Repeal the USA Patriot Act, Part VIby Jennifer Van Bergen
truthout.org (website)
4/6/2002 This is Part VI of a six-part series on t r u t h o u t on the USA Patriot
Act. This part discusses national security and some steps we can take to retain
both our security and our liberty.
Repeal the USA Patriot Act
 Part
VI: National Security & Civil Liberty
by
Jennifer Van Bergen
t
r u t h o u t | April 6, 2002
This is a time of fear. What is even more frightening to some people than the
terrorists attacks we suffered - or perhaps one should say, on top of the attacks
-- are the warlike measures of President Bush. Others feel that Bush is doing a
good job of protecting us, while yet others think that he is a crook, but even if
he is, it is good to have someone like that doing our dirty work for us.
Terrorism is a big issue. National security is a big issue. Civil rights is a
big issue. Who is right: the hawks or the doves? (Thomas Jefferson, himself the
Great Dove, resorted to the dark uses of slanderous hack writers, treasonous double
agents in foreign pay, and, it is suspected, even assassins.)
I have no doubt that Al Qaida is a dangerous terrorist network. It is dangerous.
It is lethal. Its members hate Americans of all creeds and races. And they will
do whatever they can, even destroy themselves, in order to destroy us and our way
of life.
But, these dangers do not require us to abandon our commitment to the democratic
ideals of our Constitution. If democracy cannot stand up to terrorism, it is not
worth much. This is the time of all times for democracy to show its colors. All
the colors that make up this nation of immigrants. A free and open society is the
true antidote to terrorism. This neither requires blind self-exposure to danger
nor blind policing.
The Eagle does not have to mean war. It can mean foresight, insight, and the
ability to soar above paranoid prejudices.
To look in the face of terror, one must be willing to see into the darkness.
It is not a comfortable thing to do. Many of us want the dirty work done, as long
as we don't have to look into that darkness ourselves. But, looking at terror is
not the same as abandoning fairness. The USA Patriot Act does abandon fairness,
in many respects.
National security does not require this. As Bruce M. Ramer testified on behalf
of the American Jewish Committee during the House Judiciary Subcommittee Hearings
on the Secret Evidence Repeal Act (H.R. 2121) of 2000: "There is nothing inconsistent
in assuring that law enforcement authorities are properly equipped to respond to
the threat of terrorism while, at the same time, assuring that immigrants and refugees
are treated fairly and decently."
Mr. Ramer's recommendations are worth noting here. He proposed adopting the procedural
protections that were originally enacted in the Alien Terrorist Removal Act (ATRA)
of 1996. This Act was amended by the immigration reform law later in 1996, which
removed some of ATRA's protections. ATRA applied only to alien removal cases. It
was intended to kick in only where an alien "would pose a risk to ... national security."
Once that was determined, ATRA established rules that assured the basic procedural
protections of the alien's right to a public hearing, representation by counsel,
the opportunity to examine evidence, including an unclassified summary of classified
evidence, and to introduce exculpatory evidence.
These due process procedures were not preserved in the 1996 Anti-Terrorism and
Effective Death Penalty Act, and although more and more federal courts were finding
portions of that law unconstitutional, many of the same provisions were again enacted
in the USA Patriot Act. As I pointed out in Part I of this series, one might question
the lucidity of our congressman in doing this - and, thus, the legal validity of
the Patriot Act.
Ramer's recommendations do not answer the question of how one determines that
an alien, or an American for that matter, is a risk to national security, but it
does address the problem of the use of secret evidence.
As Parts III and IV of this series show, the ability to use secret evidence opens
the door for wide abuse of civil rights. Under the USA Patriot Act, although the
Supreme Court has rejected indefinite detention of aliens in deportation, an alien
can be detained his entire life on the basis of evidence he has no opportunity to
meet or refute. This is appalling and unacceptable in a democratic society.
In addition, in the cases in which an alien has finally been given the opportunity
to challenge the secret evidence, courts have found no basis for detention. For
example, the case of Hany Kiareldeen, released after 18 months of detention in October
1999, apparently held solely on accusations made by his wife during a custody battle.
Upon his release, she disappeared with their child. Or Nasser Ahmed, released after
three years in solitary confinement on no charges. Or Anwar Hammad, never charged
with a crime, never found to have been engaged in or associated with terrorism,
released after over four years. Or Dr. Mazen al-Najjar, a respected university professor,
a stateless Palestinian, and a resident in the U.S. for 18 years before he was detained.
After several years in prison, al-Najjar was released in December 2000, the judge
finding the classified evidence insufficient grounds to hold him. Free for about
a year, he was then taken again into custody, where he currently remains, on deportation
proceedings.
To date, secret evidence has been used largely in immigration cases. It is clear
that under the USA Patriot Act, its use will be extended to cover domestic criminal
cases. Only recently, the Department of Justice announced its plans to use secret
evidence to justify financial sanctions against an American Muslim charity based
in Chicago.
No person should be detained, indicted, or convicted on secret evidence alone
in order to protect national security. The idea is an oxymoron. The true threat
to national security is a government that can jail people on evidence that couldn't
stand the light of day.
The phrase "a threat to national security" should not be used so often that it
sounds like the boy who cried wolf. Americans need to question how a threat to national
security should be determined. Do we simply round up all the Arabs or Muslims, like
in the movie, "The Siege"? Why not then round up all the peace activists, environmentalists,
and political opponents?
There should be procedures established to determine what meets the criteria of
"a threat to national security." At this time, at best, federal judges are merely
given the opportunity to view classified evidence in camera and ex parte, and apply
their own individual, personal judgment as to whether revealing the evidence would
endanger covert operations or operatives or national security, the evidence is adequate
grounds to further detain the alien suspect, whether and what portions of the secret
evidence should be summarized in an unclassified summary for the defendant to challenge,
and whether such a challenge would be sufficient to successfully refute all the
charges.
Judges must now use their best judgment to make these determinations, but they
have no standards or baseline criteria to follow in making such determinations.
This is, as I say, at best. At worst, judges are not even given an opportunity
to review such evidence or to determine whether the indictees or detainees are held
on the slightest rational ground. Judicial oversight must never be relinquished,
especially on cases that concern national security or use secret evidence.
The USA Patriot Act raises many additional concerns. This series has raised only
a few of the worst ones.
In closing, it is worth quoting the words of a senator speaking before one of
our early congresses. On June 21, 1798, the last day of the congressional debates
on the Alien and Sedition Acts, Senator Edward Livingston spoke the following words
to the Senate:
"If we are ready to violate the Constitution, will the people submit to our unauthorized
acts? Sir, they ought not to submit; they would deserve the chains that these measures
are forging for them. The country will swarm with informers, spies, delators, and
all the odious reptile tribe that breed in the sunshine of despotic power ... The
hours of the most unsuspected confidence, the intimacies of friendship, or the recesses
of domestic retirement, afford no security. The companion whom you trust, the friend
in whom you must confide, the domestic who waits in your chamber, are all tempted
to betray your imprudent and unguarded follies; to misrepresent your words; to convey
them, distorted by calumny, to the secret tribunal where jealousy presides - where
fear officiates as accuser, and suspicion is the only evidence that is heard ...
Do not let us be told that we are to excite a fervor against a foreign aggression
to establish a tyranny at home; that like the arch traitor we cry "Hail Columbia"
at the moment we are betraying her to destruction; that we sing "Happy Land," when
we are plunging it in ruin and disgrace; and that we are absurd enough to call ourselves
free and enlightened while we advocate principles that would have disgraced the
age of Gothic barbarity."
The USA Patriot Act returns us to the age of Gothic barbarity. This Act does
not belong in a democracy. It should be repealed. If it is not repealed, it should
be amended to remove those provisions, which violate the civil rights of citizens
and immigrants.
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 |