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Reasons
to Repeal the PATRIOT Act
Dr. Robert Abele
09/14/04
"ICH" -- October 26, 2001 was a dark day for
American democracy. That
was the day the Congress passed the USA PATRIOT Act (the House
vote was 356-66; the Senate vote was 98-1, the lone dissenting
vote cast by Senator Feingold from Wisconsin, who was one of the
very few to have read the Act before voting on it).
The title itself is an amazing display of pandering to
the emotions of the nation at that time: it is a twisted acronym
for “Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism.” What
is more important is that the legislation contained in this Act
could not even get approved by committees prior to 9/11/01.
Never a group known for not taking advantage of a
political opportunity, the Bush administration and the Justice
Department pieced this legislation together and shoved it
through Congress even as the clouds of smoke from the rubble of
the World Trade Center collapse hung over New York, and a pall
of grief hung over Americans.
The clouds darkened two days later when Mr. Bush signed
the Act into law. Lest we follow the same mistake as our alleged leaders in
Congress, we would do well to know some of the specifics about
the PATRIOT Act as we challenge our leaders to repeal it.
Listed below are some of the issues that make the PATRIOT
Act so controversial and divisive among people, juxtaposed with
the relevant parallel from the Bill of Rights as found in our
Constitution.
The
First Amendment right to free speech.
The First
Amendment states, in part, that “Congress shall make no
law…prohibiting freedom of speech…or the right of the people
to peacefully assemble.”
The Supreme Court rulings have regularly and historically
given wide range to an individual’s free speech, rightfully
seeing it as essential to a democracy.
How does PATRIOT measure up to this very important right?
Section 411
presents a new definition of “terrorism” (“acts dangerous
to human life that…appear to be intended…to influence the
policy of government by intimidation or coercion”), plus a new
definition of “engaging in terrorist activity” (i.e.
“soliciting funds or other things of value…for any group”
that the Attorney General holds “undermines U.S. efforts to
reduce or eliminate terrorist activities”).
In so doing, it allows prosecution through “Guilt By
Association,” in direct confrontation with the First
Amendment. The
Supreme Court has ruled that “Guilt by association is alien to
the traditions of a free society and to the First Amendment
itself.”
Sections 215 and
505 of the Act issue gag orders on persons visited by FBI
investigators. This
includes librarians, doctors, bookstore managers, banking
persons, etc.
Section 411 allows detention and deportation of any
immigrant who even verbally supports a terrorist organization.
Section 802 defines “domestic terrorism” very vaguely
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.” This very vague definition allows the government a far wider
range of discretion regarding who to wiretap and collect
information on, and who to arrest, than any federal law
heretofore.
The
Fourth Amendment requirement of probable cause.
The Amendment states: “The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” The main issue with PATRIOT regarding the Fourth Amendment is
probable cause, which means that the government must have
“reasonable grounds” for conducting searches and
surveillances on U.S. persons.
The PATRIOT Act raises concerns about probable cause in
the following ways.
Numerous federal
laws created under this Amendment require the government to
produce evidence for eavesdropping and search and seizure.
In PATRIOT this standard is very much watered down in
nearly every section of the Act into allowing the government to
engage in such actions only on the basis of “suspicion” of a
target of investigation. This
collides squarely with the Fourth Amendment requirement for
probable cause. If
a person did extensive writing opposed to governmental actions,
for example, that would allow that person to be a target of
government spying.
Section 214 of PATRIOT allows the government to bypass
the usual requirement of a warrant for the use of trap and trace
devices, simply by asserting that their need to spy on a U.S.
citizen is “relevant to an ongoing terrorist investigation.”
(Trap and trace devices record the numbers of both
incoming and outgoing phone calls from whatever phones are
tapped.) Note the
slippery words “relevant to” and “ongoing.”
Such words allow the government
great leeway in their actions.
What does “relevant to” a terrorist investigation
mean? Only the
Attorney General is permitted to answer that, and he may do so
at his own whim.
Section 215 states that the FBI does not need to suspect
the person of wrongdoing in order to seize evidence from them.
In addition, delayed notification of warrant to the
person searched is permitted.
This section also repeals restrictions on governmental
seizure of information, placing no limit on which “tangible
thing” may be gathered up by government agents.
Thus, an individual’s medical records, banking records,
educational records, book purchases, and library borrowings are
all specifically mentioned in PATRIOT as “tangible things”
the government is now permitted to look into for any “U.S.
person” (i.e. citizen). More
importantly, this provision is permanent.
Section 218 suspends probable cause altogether in favor
of wiretapping of persons for a “significant purpose”
involving criminal
(i.e. not limited to terrorist) investigations, OR “an ongoing
intelligence investigation.”
The latter, of course, need only mean that the government
wants information on a certain person.
Section 412 states that the government need not present
evidence before jailing immigrants.
Rather, all the Attorney General needs to do is to state
that he has “reasonable grounds” to believe that an
immigrant is a threat. This
applies to suspected,
not proved, terrorists.
The
Fourth Amendment right to privacy.
Since 1890, the right to privacy has been a right that
the U.S. Supreme Court has declared to be “self-evident” and
constitutionally implied in the Fourth Amendment to the U.S.
Constitution. The
issues regarding privacy raised in PATRIOT include the following
problems.
Section 203 allows
government agencies that do investigation on any
criminal matter to share that information
with other agencies.
Section 206 allows “roving wiretaps” for intelligence
gathering on persons. These
taps target a person and therefore any technological device that
such a person might use, in any location.
Thus, if the FBI is investigating someone who uses a
library computer, the FBI can monitor any person who also uses
that computer or other public electronic device, without that
person’s knowledge
or consent.
Section 213 permits “sneak-and-peek” searches that
challenge the Fourth Amendment and also violate Rule 41(d) of
the Federal Rules of Criminal Procedure.
“Sneak-and-peak” means simply that a designated
government official may enter a person’s home or office, look
around, and leave without notification they were even there, let
alone what was looked at. They
need not present a warrant at the time, or even after, they
engage in such actions, “for [an unspecified] reasonable
period.”
Section 214 allows the government to use pen registers
and trap and trace devices, without warrant.
Section 215 allows the FBI to require any record of any
person from anyone, and requires judges to approve of it (i.e.
“to enter…[the] order as requested”).
There is no requirement for the government to provide
specific facts supporting the contention that a person is an
agent of a foreign power.
Section 216 permits tracking devices for telephone and
Internet dialing, routing addressing and signaling information
“relevant to an ongoing criminal investigation.”
Note the change from “terrorist” investigation to
“criminal” investigation.
This happens numerous times in PATRIOT.
Thus, the Act is not really a “terrorist” act, but a
far wider one, with far more extensive implications for
governmental power over U.S. citizens.
In some instances, the change is from “terrorist” to
“criminal” investigations; in others, it is a shift from
“terrorist” to “intelligence” investigations.
The latter allows government intrusion on any citizen
they choose to target. As
we have seen, probable cause for such targeting is no longer
necessary.
Section 218 allows the collection and sharing of
intelligence information by law enforcement communities for
intelligence gathering only (“an ongoing intelligence
investigation”), not for criminal activity.
This changes the legal tradition radically, in that
criminal law enforcement, once separated from foreign
intelligence gathering, is no more.
This also breaks down any separation between law
enforcement and intelligence gatherers by allowing cooperation
between the two.
Finally and perhaps most significantly, the “primary
purpose” of espionage intelligence gathering under former
federal law now becomes a “significant purpose” for criminal
(i.e. not terrorist) investigation in PATRIOT.
The
Constitutional requirement of “checks and balances.”
The phrase “checks and balances” refers to the
relationship of equal power between the Judicial, Executive, and
Legislative branches of government which provides a guarantee
that governmental power will not be consolidated or abused by
one branch. This is
dealt with in Articles I-III of the U.S. Constitution. Article I specifies the legislative powers; Article II
specifies the powers of the executive; Article III specifies the
powers of the judicial. It
is particularly in regard to Article III that PATRIOT causes
grave concern. Article III, Section I, stipulates that the Supreme Court and
lower courts are the only branches of government to be invested
with judicial power. Furthermore,
Section II states that “the judicial power shall extend to all
Cases, in Law and Equity, arising under this Constitution.”
PATRIOT has been accused of undermining these aspects of
the Constitution in the following ways.
The use of “suspicion” as the sole requirement of a
search or seizure of citizen homes or offices effectively
bypasses the entire judicial system of warranted and supervised
seizures, in favor of Justice Department interests.
Section 203 allows
information sharing between the FBI, CIA, INS (Immigration and
Naturalization Service), and other federal agencies without
judicial oversight. It also permits disclosure of grand jury information without
judicial supervision. This
applies to all criminal
(i.e. not just to terrorist) investigations, and includes all
U.S. persons (i.e. citizens and non-citizens alike).
The following sections of PATRIOT eliminate the judicial
branch from the decision-making process of the Justice
Department: section 206 rules that no judicial review of roving
wiretaps is permitted; section 214 allows the use of pen
registers and trap and trace devices without warrant; section
215 requires a judge to court order seizures of “any tangible
thing” the Justice Department requests, merely by claiming
that it is “sought for” a terrorism investigation OR that it
is for “clandestine intelligence activities;” section 216
requires the judge to issue a court order for pen registers and
trap and trace devices. It
also permits no judicial supervision of activities under this
section. Finally,
in section 505, no judicial review is permitted of the
activities of forcing people to turn over information on other
people.
In Section 412, no court hearings outside of habeas
corpus are required before jailing aliens/immigrants.
The
Fifth Amendment. This
involves the requirement of due process, which requires the
government to follow established rules (not specifically
mentioned in the Bill of Rights), and not act arbitrarily.
This includes the right to be presumed innocent until
proven guilty, and the right to have the state prove its case
beyond a reasonable doubt.
The Fifth Amendment, in part, says: “No person shall
be…deprived of life, liberty or property, without due process
of law…” These
issues become relevant to the PATRIOT Act in the following ways.
Section 412 allows
the Attorney General to detain non-citizens for up to seven
days, and “for additional periods of up to six months”
without charging him/her with criminal or immigration violation
charges. Also,
immigration violations result in mandatory detention without
release until the Attorney General determines they are not
terrorists.
Furthermore, neither the Justice Department nor the INS
is required to present evidence on the alien; all that is needed
is the word of the Attorney General that he has “reasonable
grounds” for his actions.
Other
Issues Raised by PATRIOT
The
Freedom of Information Act (FOIA).
The PATRIOT Act puts limits on FOIA while at the same
time dramatically increasing the ability of the government to
collect massive amounts of information on U.S. persons.
The PATRIOT Act sections 213, 215, 216, 218, 505, 506,
and 508 all involve this issue.
Information
Sharing. Whether
one supports or rejects the PATRIOT Act, the one thing that is
agreed upon by all parties is that PATRIOT “breaks down the
walls” between investigative agencies of the federal
government such as the FBI, CIA, ATF, Secret Service, Defense
Intelligence Agency, National Security Agency, and the Customs
Service, all of whom now work together, and often now work under
the same roof, with the same computer database, to do their
intelligence and investigation work, as well as their
prosecution work. These
walls were originally erected due to illegal and unethical
domestic spying in the 1970’s.
The walls were designed to limit federal power.
By allowing the
CIA, FBI, and other federal agencies to use the grand jury
information-gathering content and process, it drops a cloak of
secrecy over all federal government investigative functions, for
any criminal act, not just terrorism. Second, and perhaps most importantly, the removal of the wall
between federal grand juries and intelligence agencies also
removes oversight of this process by a federal judge.
This concentrates a tremendous amount of power into a few
hands at the federal level, to say nothing of a tremendous
amount of information that is now at their disposal.
The legal matter involved here also concerns the CIA
charter, which bars it from domestic information gathering.
Before one comes
to the erroneous conclusion that the government needs such
powers in order to prevent terrorism from occurring, one must
remember that the Foreign Intelligence Surveillance Act of 1974
(FISA) gave these very powers to the government regarding their
spying on foreign nationals and foreign agents. PATRIOT turns these powers loose on American citizens, so
that we are under governmental suspicion and possible
surveillance on an equal footing with foreign agents.
Does this protect and preserve the rights guaranteed by
our Constitution? I
would suggest that one would be hard pressed to answer this
question in the affirmative, given the information presented
here. Nor does the
argument I heard expressed several times work: “they can spy
on me if they want, since I haven’t done anything wrong.”
The Bill of Rights was meant to prevent exactly such an
attitude on the part of our government.
Furthermore, the Supreme Court has universally held that
the Bill of Rights states that citizens are “assumed innocent
until proven guilty.” Thus,
the response that one has not done any wrong, so the government
is free to spy on them, is both shortsighted and in opposition
to the Constitution.
Finally, the
objection has often been made that the PATRIOT Act is not a
local issue. However, as one can see from the above information, any Act
of Congress that allows governments to spy on U.S. citizens for
“intelligence gathering,” or even for “criminal
suspicion” and without warrant, is a direct threat to
individual liberty. When
the freedom of individuals is threatened by their federal
government, that is always a “local” issue because
individuals are always local, as are their rights.
When the actions of the federal government can both
involve and drastically affect individual persons, since when
does that become an issue “not of local concern”?
So how are
American citizens to view the PATRIOT Act, which gives such
wide-ranging and extensive powers to the Justice Department
regarding their conduct toward American citizens?
If citizens find themselves alarmed by these federal
government actions, they must speak out in whatever way they
can. Writing
one’s Congressperson is always a good idea.
However, our government officials listen with a much more
attuned ear if citizens express themselves as groups, and/or
through official or semi-official channels.
It is time to get organized!
Join groups opposed to the policies of the Bush
administration. Where
possible, use local forms of government to send messages to
Washington. When
organized groups such as city councils or county and state
governments send their collective voices to the federal
government telling them that their actions are unacceptable,
that message is a strong one.
Such resolutions need not be representative of each and
every member of a community.
Democracy only requires a majority of concerned citizens
speaking in unison; after all, is democracy not about the will
of the people instead of the power of a few?
Dr. Robert Abele is a professor of philosophy at Illinois Valley
Community College, located near Chicago. He has written articles
on political philosophy and also on ethics and warfare, and is
now in the process of completing a book on ethics and the
invasion of Iraq. He also has a new book entitled A User's Guide
to the USA PATRIOT Act, published by University Press of
America, due out in November. Email <rabele@ivnet.com>
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