Patriot Act
by Nat Hentoff
The erosion of sections of the Bill of Rights quickened when the
president signed the USA PATRIOT Act on October 26, 2001. With
Attorney General John Ashcroft insisting on the crucial need for
speed, the House passed the 342-page document by a vote of
356 to 56, although few had the chance to read it. Several
members later said that parts of the new law seemed
unconstitutional, but in view of the coming elections, they did not
want to be attacked as unpatriotic by their opponents. In the
Senate, only one senator, Wisconsins Russ Feingold, voted
against the PATRIOT Act.
In the House, dissenter David Obey of Wisconsin said
bitterly, Why should we care? Its only the Constitution.
The Act has radically extended government electronic
surveillanceon and off the Internetwith often reduced judicial
review. For example, FBI agents can enter a home or office with a
court orderwhile the occupants are not thereand insert the
Magic Lantern (also known as the keystroke logger) into a
computer.
It records every stroke, including messages not ever sent
from the computer. On returning covertly, the agents can
download everything that has been recorded. Notice of their entry
can be delayed for 90 days or longer.
Under the PATRIOT Act, with a warrant from the secret
Foreign Intelligence Surveillance Court, the FBI is empowered to
go to libraries and bookstores to secure the lists of books
borrowed or bought by persons under only tenuous suspicion of
links to terrorism. A much lower standard than the Fourth
Amendments probable cause is permitted for these inquiries.
And with a gag rule unprecedented in American history, both the
librarian and the bookstore owner are prohibited from informing
anyone, including the press, that these searches have taken place.
Among the extraordinary unilateral incursions in the Bill of
Rights taken by John Ashcroft: Government agents can now listen
in on conversations between lawyers and their clients in federal
prisons without a prior court order.
And it goes on. The December 20, 2002, New York Times
reported, The Bush administration is planning to propose
requiring Internet service providers to help build a centralized
system to enable broad monitoring of the Internet and,
potentially, surveillance of its users through the Internet.
Brandon Koerner, a fellow at the New America Foundation,
has pointed out in The Village Voice that the bill that Congress
passed so hastilyand that is now part of the lawlowers the
legal standards necessary for the FBI to deploy its infamous
Carnivore surveillance system. Without showingas the Fourth
Amendment requiresprobable cause that a crime has been
committed or is about to be committed, the government invades
your privacy through Carnivore.
The fearful name Carnivore disturbed some folks, and so
it has been renamed DCS1000. Carnivore, Koerner notes, is a
computer that the Feds attach to an Internet service provider.
Once in place, it scans e-mail traffic for suspicious subjects
which, in the current climate, could be something as innocent as a
message with the word Allah in the header. Or maybe: SAVE THE FOURTH AMENDMENT FROM TYRANTS! Carnivore also
records other electronic communications.
Ashcrofts Detention Camps
And there is the PATRIOT Acts designation of two
American citizens, so far, as enemy combatants, held in military
brigs in this country, without charges and without access to
lawyers, and unable to appear personally in court hearings. They
are being held indefinitely for interrogation about their possible
knowledge of or links to terrorism.
In the case of Yaser Hamdi, taken into custody in
Afghanistan and now in a Virginia navy brig, Federal District Judge
Robert Doumar, a Reagan appointee, has asked the Justice
Department lawyer, So the Constitution doesnt apply to Mr.
Hamdi? This treatment of American citizens, Judge Doumar has
said, appears to be the first in American jurisprudence.
Jonathan Turley, a professor of constitutional and public-
interest law at George Washington University, wrote in a column in
the August 12, 2002, Los Angeles Times: Attorney General John
Ashcrofts announced desire for camps for U.S. citizens he deems
to be enemy combatants has moved him from merely being a
political embarrassment to being a constitutional menace.
Actually, ever since Ashcroft pushed the PATRIOT Act through a
supine Congress, he has subverted more elements of the Bill of
Rights than any attorney general in American history.
Turley reports that Justice Department aides to General
Ashcroft have indicated that a high-level committee will
recommend which citizens are to be stripped of their
constitutional rights and sent to Ashcrofts new camps.
Of
course Ashcroft is not considering camps on the order of the
internment camps used to incarcerate Japanese-American citizens
in World War II. But he can be credited only with thinking smaller;
we have learned from painful experience that unchecked
authority, once tasted, easily becomes insatiable.
Turley insists that the proposed camp plan should trigger
immediate congressional hearings and reconsideration of
Ashcrofts fitness for important office. Whereas al-Qaeda is a
threat to the lives of our citizens, Ashcroft has become a clear and
present threat to our liberties. There has, as yet, been no
congressional call for such hearings.
On August 8, 2002, the Wall Street Journal, which much
admires Ashcroft on its editorial pages, reported that the Goose
Creek, South Carolina, facility that houses [Jose] Padillamostly
empty since it was designated in January to hold foreigners
captured in the U.S. and facing military tribunalsnow has a
special wing that could be used to jail about twenty U.S. citizens if
the government were to deem them enemy combatants, a senior
administration official said. The Justice Department has told
Turley that it has not denied this story. And space can be found in
military installations for more enemy combatants.
But once the camps are operating, can Ashcroft be
restrained from detainingnot in these special camps, but in
regular lockupsany American investigated under suspicion of
domestic terrorism under the new, elastic FBI guidelines for
criminal investigations? From page three of these Ashcroft
terrorism FBI guidelines, its worth noting again that The nature
of the conduct engaged in by a [terrorist] enterprise will justify an
inference that the standard [for opening a criminal justice
investigation] is satisfied, even if there are no known statements
by participants that advocate or indicate planning for violence or
other prohibited acts. That conduct can be simply intimidating the government, according to the PATRIOT Act.
Vanishing Liberties
On March 18, 2003, The Associated Press reported that at
John Carroll University, in a Cleveland suburb, Justice Antonin
Scalia said, Most of the rights you enjoy go way beyond what the
Constitution requires because the Constitution just sets
minimums. Accordingly, in wartime, Scalia emphasized, the
protections will be ratcheted down to the constitutional
minimum.
Most of the radical revisions of the Constitution that I and
others have been writing about will ultimately be ruled on by the
Supreme Court. Scalia indicates he will come down on the side of
Bush and Ashcroft. A few days after the terrorist attacks on the
World Trade Center and the Pentagon, Justice Sandra Day
OConnor said that as a result, we are likely to experience more
restrictions on our personal freedom than has ever been the case
in our country.
In his book All the Laws But One: Civil Liberties in Wartime
(Alfred A. Knopf, 1998), William Rehnquist, the chief justice of the
United States, who will be presiding over the constitutionality of
the Bush-Ashcroft assaults on the Constitution, wrote, In time of
war, presidents may act in ways that push their legal authority to
its outer limits, if not beyond.
Reacting to Rehnquists deference to the executive branch
in previous wars, Adam Cohen, legal affairs writer for the New
York Times, wrote: The people whose liberties are taken away are
virtually invisible in the pages of Rehnquists book.
Meanwhile, in an invaluable new report by the Lawyers
Committee for Human Rights, Imbalance of Powers: How Changes
to U.S. Law and Policy Since 9/11 Erode Human Rights and Civil
Liberties (March 2003), a section begins: A mantle of secrecy
continues to envelop the executive branch, largely with the
acquiescence of Congress and the courts. [This] makes effective
oversight impossible, upsetting the constitutional system of
checks and balances.
So where is the oversight going to come from? If at all, first
from the people pressuring Congressprovided enough of us
know what is happening to our rights and liberties. And that
requires, as James Madison said, a vigorous press, because the
press has been the beneficent source to which the United States
owes much of the light which conducted [us] to the ranks of a free
and independent nation.
But the media, with few exceptions, are failing to report
consistently, and in depth, precisely how Bush and Ashcroft are
undermining our fundamental individual liberties.
For example, the Justice Department had kept secret from
Congress the Domestic Security Enhancement Act, the proposed
sequel to the PATRIOT Act. A week before an anonymous member
of Ashcrofts staff leaked PATRIOT Act II, a representative of the
Justice Department even lied to the Senate Judiciary Committee
about its very existence.
A few sections in that chilling draft were briefly covered in
some of the media. But these invasions of the Constitution were
only a one or two-day story in nearly all of the media.
How many Americans know that if the bill is passed (and
Bush certainly wont veto it), they can be stripped of their
citizenship if charged with giving material support to a group
designated by the government as terrorist? Sending a check for
the outfits lawful activitieswithout knowing why it landed on
Ashcrofts listcould make you a person without a country and
put you behind bars here indefinitely.
Justice Denied at its Source
Three days before the first anniversary of September 11,
the Daily Journal Gazette of Fort Wayne, Indiana, published an
indictment of Ashcroft and the Bush administration in an editorial,
Attacks on Liberty. It was the papers first full-page editorial in nearly 20 years. The Journal Gazette charged:
In the name of national security, President Bush, Attorney General
John Ashcroft, and even Congress have pulled strand after strand
out of the constitutional fabric that distinguishes the United
States from other nations.
Actions taken over the past year are eerily reminiscent of
tyranny portrayed in the most nightmarish works of fiction. The
power to demand reading lists from libraries could have been
drawn from the pages of Ray Bradburys Fahrenheit 451.
The
sudden suspension of due process for immigrants rounded up
into jails is familiar to readers of Sinclair Lewis It Cant Happen
Here.
Among the quotations from distinguished Americans in the
editorial was one of my favoritesLouis Brandeis The greatest
dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding.
The changes in the air are not only far from slight, but they
are ominous in view of what another current Supreme Court
justice, Anthony Kennedy, has warned: The Constitution needs
renewal and understanding each generation, or else its not going
to last.
But the Constitution cannot be continually renewed unless
enough Americans understand its crucial guarantees of personal
liberties against an executive branch that eagerly and righteously
keeps assuming powers that the Constitution mandates be shared
with Congress and the judiciary.
During a radio interview in Alaska, on February 11, 2003,
Rep. Don Young, a plainspoken conservative Republican, said to a
caller from Hooper Bay, Alaska, The events of September 11, as
horrendous and horrible as they were, have had an even more
horrendous effectin my opinion and I think in the opinion of a
lot of Americanson our rights, through such of the legislation
that has been passed as the PATRIOT Act. The worst act we ever
passed.
Did you vote for it? the caller asked.
Everybody voted for it, Don Young said, but it was
stupid. It was what you call emotional voting. We didnt follow it through, we didnt study it. I think youre going to seewhat I call improvements, changes.
I say this very strongly. American
citizens have constitutional rights, and we have to follow them.
On the National Day of Prayer, May 1, 2003, Attorney
General John Ashcroft declared in Washington: It is faith and
prayer that are the sources of this nations strength.
In view of Ashcrofts systematic invasions of our liberties, it
is understandable that he missed the quintessential source of this
nations strengththe Bill of Rightsas Don Young of Alaska and
increasing millions of Americans know, and are insistent on
protecting.
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