The Patriot Act Is Up For Revote In Congress: An Overview of the Act’s Details and Social Impact, and What We Can Do

(C) Kathryn Smith, February 5^th 2010

Permission is granted to seed and reprint this article all over the web, to email it widely, and to contact journalists who are free to quote it or reprint it.

Just weeks after the September 11^th, 2001 attacks, Bush confronted Congress with the thick Patriot Act bill, saying that anybody in Congress who did not vote for it blind, would be publicly dubbed as “soft on terror”. The traumatized and strong-armed Congress passed it without debate in a matter of days. Senator Russ Feingold stood as the lone Senator to “Just Say No”, while 2/3 of the House passed it, with only 1/3 voting “No”. On the second time around, very few additional Congresspersons had the courage to join the “no” ranks, though a few of them did.

According to an email from the ACLU dated on February 4th, 2010, the Patriot Act is now up for renewal in Congress as certain provisions are set to expire this February. And as is typical, Congress is once again being fear-mongered into voting for it, along with what the ACLU says is even more freedom-curtailing provisions than before.

The Center for Constitutional Rights reports :

www.ccrjustice.org/…/ccr-wins-great-victory:-key-provision-patriot-act-ruled-unconstitutional -

“A district court judge declared an important provision of the USA Patriot Act unconstitutional because it is so vague that it “could be construed to include unequivocally pure speech and advocacy protected by the First Amendment.” The ruling is the first such ruling on the USA Patriot Act. January 27, 2004 – CCR announced yesterday that a federal court in Los Angeles has declared unconstitutional a provision of the USA Patriot Act, enacted six weeks after the terrorist attacks of September 11, 2001. This is the first judicial ruling in the country declaring part of the Patriot Act unconstitutional. In a decision issued late Friday, U.S. District Judge Audrey Collins ruled that a ban on providing “expert advice and assistance” to terrorist groups violates the First and Fifth Amendments to the Constitution because it is so vague that it “could be construed to include unequivocally pure speech and advocacy protected by the First Amendment.” David Cole, a professor at Georgetown University Law Center and a CCR cooperating attorney, said, “This decision calls into question the government’s reliance on overbroad laws imposing guilt by association in the war on terrorism. Our clients sought only to support lawful and nonviolent activity, yet the Patriot Act provision draws no distinction whatsoever between expert advice in human rights, designed to deter violence, and expert advice on how to build a bomb. We think the Constitution demands that the law recognize the difference between furthering human rights and furthering violence.”

The common assumption, of course, is that it is solely terrorists who are being targeted in the ban on “expert advice and assistance”. At first glance, the layperson might even believe so when studying the text of the bill, more than 160 pages thick. There is of course a problem with that assumption too: If alleged terrorists have no right to legal counsel or advocacy, then there is no fair trial or adequate burden of proof. This opens up the door to potential abuse.

Further, human rights experts agree with resounding unanimity that the “over-broad” definition of terrorism in the Patriot Act is written in such a way as to be applied to activists or vocal people, and is designed to crack down on free speech. This analysis is echoed on the ACLU’s website, by Marjorie Cohn as President of the National Lawyers Guild, former Deputy US Attorney General and human rights attorney Bruce Fein, the National Rifle Association, and more groups representing both sides of the aisle. In fact, more than 12 organizations have joined the ACLU‘s fight against the Patriot Act, and retired FBI agent Ted Gunderson is very vocal about it, calling it “a giant step toward a police state.”

It is understandable, in a once-free America, that the reader would react with disbelief and dismiss such a statement with wave of the hand and an incredulous “bah humbug”. But before we make any assumptions, let’s look at the statistics: Who has been targeted and spied on as “terrorists” by the FBI since the Patriot Act was passed?

A picture is worth a thousand words. Here is an actual declassified FBI document, downloaded from the ACLU’s website (where numerous such documents are posted for public viewing). It contains the FBI’s official seal, is written to the U.S. Department of Justice, titled “International Terrorism Matters” and is an investigation of the Thomas Merton Peace Center in Philadelphia, Pennsylvania on account of their organizing a non-violent peace rally. “This document contains neither the opinions nor the recommendations of the FBI. It is for your use (US Dept of Justice) & any action deemed appropriate”. Any action deemed appropriate, by the U.S. Department of Justice? For punishing protected free speech? See the document here: http://www.aclu.org/pdfs/tmcterrorismmemo.pdf

This is far from an exceptional occurrence. Greenpeace, People for the Ethical Treatment of Animals, Food Not Bombs, The National Lawyers Guild, the ACLU, the Quaker anti-war group American Friends Service Committee, Codepink, religious groups, peace groups, environmental groups all appear on the FBI‘s spylist. The ACLU documents a list about one mile long of these and other organizations who they are defending against FBI spying: www.aclu.org/cpredirect/18706

In addition to all the many organizations and individuals listed on the ACLU’s client list above, there are many more similar stories appearing from highly credible sources. The University of California, Berkeley students against the Iraq War testified publicly in an ACLU townhall meeting that they have been tracked by surveillance cameras, and repeatedly queried by police and FBI about speakers on campus. Many of the students chose to pipe down out of fear of being a blacklist, while others said “we have to be courageous and keep speaking up”. Newspaper reports came from the University of Santa Cruz, California that students sitting peacefully underneath trees in anti-war protest, were arrested. On Opednews, it was reported that Food Not Bombs kitchen workers were gun pointed and ordered to lie down on the floor for three hours, while the police raided their kitchen for non-existent evidence of their “terrorist” work of feeding the homeless. They confiscated kitchen knives to “prove” it. Note that Food Not Bombs is one of the ACLU’s clients.

http://www.aclu.org/national-security/documents-obtained-aclu-expose-fbi-and-police-targeting-political-groups

“Since when did feeding the homeless become a terrorist activity?” asked ACLU Associate Legal Director Ann Beeson. “When the FBI and local law enforcement target groups like Food Not Bombs under the guise of fighting terrorism, many Americans who oppose government policies will be discouraged from speaking out and exercising their rights.”

It is not only activist organizations who are being inappropriately queried and, in polite Federal speak, “Studied” by the FBI:

http://www.rightsmatter.org/multimedia/ The ACLU of Massachusetts posts specific examples not of groups, but of individuals who are affected by the Patriot Act and Military Commissions Act. Imagine…bird watchers and do-good-ers not partaking in protests or any political activity, being queried as “terrorists” by the FBI, on a repeated basis? Imagine…being shackled and jailed for purely racial reasons? Imagine…the FBI calling you at your workplace because of a contribution you made to an entity falsely dubbed as a “terrorist” organization?

http://www.opednews.com/articles/OEN-Condemns-Police-Action-by-OpEdNews-Editorial-080903-316.html Opednews has received more than a few reports, both photographic and verbal, of police entering homes and arresting/raiding where people are peaceably assembled in their own private residences. More above.

Why all this abuse by the FBI and police? What do any of the above groups and individuals have to do with terrorism? The answer is, that they don’t. What the pattern very clearly is, however, is that all of the groups and individuals above stand in the way of war and oil profiteering, with their vocal activism. None of them are violent activists. In particular, the Quaker American Friends Service Committee actually teaches that “we love and forgive our enemies”. And as you read on the Center for Constitutional Right’s statement above, their clients are universally peaceful people. The ACLU echoes continually, all over their very extensive website.

In fact, such police and FBI “abuse” is in reality a fulfillment of the unconstitutional law. The Patriot Act removed the requirement for court warrant, undermining the judiciary’s power as a check and balance against government abuse, while handing FBI and police agents unilateral powers never allowed by our Constitution previously. Law professor Stephen Schulhofer wrote in the book Liberty Under Attack, that given the new unilateral powers of the FBI to arrest people at their whim, break into our homes, seize property such as computers, and to dub people as “terrorists” under the Patriot Act’s over-broad definition, that the agent is merely “self-certifying that he is acting in good faith”. There is no Congressional oversight required, no court oversight, and this assures power and secrecy. No wonder the number of National Security Letters (NSL’s, or FBI terrorist subpoenas) skyrocketed from approximately six per year, to a staggering 183,000 in the three-year period alone between 2003-2005, reported the ACLU. Of these, the organization reported that 53% of the “Terrorist” summons were for Americans.

Even more secretive and of concern are the gag orders in the National Security Letters portion of the Patriot Act, section 215. Here is how it works:

An FBI agent, of his own unilateral volition, decides that someone-or-other is a “terrorist” and subpoenas either that person directly, their librarian or their doctor for medical and book records. Gag orders are enforced: If the doctor tells even his or her partner that s/he was summoned, then s/he would spend six years in jail for disclosing. What a stress to live with! Further, even attorneys are gagged. They can talk to the judge, but to nobody else. No wonder the public doesn’t know about these true events, because even Congress and the Press are guaranteed not to know, given the gags! The true story of one librarian who was thus secretly summoned, who complied with the unconstitutional gag but found a way around it, tells his true story in an anonymous letter to the editor in the Washington Post, titled My National Security Letter Gag Order, and it is highly recommended reading: www.voxverax.blogspot.com/…/my-national-security-letter-gag-order.html

While the ACLU succeeded in getting the warrantless surveillance struck down by the federal court on August 17^th of 2004, unfortunately the Act was amended in such a way as to uphold the gag and make it more oppressive, they wrote. A 2009 court ruling also upheld the gag. The ACLU states:

rawstory.com/…/judge-rules-fbi-continue-gag-recipient-national-security-letter/

“We’re deeply disappointed that the court ruled that the FBI can continue to gag our John Doe client, who has been silenced for more than five years,” Melissa Goodman, staff attorney with the ACLU National Security Project, said in a release. “This gag – which we continue to believe is unnecessary and unconstitutional – has prohibited Doe from participating in the public debate about the Patriot Act and has been used to suppress key information about the FBI’s misuse of NSLs. The FBI’s overuse of the NSL gag power has allowed the FBI to manipulate the surveillance debate and to deprive Congress and the public of crucial information that would inform the ongoing congressional debate about this intrusive surveillance power.” By Raw Story Tuesday, October 20th, 2009 — 7:01 pm

But isn’t surveillance and warrantless police power the best way to keep us safe? Such is the concern of many Americans, as well as the argument of those who drafted and strong-armed Congress into passing the Patriot Act. It is important to address these questions. Presumably, the dynamics are shared between warrantless wiretapping and surveillance, each alike. Concerning surveillance without warrant, the ACLU of Northern California reports:

http:www.aclunc.org/issues/technology/say_no_to_video_surveillance/shtml

“A British study of surveillance cameras showed that the cameras focus disproportionately on people of color, women, and those who act or look “slightly different”. One in 10 women were monitored entirely for voyeuristic reasons. From Scotland to Sydney, studies have shown that the installation of video cameras does not prevent crime. The crime simply moves from where the cameras are, to where they aren’t”.

Perhaps Paul Revere the younger’s words sum it up well: “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants, it is the creed of slaves”.

Necessity is what convinces us that an oppressive rule is protective. Yet it is that very “protection” which ends up clamping down on Us, the People. Check out this ACLU statement here, linking yet another FBI document, which shows two differing points of view. The linked FBI document, specifically asking police to spy on and arrest protestors, states the “necessity” (probably a real concern, in this case) that while most protests are peaceful and organized, some activists might be inclined to become violent during protests. Yet, the same FBI document also states that protestors might be inclined to videotape police brutality using cell phone cameras, posting them to the web as an “intimidation tactic”. Rightfully so, ACLU director Anthony Romero states that

“It is troubling that the FBI is advocating spying on peaceful protesters, but even protesters who engage in civil disobedience or other disruptive acts should not be treated like potential terrorists,”. In fact, the Joint Terrorism Task Force has been assigned the duty of spying on activists. The FBI document is linked here: http://www.aclu.org/national-security/aclu-slams-classified-fbi-memorandum-directing-law-enforcement-engage-protest-supp

Check out the ACLU’s client list link above, and the pattern of FBI spying becomes clear. Anybody who is opposed to war and oil profiteering, or who objects to violation of free speech and other basic constitutional rights (and stands in the way of absolute police/FBI powers), is subject to spying and arrest, without warrant or probable cause. Could it be corporate profiteering motives, that gave rise to gag orders and arrest powers without warrant or probable cause, in the first place? You decide. Consider also the strong-arming of Congress to pass the Patriot Act into law, and the circumstances under which it was passed.

Sound like Red China? At least a little bit?

What about the police brutality documented on Opednews with eyewitness photos, during the Republican National Committee’s Convention? Photos showed protestors with open wounds, bleeding heads by those who were clubbed with police batons, one man in his teens dragged down the streets with scratches all over his body, and stories of excessive police tasering of peaceful activists. What of journalist Amy Goodman’s arrest during that Convention? She clearly identified herself, saying “I am press”, yet she was arrested on account of (along with her camera person) videotaping and reporting the violent protesting. In fact, the best thing a journalist can do to stop such inappropriate violence from protestors is to give it embarrassing news coverage. But the police, acting under orders from the FBI, did not consider that. Neither did they consider that Opednews editor Cheryl Biren-Wright was giving similar news coverage, when she too identified herself as “press” and was herself also arrested. Is there a pattern of arresting full-disclosure journalists, and is this a deliberate clamp-down on free speech? You decide. (I have my own opinions about this).

The Patriot Act also grants “basket warrants which are not warrants at all” for telecom and FBI spying on American communications, according to the ACLU. The gag orders, warrantless arrests without probable cause, and sneak and peek previews of our library records, all should give Americans pause for concern.

The argument for such unchecked police and FBI powers is, typically, one of “Safety” for Americans in a time when many people are afraid of terrorist activity. To have to take the time to obtain a court warrant may give a terrorist too much time to do mischief, it could be argued.

But with all the nuclear bombs in America’s possession (we in fact own more weapons of mass destruction than almost any country world-wide), and all of our airplane-intercepting technology, what need we fear? Last but not least, is the Patriot Act protecting us, or is it actually endangering us?

You be the judge. You are your own best expert.

The interesting thing is that literally dozens of organizations from the conservative and liberal cross-sectors alike, are unanimous in their concerns about the Patriot Act, as well as in the specifics thereof.

WHAT WE CAN DO:

The Patriot Act is up for renewal at this moment in Congress. Please call your Senators and Representatives and weigh in with your well-informed opinion. Please also make a point of checking your Senator and Representative’ s voting record in regard to the Patriot Act, and weigh in with your opinion about it. Al Gore has stated that Congresspeople sometimes bemoan the lack of public participation in the Democratic process, because to have many signatures to wave on the Congressional floor, is to back their position. Do go ahead and call in.

One voice alone will not make the difference, but the voices of the millions will. That is why it is of utmost importance to spread information all over the web, contact your grassroots leaders, and to do chain emails. Be the change you want to be: Go ahead and call!

You can also ask your local city officials and County supervisors to pass resolutions against the Patriot Act: http://www.reformthepatriotact.org/resolutions.html

Letters to the editor can be a very effective way of reaching the public, stimulating thought and questioning. It is best not to “be positional” but instead, to offer facts and ask questions, then let people come to their own conclusions. Identify and rebut assumptions in peoples’ minds, such as but not limited to: “Just let them wiretap me, I have got nothing to hide”, etc. Letters to the editor are read by Congresspeople as indicators of public opinion, and can help to shape public opinion. College and local newsletter editors are likely to print less-conventional material, but in my experience the mainstream has been pretty good about it too, despite beliefs to the contrary.

You can (immediately) contact your favored grassroots organization leaders, showing them the links in this article and asking them to circulate email petitions.

Meeting with the police may be an effective strategy, to brief them in to who is being clamped down on as “terrorists” by the FBI. It is perhaps unfair to assume that all police persons are power-hungry and unkind people. That is a stereotype in our heads, as unkind as discrimination itself. In fact, you should see the faces fall when I have talked with police men and women about who is being targeted as “terrorists” by the FBI under the Patriot Act.

Permission is granted to seed this article freely all over the web. And please send out chain emails. People need to be informed and given the chance to weigh in.

Thank you for your time and for fighting for your country—- with your pen and your concerned voice—the peaceful and rightful way!

Kathryn Smith is a civil liberties advocate who formerly served on the ACLU Board in her county in California.

Tags: aclu, congress, Constitution, house, patriot act