News & Politics > Special Report

Are Our Civil Liberties Imperiled?
By Michael H. Sussman

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.

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 before President Bush signed it into law on October 26, 2001.

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.

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 unconstitutional 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 present a signed search warrant to the owner. Patriot Act I 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.

2. Computer surveillance is permitted upon the consent of the "owner" with no warning to others communicating with the owner. A 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 she or he need not be the target of the criminal investigation. Nor is the government obliged to report to the 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 e-mail 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 claimed that it was doing so to gather intelligence, not build a criminal case. Now, evidence so generated may be introduced in criminal trials in our own country so long as the government can show that intelligence gathering was a "significant purpose" of the activity, even where the government had another significant purpose—criminal prosecution.
4. The attorney general now has authority to compel the production of any business record in connection with any investigation of terrorism or espionage.

5. The attorney general may hold an immigrant indefinitely so long as, within seven days of apprehension, she or 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, she or he can still be detained if the attorney general certifies every six months that his or her release would endanger national security. In November 2001, seven Democratic senators filed foia requests seeking specific information on more than 1,000 people 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.

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 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 the 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, and 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 created 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.
The Bush administration has recently supported extending Patriot Act I beyond the December 2005 sunset date for provisions which allowed more liberal surveillance. While arguing for the extension of these provisions, the administration has refused to disclose any factual information on how it has implemented the Patriot Act.

In early 2003 the Justice Department’s Office of Legal Affairs circulated 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 that 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 her or his citizenship if she or 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 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."

Plainly, the current administration wishes to substantially alter our longstanding freedoms of association and speech and provide law enforcement far less bridled authority to gather information about our daily lives. Whether this trend continues will depend on the reaction of an informed citizenry and the balances it supports, as well as the weight this set of issues has to voting Americans.

Michael Sussman is a civil rights attorney in Orange County. He actively protests against the Patriot Act and the policies of the Bush Administration, has demonstrated against the war in Iraq, and helped form the Democratic Alliance to define and represent the progressive wing of the Democratic Party in Orange County.

SIDEBAR:
Standing Up for Civil Liberties

Since Patriot Act I was passed, approximately 89 cities and counties have passed resolutions condemning it. In March and April of this year, Hawaii became the first state to pass such resolutions, both in its House of Representatives and Senate. HR21 and SR8/SCR18 reaffirm “the legislature’s commitment to human rights, civil liberties, and all protections guaranteed by the Constitutions of the United States and the state of Hawaii, and other international charters and covenants.”

Acknowledging Hawaii’s “unique position to understand the gravity and horror of a massive attack, as the December 7, 1941 attack on Pearl Harbor was the last time American territory was attacked by foreign forces prior to” 9/11, the resolutions point to historical distinctions suffered by Hawaii—“the residents of Hawaii during WWII experienced firsthand the dangers of unbalanced pursuit of security without appropriate checks and balances for the protection of basic liberties.”

They go on to express that “the citizens of Hawaii are concerned that the actions of the attorney general of the United States and the United States Justice Department pose significant threats to constitutional protections” and urge “the state of Hawaii congressional delegation to work to repeal any sections of the usa patriot act or recent executive orders that limit or violate fundamental rights and liberties protected by the Constitutions of Hawaii and the us.”

In addition, the resolutions state that “no state resources—including law enforcement and educational administrative resources—may be used for unconstitutional activities” included in the Patriot Act, such as “monitoring of political and religious gatherings; obtaining library records, bookstore records, and Web site activities without proper authorization/notification; issuing subpoenas through the us Attorney’s Office without a court’s approval; requesting nonconsensual releases of student and faculty records from public schools and institutions of higher learning; and eavesdropping on confidential communications between lawyers and their clients.”

Another resolution not yet adopted, HR25 attacks the very name of the Patriot Act. It states, this act, “‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act,’ was so entitled so that its proponents could refer to it by the acronym "usa patriot Act," a move designed to quash criticism of its contents by impugning the patriotism of anyone who would dare to criticize it.”

Yet fear of being labeled unpatriotic for not following in lockstep with the Bush administration has not stopped innovative ways of combating the act.

Across the us, libraries, long an American institution that has set an example in the fight for protection of freedom of speech, are taking action. Some have printed and distributed bookmarks warning borrowers about the law that allows federal investigators to demand the names of patrons and lists of books they have borrowed. In Seattle, one library displays a large sign explaining that unless patrons owe late fees, they don’t keep records of books taken out. At a recent talk given in New Paltz by civil rights attorney Michael Sussman, a member of the audience spoke about how some libraries have begun to post signs saying, “The fbi has not visited this library,” as a way to alert patrons as to the status of snooping by the federal government.

One major concern of librarians, according to suny New Paltz librarian Corrine Nyquist, is the gag order which states that a library, bookseller, or publisher cannot reveal or alert individuals, the general public, the press, local organizations, national watchdog groups, etc. to the fact the library have been requested to give out records of patrons. The gag order prohibits questioning the validity of requests for records.
“The gag order actually prevents us from raising the question or stating that someone has come in and requested information,” says Nyquist. “We would be subjected to arrest ourselves if we alerted anyone that a warrant or subpoena had been issued.”

Of equal concern is the lack of protection usually provided by the American Library Association (ala). “Right now the ala tells us that we are to comply with a subpoena or a warrant, if the proper papers are filed. And of course, the problem with the Patriot Act is that no longer does it require evidence of some criminal activity—it only needs to have evidence, or the suggestion of involvement with terrorism, which broadens the ability to get a subpoena or a warrant,” Nyquist explains.

“In the past, whenever there was a threat to libraries, we could turn to the ala, talk to their lawyers, raise concerns as we did some ten years ago when suny libraries were approached by the fbi—which led to a law being passed in New York that library records were private. And of course, that’s superseded by the Patriot Act.”

Education, says Nyquist, is the tool being utilized right now to protect against the constitutional infringements of the Patriot Act. “We had a teleconference in December. Right now, I am taking a tutorial through the ala over the Internet to learn more about all of the provisions. And then of course, the major thing the libraries are doing is working with software so that records are destroyed as quickly or as soon as they are not needed.”

—Lorna Tychostup