Repeal the USA Patriot Act, Part Iby Jennifer Van Bergen
truthout.org (website)
4/1/2002 This is the first in a six-part series of articles on the USA Patriot Act:
"Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism."
This Act, passed in response to the September 11th, 2001 terrorist attacks on
our country, was passed hastily and in a time of fear. It affects all of us in some
very basic and important ways.
Part I of this series states briefly why we should demand the immediate repeal
or amendment of the USA Patriot Act.
Part II walks the reader back in time to look at two acts, which were also passed
hastily and in a time of fear. The Alien & Sedition Acts of 1798 parallel the USA
Patriot Act in many respects, and offer some important warnings.
Part III discusses the recent emergence of troubling evidence of violations of
civil rights under the USA Patriot Act, and looks at the disturbing possibility
of torture being used.
Parts IV and V look at specific sections of the Act. Part IV covers how the Act
mixes criminal law and foreign intelligence work, puts the CIA back in the business
of spying on Americans, allows law enforcement to enter your home without you knowing
it, and can track your emails and internet activity. Part V will discuss how the
Act punishes some people for engaging in innocent First Amendment associational
activity, violates other civil rights of immigrants, uses secret evidence, curbs
judicial oversight, and invades financial and student records.
Part VI discusses national security concerns, sums up, and closes with a potent
exhortation to Americans, made over 200 years ago by Senator Edward Livingston.
Part I: This Law is Dangerous
The USA Patriot Act is an insult to Americans. The name, itself, is insulting,
given what the Act contains and what it will someday be known for: its complete
abdication of democratic law and principles. It should be called the Constitution
Shredding Act.
In particular, it utterly relinquishes any semblance of due process, violates
the First, Fourth, Fifth, Sixth and Eighth Amendments, and unacceptably mixes aspects
of criminal investigations with aspects of immigration and foreign intelligence
laws.
Let me state it even more bluntly. This law is dangerous. It’s a travesty.
What is worse is that few Americans have the slightest idea what this law contains
or what it means.
Why is this? Because, the USA Patriot Act has several clever catches in it that
have enabled it to slip by the awareness of the average law-abiding citizen. First,
it relates mostly to foreign nationals. (So it can’t affect U.S. citizens, right?
Wrong.) Second, it deals with terrorism. (And we’re not terrorists, are we? Don’t
be so sure.)
If you think this law applies only to the bad guys who attacked our nation, think
again. Many provisions in this law apply to and will affect Americans, in many,
bad ways.
What is more frightening about it is that, despite the fact that the USA Patriot
Act was passed hastily without any debate or hearings and under a cloak of fear,
its provisions were obviously very carefully thought out and crafted to take power
out of the hands of courts and ensure absolute lack of oversight of law enforcement
and intelligence gathering.
There is no way that the USA Patriot Act came into existence solely in response
to September 11th. In fact, it is clear from prior legislative and case history
that law enforcement and intelligence have been trying for many years to obtain
these powers. It is only the unreasoning "bunker mentality" that followed September
11th that allowed its planners to pass it.
Indeed, one might question whether Congress could sincerely have intended this
Act, given that portions of it are re-enactments of the 1996 anti-terrorism laws
which had been repeatedly ruled unconstitutional by federal courts. One must wonder
whether congress- persons were in their right minds. If they were not, this law
cannot be valid.
Most troubling is that most of these powers do little to increase the ability
of law enforcement or intelligence to bring terrorists to justice … but, they do
much to undermine the Constitution and violate the rights of both immigrants and
American citizens alike.
Another reason why Americans do not yet know what a terrifying weapon has been
put in their government’s hand is that the Act is extremely nuanced and amends numerous
other laws.
One provision, for example, merely amends the words of an earlier act, which
had read "the purpose," to read "a significant purpose." What difference could that
tiny change make? It opens the door for the FBI to evade the probable cause warrant
requirement in criminal investigations whenever the FBI decides the information
might have "a significant purpose" in an intelligence investigation. No court can
intervene.
In other words, the legal protection that a court must determine that there is
probable cause of criminal activity before a search or seizure can be made is totally
discarded here. If the FBI thinks the information might contribute to an investigation,
whatever the target’s activity might be, legal or not, the FBI can simply go search
and seize. (And under the new "sneak and peek" provisions, they can do so without
you ever knowing it.)
Notice also that this clause mixes foreign intelligence gathering with domestic
criminal investigation, allowing the FBI to spy on Americans whom no court has determined
have done anything wrong.
Finally, this information, under another provision of the Act, can now be shared
with the CIA, in violation of its charter, which bars it from engaging in domestic
spying.
As the ACLU analysis of this section states, this simple little clause is being
used "as an end-run around the Fourth Amendment." It is a "power grab [that] will
sweep in Americans" as well as aliens.
It behooves us to take a good, solid look at the USA Patriot Act, so we can tell
our representatives what we think of it.
Tomorrow, we will take a walk back in time to look at two acts that were also
enacted hastily in a time of fear. The Alien and Sedition Acts of 1798 parallel
the USA Patriot Act in several respects and offer some important warnings.
Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law,
is an adjunct faculty member at the New School for Social Research in New York,
and is a member of the Board of the ACLU Broward County, Florida Chapter.
Jennifer Van Bergen is an Editor and a
regular contributor to t r u t h o u t. Close |