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by Kellie Gasink & William Pleasant
Green Party of Chatham County, Savannah Georgia
The USA PATRIOT ACT is an acronym standing for: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act." This legislation was signed into law on October 26, 2002 as Public Law No: 107-56. The USA Patriot Act is composed of 342 pages. Most lawmakers admit that they never read the bill before voting on it. Put simply, from October 23 to October 26, a massive piece of legislation was rammed through both the House of Representatives and Senate, without public hearings of any sort. It was sold as the legal measures required to prevent future terroristic attacks on U.S. soil. In the wake of the September 11, 2001, attacks, the American people were gripped in fear. Any and all measures of self-protection seemed desirable. But in the hysteria, the President, aided and abetted by both houses of the federal legislature, violated the U.S. Constitution and, in turn, stripped away the basic civil liberties embodied in the Bill of Rights, in the name of "national security."
The USA Patriot Act (PA) is composed of many laws already on the books that are designed to counter terrorism in the U.S. What distinguishes the PA from these pre-September 11 laws is its ENABLING characteristics. Put simply, the criminal statutes, investigative rules and court procedures which safeguarded our constitutionally guaranteed civil liberties in previous anti-terror legislation were stripped away by the Patriot Act. They have been replaced by a system of Executive Branch fiat, now institutionalized in the department of Homeland Security. How did the USA Patriot Act accomplish this feat? The USA Patriot Act clamps down on:
FREEDOM OF ASSOCIATION: Government may monitor religious labor, and political institutions without suspecting criminal activity, to assist terror investigation.
FREEDOM OF INFORMATION: Government has closed once-public immigration hearings, has secretly detained hundreds of people without charges, and has encouraged bureaucrats to resist public records requests.
FREEDOM OF SPEECH: Government may prosecute librarians or keepers of any other records if they tell anyone that the government subpoenaed information related to a terror investigation.
RIGHT TO LEGAL REPRESENTATION: Government may monitor federal prison jailhouse conversations between attorneys and clients, and deny lawyers to Americans accused of crimes.
FREEDOM FROM UNREASONABLE SEARCHES: Government may search and seize Americans' personal records, business documents and telephone/internet activity without probable cause to assist terror investigation.
RIGHT TO A SPEEDY AND PUBLIC TRIAL: Government may jail Americans indefinitely without a trial.
RIGHT TO LIBERTY: Americans may be jailed without being charged or being able to confront the witnesses against them.
While many Americans were led by the Bush administration to believe that the Patriot Act was soley directed at foreign nationals in the U.S. who may pose a military threat to citizens and property (specifically people of Southwest Asian and North African descent--a version of racial profiling), it swiftly emerged that the actual day-to-day targets of the Patriot Act were U.S. citizens and legal aliens. Overwhelmingly, they have suffered the abuses of federal police policies which have led to public humiliation, invasion of personal privacy, intimidation, movement control and monitoring, capricious arrest and detention, and denial of legal remedy in the court system.
This document will demonstrate the following:
SEDITION OR SEDATION
In an ironical twist of history, the federal government, once viewed as the guardian of constitutional values against the political caprice of local governments--especially in the South--is now the chief promoter of repressive extra-constitutional police policies, primarily based upon race, religion and national origin, or perceived sympathy for proscribed categories of citizens and legal aliens.
In 1798, the United States almost went to war with France, because the French objected to the U.S. Treaty with England and, consequently, began attacking U.S. shipping. The famed XYZ Affair emerged as the bloody shirt of the time. The official U.S. government story was that three French officials demanded bribes from U.S. diplomatic envoys in exchange for receiving them. President John Adams refused to divulge the names of the alleged French extortionists, hence they became known as X, Y and Z. Nonetheless, Adams released the alleged and inflammatory diplomatic exchanges between the Frenchmen and the U.S. government. America became outraged and furiously rattled its saber. The war cry was: "Millions for defense, not one cent for tribute!" The jingoistic Federalist Party led the war-chant. The political products were the first surge in U.S. military spending and the first instance of "bi-partisan" support for the limitation of Americans' civil liberties as a matter of law.
Anti-French fever swept the land. Refugees from the French Revolution fled in terror. In retaliation for the alleged insult by the French government, Congress produced the Alien and Sedition Acts.
The Alien Act allowed the President to arrest, imprison, and deport "dangerous" immigrants on mere suspicion of "treasonable or secret machinations against the government." If a deported alien returned, the President could imprison him for as long as he thought "the public safety may require."
The Sedition Act made it unlawful for any person to write, print, publish, or speak anything "false, scandalous and malicious" about the government, either Congress or the Executive, if it was done with the intent to defame or to bring the government "into contempt or disrepute," or to excite the hatred of the people against the United States. The President determined who were the dangerous aliens and who was defaming the U.S. government.
French high seas piracy and alleged diplomatic insult aside, the Alien and Sedition Acts were actually targeted at American citizens and employed as a political tool of the Federalist Party. The Alien Act was used by Federalists to keep out of Congress qualified Democratic candidates who had only recently become U.S. citizens (such as Swiss immigrant, Albert Gallatin, who two years later became Secretary of the Treasury under President Thomas Jefferson). The Sedition Law was used to arrest, prosecute and jail Democratic newspaper editors who dared to oppose the John Adams administration.
The 1798 war hysteria gave the Federalist Party the green light to enact laws that were employed to scapegoat immigrants and silence political dissent by violating the civil liberties of U.S. citizens. Thomas Jefferson and James Madison answered President John Adams' attack on the Bill of Rights with the Virginia and Kentucky Resolutions.(1,2) These documents emphasized that states should and could reject unconstitutional laws that are enacted by Congress. This resistance, lodged over 200 years ago, stands as the historical and constitutional bedrock of today's local government resolutions to resist and repeal the USA Patriot Act; they take aim at both Congressional enactments and Executive Orders that abrogate the U.S. Bill of Rights.(3)
THE PALMER RAIDS
The Alien and Sedition Acts got a new lease on life in the wake of World War One, during the anti-labor union strike hysteria. In 1919, President Woodrow Wilson appointed A. Mitchell Palmer as his Attorney General. Worried by the revolution that had taken place in Russia, Palmer declared that communist agents were planning to overthrow the American government. His view was reinforced by the discovery of thirty-eight bombs sent to leading politicians and the Italian anarchist who blew himself up outside Palmer's Washington home. Palmer recruited J. Edgar Hoover as his special assistant and together they used the Espionage Act (1917) and the Sedition Act (1918) to launch a campaign against labor unionists, social radicals and leftist organizations.
As a consequence, at least ten thousand legal immigrants and citizen dissidents were rounded up in the so-called Palmer Raids. They were subjected to indefinite detention without charges or due process under the 14th Amendment of the U.S. Constitution. At least 240 legal aliens were deported, including the radical feminist Emma Goldman.
During World War II, Japanese Americans were placed in internment camps simply because they were Japanese. Franklin Delano Roosevelt's Executive Order No. 9066 led to the wholesale loss of jobs, businesses and homes by U.S. citizens of Japanese descent. Not until 1990 did the U.S. government acknowledge this breech of constitutional norms and apologize. Ultimately, the wartime internment of Japanese Americans cost the U.S. taxpayer $1.2 billion in reparations to the victims of illegal detention.
During the 1950s, McCarthyism ushered in an era of social paranoia that resulted in public denunciations, witch hunts, black-listing and, in a few instances, jailings. The operative legal policy was guilt by association with any organization or activity that threatened "national security," relative to the Cold War competition between the US and the USSR. Under the leadership of J. Edgar Hoover, the FBI carried McCarthyism into the 1960s and 1970s, long after the political influence of Senator Joseph McCarthy had been discredited and dismantled.
The FBI's COINTELPRO (The Counter-intelligence Program) became the extra-constitutional vehicle by which social activist organizations such as Dr. Martin Luther King, Jr.'s Southern Christian Leadership Conference, the Black Panthers, the Puerto Rican Young Lords, the American Indian Movement, the nascent Lesbian/Gay Liberation Movement and the broad organized opposition to the Viet Nam War were targeted for espionage, infiltration and disruption by the U.S. government. These extra-constitutional activities were carried out under Hoover's belief, endorsed by successive presidential administrations, that the upsurge of social activism and the Black-led demand for civil rights in the U.S. were merely tactics in a strategy for the Soviet takeover of America.
LESSONS FOR TODAY
It is apparent that whenever this country has been faced with military, political or social crisis, the leading sectors of society have resorted to violating the Bill of Rights and other Constitutional protections in the name of an often dubious notion of national security. The costs of these measures to individuals and classes of victims have been enormous, and have, historically speaking, accomplished little in promoting social cohesion or respect for government institutions. They have only left generations of wounded and embittered people.
The USA Patriot Act is a direct descendant of the 1996 Anti-Terrorism Act, a Clinton administration answer to the 1995 Oklahoma City bombing. James X. Dempsey and David Cole state in their book, "Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security," that the most troubling provisions of prior anti-terrorism laws, enacted in 1996 and expanded now by the USA Patriot Act, "were developed long before the bombings that triggered their final enactment." Dempsey is the former assistant counsel to the House Judiciary Subcommittee on Civil and Constitutional Rights and Deputy Director at the Center for Democracy & Technology, and Cole is professor of law at Georgetown University and an attorney with the Center for Constitutional Rights.
Reviewing the 1996 Antiterrorism Act, Dempsey and Cole declare that "the much-touted gains in law enforcement powers" under that Act, "produced no visible concrete results in the fight against terrorism." They add that the principles espoused in the Act "were shown in case after case to be both unconstitutional and ineffective in the fight against terrorism." And importantly, the writers insist that the United States government has not shown that the expanded powers it has obtained in the USA Patriot Act are necessary to fight terrorism.
More specifically, the legal scholars show that it was the Reagan Administration that initially proposed some of the most troubling provisions that eventually became part of the USA Patriot Act. When Reagan proposed those provisions, Congress rejected them on constitutional grounds. The first Bush Administration then made similar proposals, which were again rejected by lawmakers. Congress twice refused to enact the secret evidence provisions proposed by the first Bush administration. Ironically, just prior to 9/11, Congress was about to pass a law repealing the secret evidence provisions of the 1996 Antiterrorism Act.
The anti-constitutional provisions proposed by Reagan and the first Bush administration included the resurrection of guilt by association--a relic of the McCarthy Era --political association as grounds for exclusion or deportation, the ban on supporting lawful activities of groups labeled terrorist, the use of secret evidence and the empowerment of the Secretary of State to capriciously designate any political or social group as a terrorist organization without needing judicial or congressional review.
Several members of the House Judiciary Committee, both Democrat and Republican, balked at the 1996 Anti-Terrorism Act. Lawmakers repeatedly asked why new legislation was needed and how it would help fight terrorism. Administration witnesses literally refused to answer lawmakers' queries.
The Anti-Terrorism legislation was doomed to defeat--but the Oklahoma City Bombing gave it a new life. The carnage was used as political justification for the enactment of the very provisions lawmakers had previously found constitutionally suspect, and even more. Senator Orrin Hatch tagged on one of his pet projects, namely the limitation of habeus corpus. This amendment severely constrained people -- nothing to do with terrorism -- who were convicted in state courts from contesting their convictions in federal court.
The USA Patriot Act, in the same vein, amplifies the political goals of making it more difficult for citizens and legal aliens alike to review or appeal government wrongdoing. It allows for indefinite detention of suspected (not "proven") aliens, without probable cause of a crime, without a hearing or an opportunity to defend or challenge the evidence against them, when they have not even been proven to be a threat and have already established a legal right to remain here. The only process allowed the suspected alien is the "right" to go to federal court and sue the government for its abuses. And the USA Patriot Act even makes that a dubious affair, since it allows, for the first time in US history, the introduction of secret evidence and testimony in civil court proceedings. Moreover, a lawsuit against the federal government for abuses under the Patriot Act can only be conducted before a judge, no juries allowed.
Dempsey and Cole warned that the changes in fundamental law produced by the USA Patriot Act "are not limited to terrorist investigations at all, but apply across the board to all criminal investigations."
"It's not a stretch to imagine that such a vague definition [of terrorism] could be applied to labor unions, peace activists, and even political parties, if one or more members engaged in a violent protest that a law enforcement officer concluded was intended to terrorize another group," charged Professor Peter Erlinder of Minnesota's William Mitchell College of Law. "Homicide, first-degree murder, burglary-historically those are well-defined crimes. This definition is so malleable, because it allows for law enforcement to make judgment calls on a case-by-case basis."
TERMS IN USA PATRIOT ACT PRE-DATE 9-11
Without a doubt, the USA Patriot Act is the fruit of a pre-existing political agenda. This is best illustrated by Section 218, which amended the 1978 Foreign Intelligence Surveillance Act (FISA).
Under FISA, intelligence agencies could use extra-constitutional means to gather information on foreign powers and their agents. When an intelligence agency wanted to, for example, conduct a wiretap or search of a foreign agent it needed only to get an executive certification that the purpose of the surveillance was to gather foreign intelligence information. The USA Patriot Act modifies this language to say that it may only be a "significant purpose" for surveillance. The upshot is that, without probable cause or judicial review, a member of the executive branch of government (FBI, CIA, DIA, etc...) can spy on anyone, and the information may be used in a federal prosecution. In short, the Fourth Amendment of the U.S. Constitution has been slaughtered by the USA Patriot Act.
Since 1980, federal courts have consistently thrown out intelligence information gathered under FISA when it has been established that foreign intelligence gathering was not the primary purpose of the surveillance. The USA Patriot Act removes that obstacle to investigative fishing by federal law enforcement and intelligence agencies. Furthermore, under the information sharing provision of Section 203 of the USA Patriot Act, information gathered in this way can now be shared between intelligence and law enforcement agencies, for use as they see fit.
The USA Patriot Act is a political animal, composed of claws, hair and teeth that have been growing for over two centuries. There has always been hostility to the Bill of Rights and other constitutional measures which give citizens (and legal aliens) the right to judicial and political remedy for govermental abuses. The USA Patriot Act is the latest and most dangerous expression of that political tendency.
When Abraham Lincoln tried civilians in military courts during the Civil War, the Supreme Court held, in Ex Parte Milligan 71 U.S. 2 (1866): "Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism." (4)
Even in times of this nation's greatest domestic upheaval, there remained the principles and courage to uphold the basic values of the U.S. Constitution. Can we, in 2003, dare to fail to do the same?
For more information, contact the National Coalition to Repeal the USA Patriot Act, 22 West Bryan St., Savannah, GA 31401. www.repealnow.com. Toll Free phone: 1-866-237-7563. email: repealnow@lycos.com.
Kellie Gasink is the coordinator of the National Coalition to Repeal the USA Patriot Act annd is the Chair of the Green Party of Chatham County/GPUSA. William Pleasant is the Communications Director for the Green Party of Chatham County.
NOTES 1. Kentucky Resolution 1798
2. Virginia Resolution 1798
3. U.S. Constitution and the Bill of Rights 1791
4. (http://www.constitution.org/ussc/071-002a.htm)
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