|Montreal, May 11, 2002 / No 104|
by Ralph Maddocks
In my last article, regarding Canadian anti-terrorism legislation
Passed on October 25th 2001, only 44 days after the events of 9-11, and 34 days before Canada got around to doing it, the USA Patriot Act is a truly frightening document. It is a complete renunciation of the principles of democratic law and according to some violates the First, Fourth, Fifth, Sixth and Eighth Amendments. It also mixes aspects of criminal investigations with features of immigration and foreign intelligence laws. Like its Canadian cousin, the Act was passed with little or no debate and no hearings. Again, like C-36 it could not have been crafted in such a short time. It is the implementation of powers long sought by the intelligence and law enforcement communities, in addition to restoring previously rejected, parts of the 1996 Anti-Terrorism Act. It makes one wonder whether the members of congress who passed this appalling legislation were of sound mind and fully conscious when they did so. There were, apparently, just two dissenters.
Like all the others of its kind the USA Patriot Act does little to increase
the abilities of the law enforcement and intelligence communities to bring
terrorists to justice.
Judging from the polls, the average citizen in the USA has no real appreciation of the importance of this legislation. Both groups have little understanding of how it affects the cherished constitutional rights of both citizens and immigrants to the USA. The language of the Act is very nuanced and amends a myriad of other laws. One example, an earlier act which contains the words "the purpose," has been amended to read "a significant purpose." This small change means that the FBI could evade the probable cause warrant requirement in criminal investigations whenever they decide that the information might have "a significant purpose" in an intelligence investigation. No US court could intervene to ensure that probable cause exists before granting a request to search and seize.
In fact, under the so-called "sneak and peak" provisions the FBI can enter your house when you are not at home, look around, take pictures, and even seize your property, all without telling you. As Morton Halperin, a former National Security Council consultant, wrote in The New Yorker if a government intelligence agency "thinks you're under the control of a foreign government, they can wiretap you and never tell you, search your house and never tell you, break into your home, copy your hard drive, and never tell you that they've done it." The Electronic Frontier Foundation stated: "The civil liberties of ordinary Americans have taken a tremendous blow with this law [...] Yet there is no evidence that our previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists."
Section 216 of the USA Patriot Act gives law enforcement, not only the authority to intercept transmissions from people suspected of terrorist activity, but also from people under investigation for other crimes as well. One might think this isn't so bad, after all they are criminals. However, this authority now contains no constitutional safeguards, judges are now required to issue blank warrants without reference to a location or jurisdiction, as long as law enforcement "certifies" that the surveillance is "relevant to an ongoing criminal investigation."
Whatever happened to the Fourth Amendment and its requirement that law enforcement go to a judge and show there is probable cause that criminal activity is occurring?
The Act doesn't stop there, this section extends this low threshold of proof beyond the mere "trapping and tracing" of telephone numbers. It extends it to tracing your e-mails and Internet use as well. While telephone numbers may be separated easily from telephone conversations; e-mail addresses are not so easily severed from their contents. The FBI though, says that it can be trusted to separate the e-mail addresses from the content. That must be a very comforting for those whose e-mails are opened.
One might think that the USA Patriot Act would be very clear about who is or is not a terrorist. You think you know who the terrorists are? They are those extremist fanatical Muslims with funny names, from far away places. Have another look. A terrorist could be anyone who tries to influence the policy of the government by intimidation or coercion, if their actions break any laws and are dangerous to human life, presumably including their own. This definition could include an anti-Vietnam War protester from the1960's.
A terrorist organization can now include not only organizations designated by the Attorney General, but those identified by the Secretary of State as having provided material support for, committed, incited, planned or gathered information on potential targets and terrorists acts of violence. You can be arrested for engaging in terrorist activities if you solicit on behalf of such organizations, or recruit on their behalf, or provide them with material support.
Borrowing from the definition of international terrorism contained in 18 USC 2331, the Act's Section 802 creates the federal crime of "domestic terrorism." This section, applying to US citizens as well as to aliens, states that acts committed within the United States "dangerous to human life that are a violation of the criminal laws" can be considered acts of domestic terrorism if they "appear to be intended" to "influence the policy of a government by intimidation or coercion," or "to intimidate or coerce a civilian population."
It is hard to find a more nebulous phrase than this one. What does "appear to be intended" mean? Who determines if it appears to be intended? The latitude this phrase gives is beyond understanding and will serve only to encourage all the paranoid zealots to come out of the woodwork. If a US Congressman requested documents from a Cabinet member, could he be assumed to be intending to be breaking the law and intending to influence policy? We have seen already, in the Enron case, what Messrs. Bush and Cheney think about producing documents in the possession of the Administration. Public requests for information will doubtless be considered to be illegal incursions into the Administration's self appointed right to secrecy. Given the apparent scope of what is considered to constitute national security, any such requests might be considered "dangerous to human life."
Nancy Chang from the Centre for Constitutional Rights wrote: "Vigorous protest activities, by their very nature, could be construed as acts that 'appear to be intended [...] to influence the policy of a government by intimidation or coercion.' Further, clashes between demonstrators and police officers and acts of civil disobedience – even those that do not result in injuries and are entirely non-violent – could be construed as 'dangerous to human life' and in 'violation of the criminal laws.' Environmental activists, anti-globalization activists, and anti-abortion activists who use direct action to further their political agendas are particularly vulnerable to prosecution as 'domestic terrorists.'"
Prosecution for terrorist activity can take place if you have supported or associated with an organization that is NOT designated as a terrorist organization, since a terrorist organization can be anyone who provides material support to so-called terrorist activity, which could be someone supporting the Palestinians against the Israelis, or someone protesting the US bombing of Afghanistan.
One of the reasons why there has been virtually no discussion of the realities of the events of 9-11 is probably because Attorney General John Ashcroft has made it perfectly clear that he would interpret any public debate or dissent as just that. He said such public discussion would "erode our national unity [...] diminish our resolve [...] give ammunition to America's enemies, and pause to America's friends." So now discussion has become a crime and, for example, critics of the official explanations for the Pentagon crash have been silenced. Critics have lost their radio shows, and the US media has fallen silent. Even a member of Congress who asked the simple and obvious question, "Why has there been no deep and thorough investigation by Congress of the events of 9-11?," has been the subject of vituperative remarks and questions regarding her mental state. In Mr. Bush's view, it seems that even asking such simple and obvious questions merits instant labeling as a terrorist.
Where are the Bernsteins and Woodwards of yesterday?
As in the Canadian Anti-terrorist Act, the US is shifting to a guilty before proven innocent phase. This is especially true in the case of aliens, once the Attorney General has "certified" that an alien is a terrorist, or a threat to national security, the Immigration and Naturalization Service (INS) may detain that person without indictment for seven days before it brings any immigration or criminal charges. Once someone is certified as a terrorist, or a threat to national security under the seven-day holding provision, the government can then detain that person indefinitely on nothing more than a visa violation. Of course once these people are out-of-sight, they will be out-of-mind. Worse, the label of terrorist attaches without any trial or proof of guilt. In other words, the law turns the presumption of innocent-until-proven-guilty upside-down. In a switch on Alice in Wonderland one commentator wrote, "Label first; find guilty later, is the new law."
The British had a similar law, called the Prevention of Terrorism Act, designed to deal with IRA suspects. It was responsible for such monstrous abuses of justice as the lengthy detentions of the Guildford Four and the Birmingham Six for crimes which they did not commit. They were arrested, detained without counsel, beaten and interrogated under extremely coercive conditions before being convicted and imprisoned.
Already there has been testimony by a lawyer, Gerald H. Goldstein, before the US Senate Judiciary Committee to the effect that "... his client had been arrested on September 12 and held incommunicado from his lawyers until September 19, despite both his and his lawyers' repeated requests for access to each other. During that time, he was repeatedly interrogated despite his requests to speak with counsel." The Internet abounds with similar stories of people being detained without charge for months.
Though permitted under the1996 anti-terrorism laws, the use of secret evidence was declared many times to be in violation of the Constitution. In 2000, the Secret Evidence Repeal Act (H.R. 2121) was signed by 100 congressmen, but the events of September 11th 2001 brought its enactment to a sudden halt. Secret evidence is a violation of the Sixth Amendment right to confront your accuser. One US District Court judge wrote: "The INS reliance on secret evidence raises serious issues about the integrity of the adversarial process, the impossibility of self-defence against undisclosed charges, and the reliability of governmental processes initiated and prosecuted in darkness."
The Sixth Amendment also entitles an accused person to have a lawyer assigned to them, but not under the USA Patriot Act. Detained immigrants are not entitled to such a right, they have to find and hire their own counsel. A lawsuit has already been brought by the Center for National Security Studies (CNSS) against the Department of Justice (DOJ) because the right to counsel of immigrants is already being violated. Reports have emerged of detainees requesting and being denied access to counsel. In addition, a period of indefinite detention may begin when the suspect is charged with ANY crime, a crime that has nothing to do with terrorism at all. A crime such as a minor visa violation that would not otherwise result in detention at all. Indeed, the CNSS claims that the DOJ gave them a list of over 700 unnamed detainees, only five of whom were being held on terrorism charges.
How long will it be before this right is abandoned for all US citizens and not just its immigrants? Listening to people like John Ashcroft whose tirade before Congress on December 6th 2001, in which he equated civil liberties with aid to terrorists and declared that any public debate would "give ammunition to America's enemies," does nothing to assuage one's fears?
The latest example of US totalitarian thought comes from The New York Times which reported that the Bush Administration was considering new rules that would allow al-Qaeda and Taliban prisoners to be tried by military tribunals without specific evidence that they had participated in war crimes. The New York Times reported that American officials might adopt a new legal doctrine that would make it an offence to have been a senior member or officer of any al-Qaeda unit involved in war crimes, rather than requiring documentary or witness evidence that a particular individual had personally committed war crimes. The lame excuse for this atrocity was that the Administration had been forced to consider the new approach because interrogators and interpreters had failed to extract confessions from terror suspects being held at the makeshift prison camp at the US base in Guantanamo Bay.
Under the US Constitution such ex post facto laws are not normally allowed. I suppose that someone will find a way to justify it, at least to themselves. In spite of considerable criticism from human rights groups, the US Government is still adamant that US courts shall not have oversight of the Guantanamo detainees, a group which includes five Britons. In response to a petition filed by the families of two British citizens, Shafiq Rasul and Asif Iqbal, part of the so-called Tipton Taliban, the Justice Department claimed that the executive branch had broad powers in wartime.
There is much more to be found in the USA Patriot Act that is abhorrent, but a short article such as this cannot possibly cover completely the extent and ramifications of its liberty destroying character.
Samuel Johnson had it right when he said that patriotism is the last refuge of a scoundrel. It is indeed.
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