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Constitutional Rights Threatened
Implications of the USA PATRIOT Act
by Nancy Murray

December 2001/ January 2002
Volume 38, Number 10

Back in 1917 , as the US government was heading into the First World War, Rose Pastor Stokes wrote a letter to a St. Louis newspaper which stated: "I am for the people, and the government is for the profiteers." She was sentenced to ten years in prison for sedition.

During the same year Robert Goldstein of Los Angeles made a film about the American Revolution entitled "The Sprit of '76'. It depicted British soldiers committing massacres and shooting women. He was fined $5,000 and given ten years in prison on the grounds that the film "tended to question the good faith of our ally Great Britain and made us a little bit slack in our loyalty to Great Britain."

After the war ended things didn't get much better as far as civil liberties were concerned. The new fear was the threat of "Bolshevism." The young J.Edgar Hoover was asked by Attorney General A. Mitchell Palmer to draw up a list of radicals for the new FBI -- he soon had a card index of 200,000 names. The Attorney General then ordered raids on homes, meeting places, pool halls and bowling alleys in some 33 cities, resulting in more than 4,000 arrests. Over 200 immigrants (possibly as many as 1,000) were deported. Here in Massachusetts, our Secretary of State Albert P. Langtry stated about political radicals: "If I had my way, I would take them out in the yard every morning and shoot them, and the next day would have a trial to see whether they were guilty."

That was the mentality then -- is it so different now, some 80 years later, as we face a war with no clear enemy and no foreseeable end? Are we prepared to put the Bill of Rights in cold storage, and wait until terrorism everywhere is over before trying to thaw it out?

Unfortunately, that is where things are tending. In the weeks after September 11, intense lobbying efforts managed to stall Attorney General Ashcroft's draconian Anti-Terrorism legislation. But after compromise legislation was offered by the House Judiciary Committee, the USA PATRIOT Act (an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism") was rushed through Congress in late October before its 340 pages could be read or its implications properly understood. In the Senate only Russ Feingold of Wisconsin refused to vote for the bill. In the House, there were 66 brave souls who stood out against the pressure to support the legislation. This Act threatens undermine civil liberties on a scale far surpassing the 1940s and 50s "Red Scare."

The legislation defines terrorism in very broad terms, so broad that it could conceivably lead to a large-scale investigation of American citizens for engaging in civil disobedience. The new category of "domestic terrorism" means that demonstrators can morph into terrorists when they engage in conduct that "involves acts dangerous to human life." You can imagine where that leaves Vieques protestors, Greenpeace, and a host of other direct action organizations.

The Act is a minefield for non-citizens: both lawful permanent residents and shorter-term visitors to the country. Non citizens can be accused of terrorist activity if they have used "a weapon or other dangerous device...to cause substantial damage to property." That "weapon" might be something as non lethal as a placard that accidentally broke a window during a protest scuffle.

Non-citizens can be indefinitely detained if the Attorney General certifies that he has "reasonable grounds to believe" that they are a danger to national security, and some sort of charges are brought against them within seven days. The charges do not have to be related to terrorist activity. They could, for instance, be charged with overstaying their visas.

Once the charges are brought, they could be imprisoned indefinitely with a review by the Attorney General every six months. If after some sort of a hearing they are ordered to be deported, but their country of origin refuses to have them back, they could be detained for life. How many countries are going to want to take back people the US wants to deport as terrorists?

The law permits the Secretary of State to designate as "terrorist" an organization that has at some point in its existence engaged in violent activity. That organization does not have to be included on any special list for a non-citizen to be punished (possibly with deportation) for supporting some of its activities, however lawful they may have been at the time, or for simply paying its membership dues.

The Act gives government agents draconian new powers to spy on both citizens and non-citizens without meaningful judicial oversight, and to widely share that information. Although one portion of the Act says Americans cannot be investigated solely because of their First Amendment activities, another section permits investigations based on First Amendment grounds if that activity can be tied somehow to international terrorism or intelligence work.

If you have been a critic of US foreign policy, and investigating you is believed to be in the interests of "foreign intelligence" gathering, judges simply rubber stamp warrants that permit law enforcement agents to search your house and office and computer files without letting you know until later, to tap your phones, to see which Internet sites you visit, to intercept your email, to examine your mental health and financial records and so on. It also greatly expands the ability of the government to conduct surveillance and secret searches in criminal investigations, without even having to show evidence of a crime.

I don't mean to imply that we should do nothing at all to improve security in the aftermath of September 11. Clearly some things make a lot of sense -- like overhauling airport security. Like getting the FBI and CIA to shape up, to use the considerable powers they already have, to overcome their bureaucratic inertia and entrenched turf issues, and to stop dropping the ball.

The extent of the intelligence failure is laid bare by an article written by David Rose that appeared in the British newspaper The Observer, and was re-printed in the October 4-10 Guardian Weekly (UK). It states that for four years leading up to the September 11 attacks, the government of Sudan repeatedly offered security chiefs in the USA and UK "the chance to acquire a vast intelligence database on Osama bin Laden and more than 200 members of his al-Qaida terrorist network," including material about their financial interests and plans. They were also given "an opportunity to extradite or interview key Bin Laden operatives who had been arrested in Africa because they appeared to be planning terrorist atrocities." They refused all offers because the official US/UK policy was to keep Sudan at arms length. A senior CIA source told Rose: "This represents the worst single intelligence failure in this whole terrible business. It is the key to the whole thing right now. It is reasonable to say that had we had this data we may have had a better chance of preventing the attacks."

As for the FBI, revelations of what the agency has been doing in Boston should serve as a cautionary tale. It was recently revealed that FBI agents knowingly put two innocent men in prison for over 20 years and knowingly had two other innocent men incarcerated who died in prison. Two FBI informants face charges of murdering up to 19 people while being on the FBI payroll. In earlier decades the FBI brought us COINTELPRO -- the Counter Intelligence program aimed at disrupting anti-Vietnam War protests and the Civil Rights and Black Power Movements.

No, agencies like the CIA and the FBI do not need the enhanced power to spy on citizens. The Attorney General does not need the unprecedented authority to incarcerate indefinitely non-citizens. What they do need is an enhanced respect for the Bill of Rights. We must let the Bush Administration and our elected representatives know that we will not be frightened into giving up our hard-won constitutional rights!

Nancy Murray is the Director of the Bill of Rights Education Project at the ACLU of Massachusetts.

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