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I am sure you have heard of the USA Patriot Act which George Bush signed into law a few weeks ago, and with it he significantly boosted the government’s law enforcement powers while continuing a trend to cut back on the checks and balances that Americans have traditionally relied on to protect individual liberty. This Act was already written and ready to go long before September 11th. Recent criticism of Bush’s admission that he had received warnings only weeks before September 11th has made it more important to understand the origins of the USAPA.
The USA PATRIOT Act, the so-called “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, “a.k.a. the USAPA; was enacted in the immediate wake of 9/11,riding a wave of fear that spread over the nation. This Act has caused much concern among civil rights advocates. The Administration, however, responded to such concerns by calling critics unpatriotic. Now, the White House has had a similar response to critics of Bush’s recent admission of early warnings.
White House spokesman Ari Fleischer said: “I think that any time anybody suggests or implies to the American people that this president had specific information that could have prevented the attacks on our country on September 11, that crosses the line.”
Dick Cheney came out with the statement that Democratic criticism of bush’s handling of pre-September 11 terror warnings was “thoroughly irresponsible.” Chaney added an ominous remark to his “Democratic friends...that they need to be very cautious not to seek political advantage by making incendiary suggestions.”
Cynthia McKinney responded: “If committed and patriotic people had not been pushing for disclosure, today’s revelations would have been hidden by the White House,” she says. “Ever since I came to Congress in 1992, there are those who have been trying to silence my voice. I’ve been told to ‘sit down and shut up’ over and over again. Well, I won’t sit down and I won’t shut up until the full and un-varnished truth is placed before the American People.”
House Minority leader Dick Gephardt said: “Our nation is not well served when the charge of ‘partisan politics’ is leveled at those who simply seek information that the American people need and deserve to know.”
Oddly, following Democratic criticism of Bush’s admission, came the weekend news that the White House now anticipates an even greater terrorist attack on American soil. Intrepid investigative journalist Michael Ruppert, best known for his reports claiming government’s prior knowledge of 9/11, states that Fox TV canceled his Saturday appearance on the Geraldo Rivera show due to these reports.
These may be mere coincidences. Time Magazine released a lengthy article by Michael Elliott, “How the U.S. Missed the Clues,” in which he states: “Last summer the White House suspected that a terrorist attack was coming. But four day mistakes kept the U.S. from knowing what to do.”
Whether the Administration could have anticipated 9/11 or not, the proponents of the USAPA WERE WAITING TO GO LONG BEFORE THAT DAY. Similar antiterrorism legislation was enacted in the 196 anti-terrorism Act, which however did little to prevent the events of 9/11, and many provisions had either been declared unconstitutional or were about to be repealed when 9/11 occurred.
Just like so many times before, whenever the Administration, whether it be Bush Sr., Clinton, or Bush Jr., whenever they were in danger of losing some unconstitutional law they wanted passed some terrorist act would occur. The first of which was when government agents assassinated Gordon Kahl in Arkansas; when FBI assassins murdered Vicki Weaver and her son in Idaho; when government agents planted a bomb at the Atlanta Olympic games and tried to blame a security guard; Flight TWA 800 was shot down by a government missile; the first WTC bombing which was filmed by FBI agents, who furnished the material to make the bomb, the man with the expertise to make the bomb, loading the bomb into the truck, filming the truck to its parking place under the WTC building, and the actual explosion itself.
Then when Clinton was about to really get into trouble with the America people and his support was falling drastically, the Oklahoma City Bombing which was blamed on a stooge by the name of McVey who thought he was doing his patriotic duty; then when some gun bills and other constitutional protections were getting in the way the WTC building were destroyed by radio control, by Israeli agents and CIA operatives.
James X. Dempsey and David Cole state in their book, “Terrorism & the Constitution: Sacrificing Civil Liberties in the Name of National Security,” that the most troubling provision of the pre-USAPA anti-terrorism laws, enacted in 1996 and expanded now by the USAPA. “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.
Looking back at 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 authors comment that the United States government has not shown that the expanded powers it has asserted in the USAPA are necessary to fight terrorism. Dempsey and Cole trace the origins of the national security trend back to the “intolerant approaches of the 1950s,” when association with Communist or anarchist groups was made a grounds for exclusion and deportation. Congress removed the guilt by association law in 1990, but it was revived only six years later by law enforcement proponents in the 1996 Antiterrorism Act, immediately following the Oklahoma City Bombing.
More specifically, however, Dempsey and Cole show that it was the Reagan Administration which initially proposed some of the most troubling provisions which eventually became part of the USAPA. When Reagan proposed these 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 provision s proposed by Bush I. (Indeed, just prior to 9/11, Congress WAS ABOUT TO PASS A LAW REPEALING THE SECRET EVIDENCE PROVISIONS OF THE 1996 ANTITERRORISM ACT)
The troublesome provision proposed by Reagan and the first bush included the resurrection of guilt by association, 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 DESIGNATE GROUPS AS TERRORIST ORGANIZATIONS, WITHOUT JUDICIAL OR CONGRESSIONAL REVIEW.
Despite the Reagan and Bush proposals and one-sided hearings, there was broad-based opposition to such legislation. According to Dempsey and Cole, “several members of the house Judiciary Committee, both Democrat and Republican, questioned the need for the legislation.” Lawmakers repeatedly asked why new legislation was needed and how it would help.
Administration witnesses laterally refused to answer lawmakers’ questions, finally causing Representative John Conyers to exclaim: “I’ve never seen this much law created as a result of prosecutions that we agree worked very effectively!”
“The legislation languished and seemed headed for defeat,” says Dempsey and Cole.
Until Oklahoma City!
The Oklahoma City bombing, for which there exists significant body of evidence of a shadow government operation, was used as justification for the enactment of the very provisions lawmakers had previously found mot constitutionally troublesome.
Included in the resulting 1996 Antiterrorism Act, although it had nothing to do with terrorism at all, was Republican Senator Orrin Hatch’s long-sought provision to limit the right of habeas corpus. Habeas corpus is the procedure whereby a person convicted by a state court can challenge that conviction in a federal court. The thing is, terrorism cases are brought in federal, not state, courts. “Senator Hatch wanted to make it more difficult for federal courts to order retrials of prisoners where state courts had violated the U.S. Constitution,” according to Dempsey and Cole.
The USAPA clearly furthers the goals of making it more difficult for anyone to review or appeal government wrongdoing. It allows for indefinite detention of suspected (not “PROVEN”) alien terrorist (and domestic as well), 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 action. After the fact.
The USAPA expands the Secretary of State’s power to designate terrorist groups without any court or congressional review and allows for secret searches WITHOUT PROBABLE CAUSE. Dempsey and Cole state that these changes “go far beyond what was need to respond to terrorism.” Indeed, they point out that in many i9nstances, “THE CHARGES ARE NOT LIMITED TO TERRORIST INVESTIGATIONS AT ALL, BUT APPLY ACROSS THE BOARD TO ALL CRIMINAL INVESTIGATIONS.”
A good example of the kind of change brought about under the USAPA, which illustrates the underlying and pre-existing agenda of its proponents, is section 218, which amends a single phrase in the 1978 Foreign Intelligence Surveillance Act (FISA). The purpose of FISA was to allow intelligence agencies to gather information about foreign powers without the restrictions imposed on them by the constitution. The reasoning for this was that the purpose of foreign intelligence gathering is not to detect crimes but to gather information about foreign agents.
Under FISA, when an agent wanted to obtain authority to conduct the electronic surveillance or secret physical searches, a designated official of the executive office had to certify that “the purpose” for the surveillance was to obtain foreign intelligence information. Section 218 of the USAPA modifies that clause so that intelligence gathering need not be “the purpose,” in other words, it need no longer the be primary purpose, but may be only “a significant purpose” of the surveillance.
This means that if an official can certify that obtaining foreign intelligence is a significant purpose of a surveillance action (the other purpose clearly being criminal investigation), he can avoid the requirement that he first show probable cause of criminal activity. It means the FBI, the CIA (which was never supposed to spy on American citizens in America proper), or any other intelligence agency, can surveil you with out probability cause, as long as they say the surveillance has something to do with a foreign intelligence investigation of some sort (which may otherwise not even involve you directly). Because courts have consistently refused to “second guess”FISA surveillance certifications, there is effectively no judicial review of such activities. This small change has enormous ramifications. For all practical purposes, the section 218 USAPA amendment of FISA allows government to completely avoid Fourth Amendment probably cause requirements for searches and seizures of American citizens (not just immigrants).
The Congressional Research Service of the Library of Congress notes: “From the beginning, defendants have questioned whether authorities had used a FISA surveillance order against them in order to avoid the predicate crime threshold...”
In 1980, the 4th Circuit Court stated in the landmark case of U.S. v Truong Dinh Hung that “the executive should be excused from securing a warrant only when the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” Another circuit court declared in 1991 that “the investigation of criminal activity cannot be the primary purpose of (FISA) surveillance.”
In other words, courts have pretty consistently thrown out intelligence information gathered under FISA where it has been established that foreign intelligence gathering was not the primary purpose of the surveillance. It is clear that intelligence agencies have wanted to change this law for some time. It is clear that they have been frustrated by the “primary purpose rule.” However, it is not merely the result of intelligence agency wishes or a matter of history that this restriction has now been overridden. History shows that congress has consistently resisted enacting these types of changes. History also shows that the Reagan and Bush I Administrations repeatedly attempted to push such laws through. Oklahoma City proved that only a “real” terrorist attack would convince Congress.
Furthermore, it is obvious that the proponents of this amendment know it is an end-run around the Fourth Amendment. They have had many years to think about it and have repeatedly shown their willingness to enact carefully crafted, unconstitutional laws. They know the amendment allows intelligence to conduct criminal investigations on American citizens without adherence to basic constitutional protections. Furthermore, under the information sharing provision of section 203 of USAPA, information gathered in this way can now be shared with other intelligence and law enforcement agencies, for whatever uses they want. Most significantly, it is clear that the events of 9/11 gave the proponents of this amendment the opportunity they needed to slip it by Congress.
Among the USA Patriot Act's most troubling provisions, are measures that:
Allow for indefinite detention of non‑citizens who are not terrorists on minor visa violations if they cannot be deported because they are stateless, their country of origin refuses to accept them or because they would face torture in their country of origin.
Minimize judicial supervision of federal telephone and Internet surveillance by law enforcement authorities.
Expand the ability of the government to conduct secret searches.
Give the Attorney General and the Secretary of State the power to designate domestic groups as terrorist organizations and deport any non‑citizen who belongs to them.
Grant the FBI broad access to sensitive business records about individuals without having to show evidence of a crime.
Lead to large‑scale investigations of American citizens for "intelligence" purposes.
Wiretapping and Intelligence Surveillance
The wiretapping and intelligence provisions in the USA Patriot Act sound two themes: they minimize the role of a judge in ensuring that law enforcement wiretapping is conducted legally and with proper justification, and they permit use of intelligence investigative authority to by‑pass normal criminal procedures that protect privacy. Specifically:
1 ). The USA Patriot Act allows the government to use its intelligence gathering power to circumvent the standard that must be met for criminal wiretaps. Currently FISA surveillance, which does not contain many of the same checks and balances that govern wiretaps for criminal purposes, can be used only when foreign intelligence gathering is the primary purpose. The new law allows use of FISA surveillance authority even if the primary purpose were a criminal investigation. Intelligence surveillance merely needs to be only a "significant" purpose. This provision authorizes unconstitutional physical searches and wiretaps: though it is searching primarily for evidence of crime, law enforcement conducts a search without probable cause of crime.
2). The USA Patriot Act extends a very low threshold of proof for access to Internet communications that are far more revealing than numbers dialed on a phone. Under current law, a law enforcement agent can get a pen register or trap and trace order requiring the telephone company to reveal the numbers dialed to and from a particular phone. To get such an order, law enforcement must simply certify to a judge; who must grant the order, that the information to be obtained is "relevant to an ongoing criminal investigation." This is a very low level of proof, far less than probable cause. This provision apparently applies to law enforcement efforts to determine what websites a person had visited, which is like giving law enforcement the power ‑ based only on its own certification ‑‑ to require the librarian to report on the books you had perused while visiting the public library. This provision extends a low standard of proof; far less than probable cause, to actual "content" information.
3). In allowing for "nationwide service" of pen register and trap and trace orders, the law further marginalizes the role of the judiciary. It authorizes what would be the equivalent of a blank warrant in the physical world: the court issues the order, and the law enforcement agent fills in the places to be searched. This is not consistent with the important Fourth Amendment privacy protection of requiring that warrants specify the place to be searched. Under this legislation, a judge is unable to meaningfully monitor the extent to which her order was being used to access information about Internet communications.
4). The Act also grants the FBI broad access in "intelligence" investigations to records about a person maintained by a business. The FBI need only certify to a court that it is conducting an intelligence investigation and that the records it seeks may be relevant. With this new power, the FBI can force a business to turn over a person's educational, medical, financial, mental health and travel records based on a very low standard of proof and without meaningful judicial oversight.
The FBI already had broad authority to monitor telephone and Internet communications. Most of the changes apply not just to surveillance of terrorists, but instead to all surveillance in the United States.
Law enforcement authorities; even when they are required to obtain court orders, have great leeway under current law to investigate suspects in terrorist attacks. Current law already provided, for example, that wiretaps can be obtained for the crimes involved in terrorist attacks, including destruction of aircraft and aircraft piracy.
The FBI also already had authority to intercept these communications without showing probable cause of crime for "intelligence" purposes under the Foreign Intelligence Surveillance Act. In fact, FISA wiretaps now exceed wiretapping for all domestic criminal investigations. The standards for obtaining a FISA wiretap are lower than the standards for obtaining a criminal wiretap.
The law dramatically expands the use of secret searches. Normally, a person is notified when law enforcement conducts a search. In some cases regarding searches for electronic information, law enforcement authorities can get court permission to delay notification of a search. The USA Patriot Act extends the authority of the government to request "secret searches" to every criminal case. This vast expansion of power goes far beyond anything necessary to conduct terrorism investigations.
The Act also allows for the broad sharing of sensitive information in criminal cases with intelligence agencies, including the CIA, the NSA, the INS and the Secret Service. It permits sharing of sensitive grand jury and wiretap information without judicial review or any safeguards regarding the future use or dissemination of such information.
These information sharing authorizations and mandates effectively put the CIA back in the business of spying on Americans: Once the CIA makes clear the kind of information it seeks, law enforcement agencies can use tools like wiretaps and intelligence searches to provide data to the CIA. In fact, the law specifically gives the Director of Central Intelligence ‑ who heads the CIA ‑‑ the power to identify domestic intelligence requirements.
The law also creates a new crime of "domestic terrorism." The new offense threatens to transform protestors into terrorists if they engage in conduct that "involves acts dangerous to human life." Members of Operation Rescue, the Environmental Liberation Front and Greenpeace, for example, have all engaged in activities that could subject them to prosecution as terrorists. Then, under this law, the dominos begin to fall. Those who provide lodging or other assistance to these "domestic terrorists" could have their homes wiretapped and could be prosecuted.
The USA Patriot Act continues the unfortunate trend of expanding government access to personal financial information rather than safeguarding it against intrusion. While there is certainly a need to shut down the financial resources used to further acts of terrorism, the USA Patriot Act goes beyond its stated goal of combating international terrorism and instead reaches into innocent customers' personal financial transactions.
Under the new law, financial institutions are required to monitor daily financial transactions even more closely and to share information with other federal agencies, including foreign intelligence services such as the CIA. The law also allows law enforcement and intelligence agencies to get easy access to individual credit reports in secret. The law provides for no judicial review and does not mandate that law enforcement give the person whose records are being reviewed any notice.
The USA Patriot Act allows law enforcement officials to cast an even broader net for student information without any particularized suspicion of wrongdoing. When the changes in federal law dealing with student records privacy are combined with other information‑sharing provisions contained in the new law, it becomes clear that highly personal student information will be transmitted to many federal agencies in ways likely to harm innocent students' privacy.
Since September 11, law enforcement agencies from all levels of government have faced few barriers in accessing student information. According to the American Association of Collegiate Registrars and Admissions Officers, about 200 colleges and universities have turned over student information to the FBI, INS and other law enforcement officials.
But law enforcement agencies wanted even easier access to a broad range of student information and the USA Patriot Act gave it to them by allowing them to receive the student data collected for the purpose of statistical research under the National Education Statistics Act. The statistics act requires the government to collect a vast amount of identifiable student information and ‑ until now ‑ has required it to be held in the strictest confidence without exception.
The USA Patriot Act, however, eliminates that protection and ‑ while it requires a court order ‑ allows law enforcement agencies to get access to private student information based on a mere certification that the records are relevant to an investigation. This certification, which a judge cannot challenge, is insufficient to protect the privacy of sensitive information contained in student records.
ALSO YOU SHOULD BE AWARE THAT ONCE YOU LEAVE OFFICE THEN YOU WILL ALSO HAVE TO LIVE UNDER THE LAWS THAT YOU AND OTHERS PASS WHILE IN OFFICE; AND YOUR FAMILY WILL BECOME SUBJECT TO THOSE SAME LAWS ALSO.