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HEADLINE: Terrorizing the bill of rights.
BYLINE: BOVARD, JAMES
How do you find a needle in a haystack? Set fire to the haystack.
Following the September 11 attacks, Congress joined the largest manhunt in history by passing a 342-page bill called the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. The bill's acronym, USA PATRIOT, revealed the depth of feeling, if not thought, that had gone into the measure. In support of the bill, House Judiciary Committee chairman James Sensenbrenner declared, "The first civil right of every American is to be free of domestic terrorism."
USA PATRIOT rewrote laws that had been put in place to curb past government abuses. It gave Attorney General John Ashcroft powers that would have been unthinkable a few months before. Lawmakers claimed they were bringing the Bill of Rights up to date, allowing law enforcement to operate efficiently in the age of the cell phone and laptop.
Thanks to USA PATRIOT and the flurry of executive orders that have followed, our government now can more easily conduct secret trials, listen to privileged conversations between prisoners and their counsel, imprison people indefinitely on minor charges without even confirming they are being held, eavesdrop on any telephone that a suspect may use (including those in public places such as airports), sort through thousands of private e-mails while promising not to read "content" (a term left undefined), conduct "sneak and peak" searches for physical evidence without notifying the suspect at the time, rummage through school records of foreign students and appoint bank clerks and employers as deputy counterterrorists (with no training). The CIA and other intelligence groups have been allowed back into the domestic arena. All manner of checks and balances, of oversight, have been tossed onto the bonfire.
In some cases, agencies seeking wiretaps in criminal investigations no longer need establish probable cause. A month after Bush signed USA PATRIOT, the administration went even further. It proposed "fill-in-the-blank" wiretaps on suspects when federal agents do not know the person's name. The Bush administration also wanted to allow agents up to 72 hours after conducting an "emergency" wiretap or search to request ex post facto permission from a judge for the intrusion.
USA PATRIOT is a classic bait and switch. Although its stated purpose is to defeat domestic terrorism, the government's new power reaches far beyond box cutters. For starters, the law defines domestic terrorism as activities involving "acts dangerous to human life" that, among other things, may "appear to be intended to influence the policy of a government by intimidation or coercion." Perhaps the lawmakers saw only images of airliners flying into skyscrapers, but the language is broad enough to encompass many less-extreme activities. It may take only a few scuffles at a rally to transform a protest group into a terrorist entity. The new thinking would allow the government to drop the hammer on environmental extremists (even those who are not spiking trees), anti-trade fanatics (even those who don't trash Starbucks) and anti-abortion protesters (even those who don't attack doctors). Even if the violence at a rally is initiated by a government agent provocateur--as happened at some Sixties antiwar protests--the feds could still reap the power to treat all of a group's members as terrorists.
And it will not be necessary to have participated in a rowdy street demonstration to be indicted under this act. If you provide a demonstrator with a place to sleep, you could be found guilty of aiding and abetting terrorism. Likewise, if you donate to an organization that may in the future be classified as a terrorist entity--including Greenpeace, the Gun Owners of America and Operation Rescue--you could face prison. Are such concerns far-fetched? Unfortunately, no. The Philadelphia Inquirer examined terrorism prosecutions from 1997 to 2001 (before the definition of terrorism was expanded). Among the supposed acts of terror were a tenant who impersonated an FBI agent in a call to his landlord protesting an eviction, an airline passenger who got drunk on a flight from China and demanded more liquor in an unruly fashion and a guy who asked his shrink for medicine because voices were telling him to kill George W.
Many of the bill's provisions are not bound by definitions of terrorist. New powers can be used against those suspected of breaking a criminal law, be it wearing the fur of an endangered species or being less than truthful to an IRS agent. As for the roving wiretaps and e-mail surveillance, you don't even have to be a suspect to have your right of privacy sacrificed.
The idea that sacrificed civil rights are the price we pay for security in times of crisis is hardly new. Such thinking seeks to justify the perpetual detention of terrorist suspects and the incarceration of those who criticize homeland security or disagree with Ashcroft's designation of certain groups as terrorists. There are historical precedents. President John Adams used sedition laws to lock up dissenting newspaper editors and the occasional congressman. Abraham Lincoln suspended habeas corpus during the Civil War. World War I gave us the Espionage Act, which made it illegal to "willfully utter, print, write or publish any disloyal, profane, scurrilous or abusive language about the form of government of the United States." And the list goes on. How far will we go?
The Bill of Rights does not distinguish between citizens and immigrants; it protects individual rights, not those of a privileged class. But the Attorney General now needs only to certify that he has "reasonable grounds to believe that the alien is engaged in any activity that endangers the national security" to detain an alien. But, we were proud to learn, those who are in custody still have some rights. When the Justice Department refused to disclose the names of its detainees, Ashcroft explained that the silence was necessary to protect their privacy.
Speaking before Congress, Ashcroft defended the secrecy of military tribunals thusly: "Are we supposed to read them their Miranda rights, hire a flamboyant defense lawyer, bring them back to the U. S. to create a new cable network of Osama TV or what have you, and provide a worldwide platform from which propaganda can be developed?" Well, yes. Better that than taking them into a soccer stadium and executing them without a trial, without evidence--or, worse, with secret evidence. The Bill of Rights was designed to protect individuals (not just citizens) from such overzealousness--or is it arrogance?
USA PATRIOT treats every American as a potential suspect, every federal agent as an angel. It asks us to ignore such dark episodes as the surveillance of Martin Luther King Jr., Cointelpro, the murder of Black Panther Fred Hampton and the Red files of the McCarthy era. Ashcroft scoffs at criticism and says simply, "Trust me." But already, the definition of the enemy has changed. In the hearing before Congress, the attorney general chastised potential critics, saying, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."
The Bush doctrine that "you're with us or with the terrorists" has come home.