduced in Congress to curtail some of the Act’s most invasive features have died in committee or been permanently tabled. Sixteen parts of the original Act that were scheduled to expire on December, 31, 2005, unless renewed, were renewed. One of these was Sec. 215, the socalled library records provision.
As Congress began to consider renewal, several bills to limit certain features of the PATRIOT Act gained the support of a bipartisan majority in the House. But these were beaten back by the Republican leadership, under intense pressure from the White House.
Last December 52 Senators challenged the Administration and filibustered the PATRIOT Reauthor ization bill, in an attempt to reform some of the Act’s worst features and protect the civil rights of innocent citizens. But they were unable to muster sufficient support to derail the reauthorization. Following an emergency temporary extension of the Act because a congressional stalemate could not be overcome before the congressional holiday recess in early March the Reauthorization passed by 8911 in the Senate and by 280 to 138 in the House. It was signed into law on March 9, 2006. The president issued a signing statement at the same time indicating that despite the Act being what his Administration sought, he would not comply with parts of it that require the Administration to report on uses of the Act to the Congress. In the reauthorization the main controversial provisions remain intact, including Sec. 213, Sec. 215 and Sec. 505, National Security Subpoenas. Key features are:
* A new fouryear sunset date on three provisions; Sec. 215, Sec. 206 (“John Doe” roving wiretaps, which allow for multiple phones to be tapped with no required relation to a terrorism investigation)
* The socalled Lone Wolf provision (added in 2004) that authorizes secret surveillance of nonU.S. citizens without a showing that they are acting on behalf of a foreign government
* FBI use of National Security letters, denominated National Security Subpoenas (NSS) without a warrant was expanded and made more coercive and more punitive. Any employee who discloses a records demand made by the government can be imprisoned for five years
* Customers or employees about whom sensitive personal records are demanded can never be informed they are the target of an investigation
* Recipients of NSSs may contact a lawyer and challenge the request but may not challenge the restriction on their own free speech rights for one year; the burden imposed on anyone challenging a NSS is virtually insurmountable, as one must show bad faith without being able to see the government’s records
* An attempt failed in the Senate to shorten the delayed notification of Sec. 213 Sneak and Peek searches to seven days, subject to exceptions and extensions on request; no showing of any link to terrorism whatsoever is required
* The broad definition of domestic terrorism under the original PATRIOT Act is now limited to specified federal terrorism crimes, a modest victory for opponents of the broad sweep of the Act
* Secret Service powers to limit access to “national security events,” whether or not security is needed to protect any official, are expanded; these are the socalled free speech zones and anyone using false credentials or violating a designated SS perimeter can be charged with a federal crime
* New restrictions on the sale of overthecounter cold and allergy medications, which contain a key ingredient used in the production of methamphetamines, apparently on the assumption that terrorists get high on meth before carrying out terrorist acts
* Creates several new federal offenses linked to terrorism that carry the death penalty
How to Spot a Terrorist
State and local law enforcement agencies have been eager to join in the terrorism investigation game with the availability of large amounts of federal money. Soon after 9/11, local officials in DeKalb County outside Atlanta, set up what they described as the nation’s first local department of Homeland Security. The county quickly obtained almost $12 million in federal grants to fight terrorism. A police intelligence unit was established.
Among the intelligence unit’s accomplishments was the assignment of two agents to tail the county executive, not because of any suspected terrorist activities, but to discover if the executive was being tailed by a district attorney investigator who was looking into alleged misappropriation of county funds. Subsequently, one of the unit’s plainclothes agents was assigned to photograph a group of vegan activists passing out antimeat pamphlets. Police demands for the group’s notes, which only contained the license number of an undercover police vehicle that had been tailing them, were challenged in a lawsuit filed by the ACLU.
In one of the more bizarre episodes in a continuing saga of paranoia and silliness, the state of Texas issued a pamphlet alleged to help the public identify potential terrorists. Some characteristics people were advised to watch for were: the purchase of baby formula or beer, the wearing of Levi jeans, carrying identifying documents such as a driver’s license and traveling in the company of women and children. This quickly narrowed the range of terrorist suspects to about 80 percent of all men in the state.
Not to be outdone, a Virginia public employee training manual used to assist public employees in identifying terrorists lists antigovernment and property rights activists as terrorists and identifies binoculars, video cameras, pads, and notebooks as typical terrorist tools. Aside from the silly examples noted above, the Act has been used to:
1. Prosecute and imprison for 2 years a love sick 20yearold who posted threatening messages on a cruise liner in hopes it would return to port and she could be reunited with her boyfriend.
2. ttempt to prosecute a Connecticut librarian for refusing to disclose the names of library patrons and what they read to the FBI and then trying to speak out publicly about the matter. (The government dropped its objection recently, for undisclosed reasons.)
3. Prosecute multiple money launderers and drug dealers who could be prosecuted under ordinary criminal statutes.
4. Charge a student at the University of Idaho under Sec. 805 for supplying web links to speeches by prominent Muslim scholars, some of which advocated violence, to his employer, the Islamic Assembly of North America. (Could national news media be prosecuted for providing links to taped statements by Osama bin Laden?)
5. Search the home of Brandon Mayfield, a Portland lawyer, and an Islam convert, and arrest and hold him for two weeks as a material witness in the Madrid train bombings because the FBI mismatched his fingerprints with those of one of the real Madrid bombing suspects. The PATRIOT Act was misused to obtain the search warrant by claiming it was in connection with a terrorist investigation when it was for a purely criminal matter.
6. Issue more than 30,000 National Security Letters a year for the last three years.
7. Initiate data mining operations designed to profile millions of innocent persons in a national data bank containing medical, Internet use, travel patterns, video rental records etc.—just because.
8. Begin the assembly of a realtime census of every visitor to Las Vegas over a fourday period—about a million people—because of intelligence that hinted at a terrorist attack in that city on New Year’s eve. The government sought from casinos and other businesses detailed hotel guest lists, car rentals and storage unit rentals data on every airline passenger who landed in the city, and every conceivable link, by shared address, utility account, check deposits, and phone calls. When the investigation was halted because of strong protests by casino operators and hoteliers, the FBI retained all the data already collected.
9. Send FBI investigators six times to visit Sarah Bardwell, an intern at a Denver antiwar group, in an apparent attempt to intimidate her and other members of the group from attending political protests.
10. Launch a fullcourt press by the FBI in the weeks leading up to the Democratic and Republican National conventions to identify anyone with knowledge of any person or organization planning any violent or disruptive actions, by interviewing dozens of individuals in six states, including past protesters, and members of their families and friends.
The FBI reports that cases in which it acted as the lead investigator fell from 19,000 in fiscal year 2001 to 14,000 in fiscal 2005, with convictions down from about 13,500 to just over 12,000. The number of white collar crime prosecutions fell by more than 40 percent. Drug cases also declined by 40 percent. The FBI blames the decrease on terrorist investigations and convictions, which increased from 84 to 336 during the same period. Of 174 reported terrorism related convictions, the Government Accountability Office found that threefourths should not have been labeled “terrorism.” Immigration and other lowlevel violations were being counted as terrorism.
Three years ago I argued that the trappings of a U.S. police state already were taking shape, that civil liberties, once lost, are seldom voluntarily restored. At that time, only 100 local governments and one state, Hawaii, had come out in opposition to the PATRIOT Act. Since then many others have followed suit and numerous civil rights groups have led the opposition to the Act’s civil liberties threats. It will require continuing and forceful demands by citizens for our government to restore these lost liberties. The Congress and the president have yet to get the message.
Jim Cornehls is professor and director of the Law and Public Policy Graduate Certificate Program at the University of Texas at Arlington.
Reprinted from Zmagazine July 2006-under Fair Use guidelines