In remarks prepared for his testimony before the Senate Judiciary Committee in December 2001, U.S. Attorney General John Ashcroft warned that the United States was under attack by “fanatics who seek to extinguish freedom.”
Then he proposed legislation which can only be described as an attempt to help.
The truly astonishing feature of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (besides its name, designed to create the acronym USA PATRIOT Act, and its length, 342 pages) is how basic are the liberties it attacks.
Due Process
One of those is the due process clause of the U.S. Constitution, which applies to all ‘persons’ within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent.
The USA Patriot Act replaces this with indefinite .secret detention. Section 412 of the Patriot Act allows the Attorney General to detain any non-citizen if the attorney general has non-reviewable “reasonable grounds to believe” that the non-citizen “is engaged in activities that threaten national security” or has committed an immigration violation, such as a failure to report a change of address. Either offense subjects the non-citizen to mandatory detention until s/he is deported or released at the Attorney General’s discretion.
Deportation hearings have been closed, and the names—or the aggregate numbers—of those being detained have not been released.
The Sixth Circuit has recently taken a crack at this and found that the blanket closure of immigrant hearings is unconstitutional. On Aug. 26, in Detroit Free Press v. Ashcroft, the appellate court found that an administrative directive ordering closed hearings for reasons of national security both fails to bolster security and makes drastic inroads on First Amendment rights.
“There seems to be no limit to the Government’s argument,” reads the Sixth Circuit’s Aug. 26 decision. “The Government could use its ‘mosaic intelligence’ argument as a justification to close any public hearing completely and categorically, including criminal proceedings. The Government could operate in virtual secrecy in all matters dealing, even remotely, with ‘national security.’”
Ex Post Facto
A legal concept known as “ex post facto,” which makes a person punishable for conduct not illegal at the time at which it took place, is expressly forbidden by Article I of the U.S. Constitution. However, under the Patriot Act, this archaic tactic seems to be back on the books.
Section 411 of the Patriot Act criminalizes as “engaging in terrorist activity” anyone who at any time solicited funds for or provided material support to any organization which is ultimately designated by the Secretary of State to be a “terrorist organization.” This means that if any group is ever labeled a “terrorist organization,” anyone who ever had any dealings with it must, therefore, also be a terrorist.
In the fall of 2001, the State Department discovered 39 “terrorist organizations” among charities and campaigns that until then had operated freely in the United States. Recently it has found a few more. Anyone who has ever provided “material support” to these groups is now automatically guilty of “engaging in terrorist activity.”
The Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .”
The Fourth Amendment has been seriously eroding for a while, but the USA Patriot Act takes its gutting to a new level. Section 218 of the Act allows surveillance without probable cause for a warrant if the gathering of foreign intelligence information is “a significant purpose” of the operation, even if the investigation is primarily for prosecution of domestic criminal activities. Section 213 of the Act authorizes federal agents to conduct “sneak and peek searches” (covert searches in which nothing is seized but anything may be looked at) without notifying the person of the execution of the search until after it has been completed, or longer if the feds have “reasonable cause to believe that providing immediate notification . . . may have an adverse result.”
Remember the grain of white dust so carefully replaced by the Thought Police in George Orwell’s 1984?
This abbreviated list of the damages leaves out the bizarre provision under which the FBI has a right to secretly subpoena anyone’s reading material; the extension of surveillance under other laws already on the books (such as the Foreign Intelligence Surveillance Act and the special court it created, which has never received a wiretap application it didn’t like); and other actions taken without any legal justification whatsoever, such as declaring American citizens “enemy combatants” and keeping them in detention offshore indefinitely.
Fanatics seeking to extinguish freedom would be proud.
