As millions have rallied around our flag crusading to bring “human rights” to Iraq, President Bush and Attorney General John Ashcroft have continued a profound assault on constitutionally-guaranteed civil liberties.
This has not happened in a vacuum and tonight, I want to both discuss the broader context for the Patriot Act, some of its critical provisions and the future of civil liberties in America.
By emerging accounts, President Bush decided to invade Iraq in the winter of 2002, more than one year before the act. Out of deference to Colin Powell, who strongly opposed the use of pre-emptive force, the President sought to build international support for his war. In that process, in my judgment, the President significantly isolated the United States, alienated many historic allies and, for my purposes tonight, distorted the truth. And, it is the proclivity to such distortion which links the war in Iraq with the current erosion of civil liberties.
Simply stated, George Bush has an actor’s flair for the over-dramatic and a belief that as President, he may take poetic license with the truth. As you will recall, the poet proceeds from a kernel of truth and then builds a fictitious castle, at all times concealing from the reader the distinction between fact and fancy.
– I –
American democracy was built upon several relevant precepts:
First, we needed a bill of rights to curb the tendency of government to consolidate power and behave tyrannically.
Second, we needed an independent judiciary - particularly at the federal level - to insure that those in government did not arrogate to themselves unchecked powers and use the same selectivity or on behalf of one or another interest group which happened to have hegemony in a given area at a given time.
Third, the people needed to have guaranteed to right to criticize their government and be taken seriously in that process, as well as the rights to freedom of speech, private and collective religious observance, without government interference, and, more broadly, the right of association. Recall - these natural rights are the peoples - inherently, the Peoples’ - not granted the people by the government. And, our institutions are intended, indeed erected, to insure that the people retain these rights.
Our Bill of Rights is about the definition of boundaries - boundaries between the federal government and the states and, more critically, the boundaries between government and individuals. Our founders struck that balance IN FAVOR of individual rights. Thus, the First Amendment protects the right of individuals not merely to speak out about matters of public concern, but to associate with others to bring about changes in their government or its policies.
One freedom is very much linked to another: The freedom to speak out would be devalued absent the freedom to associate without fear of retaliations. Much recent First Amendment litigation has clarified that the right to free speech means more precisely the right to free speech about matters of public concern without the fear of government retribution. Thus, if a middle manager at the transit authority is fired for blowing the whistle on managerial corruption, our courts understand this to be a violation of his right to free speech, not because his speech was blocked in the first instance, but because his speech act yielded retribution by those offended by it - the targets of his speech.
The Fourth Amendment protects Americans from unreasonable searches and seizures and extensive jurisprudence can be summarized in this manner: We rely on judicial officers, not “interested” police agencies to determine when the state may shatter the privacy of one’s home or office or any other place where you have a legitimate expectation of privacy. The police are required to obtain and abide by the limits of a search warrant, another signal that the Constitution sought to respect individual property and privacy - within limits. To obtain a search warrant, the police officer must show the judiciary probable cause that an offense has occurred and that the search shall yield relevant evidence.
Likewise, the Sixth Amendment guarantees the right to a fair, public and speedy trial to a criminal defendant. Our constitution did not condone secret judicial proceedings, nor the practice of holding an accused for long periods without access to counsel or the possibility of bail. Indeed, again fearing the power of the state, our Constitution insured that the prosecution drew and presented charges promptly and then proceeded to an adversarial trial - and, critically, the accused is presumed innocent, not guilty, until the government proves its case beyond a reasonable doubt. These standards are not academic or arbitrary - they state, in words, our skepticism with the potential abuses of state power, including the prosecutorial power, and offer protections to individuals. Choices could have otherwise set the boundaries between the state and the individual.
Finally, the Fourteenth Amendment insures our citizens due process of law, respect by government for life, liberty and property, and imposes an assurance that the same shall not be taken without adherence to the guarantees referenced above.
As we shall now see, in critical regards, the misnamed “Patriot Act” works significant changes in the carefully crafted and historic balance between the state and individuals. I pause for one additional digression: The naming of the Patriot Act cannot be deemed coincidental - in my judgment, this administration has repeatedly glossed its pernicious intentions with polar language - that is with words which connote the OPPOSITE intention, thereby fooling many as to its intent. Starting with the phrase ‘compassionate conservative”, the President’s brilliant handlers have set out to fool Americans. Their choice of language is both revealing and a source of hope - they believe most Americans are compassionate, they believe most Americans want to stand up for democracy, “liberate” Iraq, extend equality to women, end oppression and abide by the rule of law. I believe they are right.
- II -
Introduced on September 19, 2001, “Patriot Act I,” less well known by its actual title, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” passed the United States Senate in late October with one opposing vote. President Bush signed it into law on October 26, 2001, more than a month behind the deadline set by the Attorney General.
The bill is some 342 pages long and amends 15 prior federal statutes. While ballyhooed as a response to 9/11, the Patriot Act was being drafted before that tragic event and introduced within eight days of it. Patriot Act I liberalizes law enforcement’s use of numerous surveillance techniques, allowing their initiation either without prior judicial review or under much less rigorous standards of judicial oversight, as supervised by a “secret [as opposed to an Article III court.”
Russell Feingold, then Chair of the Constitution Subcommittee of the Senate Judiciary Committee, was the only Senator to oppose Patriot Act I. In an analysis of the legislation, presented the day after it passed the Senate, Mr. Feingold noted several provisions which the administration had proposed, but which the Senate rebuked. He argued that these provisions, which had been advocated by Attorney General Ashcroft before September 11, 2001, well illustrated the administration’s policy goals:
1. Allowing as evidence in trials statements made overseas and obtained through unauthorized and therefore illegal wiretaps;
2. Pre-conviction freezing of assets unrelated to the charged crime, effectively depriving the accused of his/her choice of counsel;
3. Permitting the Justice Department to obtain anyone’s educational records without judicial approval.
While these provisions did not make the final cut, others which changed the balance between constitutional guarantees and the rights of law enforcement did.
These include the following:
1. Elimination of the requirement that, before searching a residence, police authorities must present a signed search warrant to the owner. The Patriot Act replaces this with an out - if police agencies believe that they have “reasonable cause to believe” that such prior notice “may” seriously jeopardize an investigation, they can search without presenting a search warrant. Last week, the Attorney General averred that on at least 200 occasions, law enforcement has used this authority.
2. Computer surveillance is permitted upon the consent of the “owner” with no warning to those communicating with the owner. A secret court judge may also authorize the government to spy on anyone’s web surfing as long as the Justice Department claims that this is relevant to an ongoing investigation. No notice need be provided the target of the spying and s/he need not be the target of the criminal investigation. Nor is the government obliged to report to the secret court [as in a search warrant situation] the results, if any, of its cyber-tap. The act also allows the government to obtain [without judicial sanction] information on a person’s e-mail routing, addresses, signaling information and methods of payment for e-mail access. As the Center for Constitution Rights has noted, “Prior laws governing
Electronic communication provided for a lower standard than probable cause to put a trace on telephone calls, allowing investigators to determine who a suspect is calling, but not to monitor the conversations themselves. Under the Act, the same standard is applied to email communications - investigators are allowed to access “dialing, routing and signaling information” without a showing of probable cause.”
3. The Foreign Intelligence and Surveillance Act [FISA], enacted in 1978, allowed the federal government to conduct overseas surveillance of American citizens for the purpose of intelligence gathering, without satisfying the Fourth Amendment standard of probable cause. The FBI could wiretap without judicial imprimatur as long as it said it was doing so to gather intelligence, not build a criminal case. Now, evidence generated in such intelligence gathering operations may be introduced in criminal trials in our own country if the government can show that intelligence gathering was a “significant purpose” of the activity, even where the government had another significant purpose - criminal prosecution. Thus, the line FISA attempted to secure - between general intelligence gathering and more particularized criminal investigations has been more than blurred. Last week, the Attorney General revealed that his agents are reviewing 4,500 such intelligence files for potential criminal wrongdoing.
4. The Attorney General now has authority to compel the production of any business record in connection with any investigation of terrorism or espionage. This includes library records, despite longstanding state law, as in New York, guaranteeing to library patrons the privacy of their library records.
5. The Attorney General may hold an immigrant indefinitely so long as, within seven days of apprehension, s/he is charged with a violation of immigration or criminal law. During the initial seven days, the Attorney General is NOT required to provide a detainee with any information justifying his detention. Thereafter, as Robert Levy, Senior Fellow in Constitutional Law at the Cato Institute, explains, “...the final bill allows expanded detention simply by charging the detainee with a technical immigration violation.” And, if a suspect is not then deported because, as is common, of delays in INS processing, s/he can still be detained if the AG certifies every six months that his/her release would endanger national security. In November 2001, seven Democratic senators filed FOIA requests seeking specific information on more than 1000 person detained since 9/11, some in solitary confinement and many without the ability to communicate with counsel or their families. The Department of Justice strenuously resisted this request, invoking the doctrine of national security.
6. The Attorney General may detain and deport permanent resident aliens who, he claims, provided lawful assistance to designated terrorist organizations. In so acting, the Attorney General need not show that at the time of the lawful contribution, the organization had been so designated or that the donor knew or recklessly disregarded substantial evidence that the organization was so proceeding.
7. Likewise, the Attorney General need not re-admit to our country a lawful permanent resident [green card holder] who travels abroad and makes a speech or engages in other NON-CRIMINAL ACTIVITY our government deems supportive of terrorism.
8. In a provision long sought by conservatives and much broader than many other provisions of the Patriot Act, the government is authorized to collect and store DNA of any person convicted of a crime of violence.
9. Librarians, booksellers and video store proprietors must turn over patron records to federal investigations upon demand.
10. The Attorney General may procure a search warrant in one federal district court and then use that warrant nationwide; this deviates from Federal Rule of Criminal Procedure 41 which had required jurisdiction by jurisdiction search warrants. This provision makes it easier for the Justice Department to judge shop and gain broad authority from sympathetic jurists.
11. The Attorney General may divulge grand jury minutes to intelligence services where “matters involve foreign intelligence or counterintelligence”.
12. The Patriot Act creates a new crime, “domestic terrorism”, defined as “acts dangerous to human life that are a violation of criminal laws” that “appear to be intended to influence the policy of a government by intimidation or coercion”. According to the Center for Constitutional Rights, “[T]his definition is so vague that acts of civil disobedience may be construed to violate the law. Civil disobedience typically seeks to influence government policy, and, therefore, may be construed as an attempt to coerce that change.”
Since its passage, the President and Attorney General have used the Patriot Act and Executive Orders defining “Enemy Combatants” to hold without charges or trial two American citizens. These individuals have been disallowed contact with attorneys or family members and the government has resisted court orders extending basic constitutional protection to them.
– III –
In early 2003, before releasing any information on its use of the new powers provided by Patriot Act I, the Justice Department’s Office of Legal Affairs circulated what has come to known as Patriot Act II. If enacted, these provisions would further alter the balance between the civil liberties of American citizens and the authority of the Attorney General and those in law enforcement.
First, the proposed legislation would override an August 2002 court order which required the Bush Administration to identify those it had imprisoned secretly since 9/11. Specifically, the draft legislation states that “the government need not disclose information about individuals detained in investigations of terrorism until ... the initiation of criminal charges,” an event for which no date has been set. If enacted, this would be the first time in American history when Congress approved secret arrests and directed the judiciary to desist from providing injunctive relief to those so held.
Second, as drafted, the “Domestic Security Enhancement Act of 2003” would allow the Attorney General to strip an American of his/her citizenship if s/he “becomes a member of, or provides material support to, a group that the United States has designated as a terrorist organization, if that group is engaged in hostilities against the United States.” Altering the longstanding principle that citizenship may only be abandoned by the declaration of its bearer, this proposal would allow the inference of that intent from “conduct” and not require any volitional declaration. Nat Hentoff, the Village Voice columnist, wrote of this provision, “What this section actually means is that if you provide “material support” to an organization by sending a check for its legal activities - not knowing that it has been designated a “terrorist” group for other things it does - you can be stripped of your citizenship and be detained indefinitely as an alien.” [February 28, 2003, “Ashcroft Out of Control,” Village Voice].
Third, the draft proposes expanding the DNA data bank from those convicted of any crime of violence to anyone deemed a “suspected” terrorist. A Terrorist Information Database would then be created, including “suspected terrorists” - read, persons never convicted of any violent offense.
Fourth, the draft would permit federal agencies to access consumer credit information without a judicial warrant merely by certifying the need for this information “in connection with their duties to enforce federal law.” The draft does not require that the federal government provide any notice to persons whose credit history is so accessed.
Fifth, PAII would allow spying on suspected domestic terrorists - American citizens - using the same [diluted] standard as the Foreign Intelligence Surveillance Act now permits in authorizing surveillance of foreign nationals. Sixth, the Act erects obstacles to suits against law enforcement agents who violate constitutional rights in conducting surveillance, insulating them from suit if they acted “pursuant to a lawful authorization from the President or the Attorney General.”
– IV –
Many Americans have reacted to the Patriot Act. At last count some 112 villages, towns and cities have passed resolutions condemning the Act’s imposition on civil liberties. Last week, the State of Alaska joined the State of Hawaii in condemning the act. The legislation passed in Alaska advised police and other state agencies not to “initiate, participate in, or assist or cooperate with an inquiry, investigation, surveillance or detention” if there is not “reasonable suspicion of criminal activity under Alaska State law.” Significantly, this resolution passed in the State House by a vote of 32 - 1, though Republicans outnumber Democrats therein 27 to 10. It passed unanimously in the Republican-dominated Senate.
We, too, can demonstrate our desire to have the most severe and threatening provisions of the Patriot Act repealed. Our representative, and we share one, Sue Kelly has supported the Act. Three weeks ago, on behalf of the Democratic Alliance, I requested a meeting with her to discuss the Act. Last week, her staff called me and told me they were trying to “fit me in.” We still wait. I suggest that we engage in some direct action - arriving at her offices to make clear that we cannot await longer as the rights of American citizens and aliens, living in our midst and contributing to our society, are trampled.
Finally, how seriously we take our rights will be tested during the next 18 months - if we do not make this a central issue in our country’s political life, those seeking to erode our liberties will be further emboldened. So, the time to act is now. |
