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Bipartisan anti-terrorism law snuffs out basic freedoms
Compiled by the American Civil Liberties Union, Eastern Missouri
On October 26, 2001, the US Congress passed, and President George W. Bush signed into law, the USA PATRIOT Act, an acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.”
The US Senate voted for the bill, 98-1, with both Missouri senators, Kit Bond (R) and Jean Carnahan (D), voting in favor. Only Sen. Russ Feingold (D-WI) opposed it. The House of Representatives voted 357-66 to pass it. Eight of Missouri’s nine House members voted for the Act, including Minority Leader Richard Gephardt (D) and Rep. Todd Akin (R), with Rep. William “Lacy” Clay (D) not voting.
The Act cuts back on Constitutional checks and balances and Bill of Rights protections…
This lengthy, far-ranging Act contains “the sense of the Congress that…the civil rights and civil liberties of all Americans, including Arab Americans, Muslim Americans and Americans from South Asia, must be protected, and that every effort must be taken to preserve their safety.” Why then have so many concerns been expressed about its cumulative impact on the civil liberties of both Americans and non-citizens?
Impact on checks and balances
The Act cuts back on Constitutional checks and balances and Bill of Rights protections:
- It gives sweeping new powers of detention and surveillance to the Executive Branch of government and law enforcement agencies, and deprives the Courts of meaningful judicial oversight to ensure that the law enforcement powers are not being abused.
- It gives the Secretary of State the authority to designate any group, foreign or domestic, as a terrorist organization, an authority that is not subject to review.
- It creates a broad new crime of “domestic terrorism,” which is defined in Section 802 as “activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the US or of any state; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.”
- It permits investigations based on lawful First Amendment activity if that activity can be tied somehow to intelligence purposes.
- It undermines the privacy protections of the Fourth Amendment by eroding the line between intelligence gathering and gathering evidence for a criminal proceeding, and expands the ability of the government to spy through wiretaps, computer surveillance, access to medical, financial, business and educational records and secret searches of homes and offices.
- It undermines fair due process procedures guaranteed by the Fifth, Sixth and Fourteenth Amendments which over a century of US Supreme Court rulings have extended to non-citizens, by permitting the government to detain non-citizens indefinitely, even if they have never been convicted of a crime.
The Act also eliminates much of the judicial oversight established in the 1970s after revelations that the US and the F.B.I. were spying on over half a million Americans during and after the McCarthy era, and opens the door widely to new possibilities of abuse.
What the Act means for everyone
Law enforcement officials are no longer tied by the rules of criminal law before conducting searches in criminal cases. People can be subjected to roving wiretaps or have their homes and offices secretly searched in criminal investigations without a demonstration of “probably cause” of a crime. Surveillance can follow a targeted individual to any computer or telephone he or she might use based on a single warrant that can be used anywhere in the US.
Law enforcement officials are no longer tied by the rules of criminal law before conducting searches…
Internet communications of Americans can be spied on if law enforcement agents tell a judge that this surveillance is merely “relevant” to an ongoing criminal investigation. Computers and phones can be monitored by the C.I.A. and F.B.I. without their having to demonstrate use by a suspect or a target of a court order. If the F.B.I. certifies to a court that it needs this information to conduct an “intelligence” investigation, it can obtain access to sensitive educational, medical, financial, mental health and other personal records.
Information collected in formerly secret grand jury hearings or through wiretaps in a criminal case can be disclosed to intelligence agencies if that information is seen as “foreign intelligence information,” including any information that “relates” to the national defense or security or the conduct of foreign affairs. The Act provides for broad sharing of information among the F.B.I., C.I.A., I.N.S., Secret Service and National Security Agency.
Americans engaged in civil disobedience or another form of protest activity are susceptible to being charged with “domestic terrorism” if violence erupts.
The Act expands the range of computer crimes defined as “terrorist offenses” and the penalties attached to them.
The Attorney General may submit a written application to a court for an order requiring an educational institution to give access to records of both foreign and American students that had been protected by the Family Educational Rights and Privacy Act (FERPA), and to student data collected under the National Education Statistics Act. The court can issue the order based on mere certification that the records are needed for an ongoing investigation.
Extra problems for non-citizens
The Act allows non-citizens to be arrested and held until deported if they are members of, have raised funds for or provided some kind of material support to an organization designated as terrorist by the Secretary of State, or for an organization which is not on the list of terrorist groups but which at some point had engaged in some sort of violent activity which could have made it eligible for inclusion on the list. A limited appeals process gives an arrested person the opportunity to demonstrate that “he did not know, and should not reasonably have known, that the solicitation [of funds] would further the organization’s terrorist activity.”
Non-citizens who have never been convicted of a crime can continue to be detained if the Attorney General “certifies” that he has “reasonable grounds to believe” that their release will endanger “national security of the United States or the safety of the community or any person.” After being charged with either an immigration or criminal offense within seven days, they can be held indefinitely, with the Attorney General reviewing their certification every six months. The Act allows their attorneys to initiate habeas corpus proceedings with federal courts.
Non-citizens who have never been convicted of a crime can continue to be detained…
A non-citizen who is ordered deported but whom no other country will accept may be imprisoned in the US for life. The Act allows the US to deny entry to individuals believed to be members of foreign terrorist organizations or of any group that publicly endorses terrorist acts, as well as their spouses and children.
Duration of powers
Some of the expanded surveillance powers “sunset” after four years and will expire on December 31, 2005 unless reauthorized by Congress. However, because the Act provides for only very limited reporting requirements, it is difficult to see how Congress can evaluated whether the provisions should be renewed.
Many of the new powers are not subject to any “sunset” provisions at all. These include the sharing of grand jury and other information among law enforcement agencies, the scope of subpoenas for records of electronic communication, the issuing of single jurisdiction search warrants and permitting “sneak and peak” secret searches.
[This account is taken from “The USA PATRIOT ACT: A Civil liberties Briefing,” which was distributed to Missouri Green Party members at the January 6, 2002 meeting in Columbia, MO, as part of the presentation of Matt LeMieux, Executive Director of the ACLU of Eastern Missouri. Reprinted with permission.]
See Why Unions Should Work to Repeal the USA PATRIOT Act by George Caffentzis (Green Politix)