Clear Day

Repeal the USA Patriot Act

by Jennifer Van Bergen

t r u t h o u t | April 1, 2002

This is the first in a six-part series of articles on the USA Patriot Act: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism."

This Act, passed in response to the September 11th, 2001 terrorist attacks on our country, was passed hastily and in a time of fear. It affects all of us in some very basic and important ways.

Part I of this series states briefly why we should demand the immediate repeal or amendment of the USA Patriot Act.

Part II walks the reader back in time to look at two acts, which were also passed hastily and in a time of fear. The Alien & Sedition Acts of 1798 parallel the USA Patriot Act in many respects, and offer some important warnings.

Part III discusses the recent emergence of troubling evidence of violations of civil rights under the USA Patriot Act, and looks at the disturbing possibility of torture being used.

Parts IV and V look at specific sections of the Act. Part IV covers how the Act mixes criminal law and foreign intelligence work, puts the CIA back in the business of spying on Americans, allows law enforcement to enter your home without you knowing it, and can track your emails and internet activity. Part V will discuss how the Act punishes some people for engaging in innocent First Amendment associational activity, violates other civil rights of immigrants, uses secret evidence, curbs judicial oversight, and invades financial and student records.

Part VI discusses national security concerns, sums up, and closes with a potent exhortation to Americans, made over 200 years ago by Senator Edward Livingston.

Part I: This Law is Dangerous

The USA Patriot Act is an insult to Americans. The name, itself, is insulting, given what the Act contains and what it will someday be known for: its complete abdication of democratic law and principles. It should be called the Constitution Shredding Act.

In particular, it utterly relinquishes any semblance of due process, violates the First, Fourth, Fifth, Sixth and Eighth Amendments, and unacceptably mixes aspects of criminal investigations with aspects of immigration and foreign intelligence laws.

Let me state it even more bluntly. This law is dangerous. It's a travesty.

What is worse is that few Americans have the slightest idea what this law contains or what it means.

Why is this? Because, the USA Patriot Act has several clever catches in it that have enabled it to slip by the awareness of the average law-abiding citizen. First, it relates mostly to foreign nationals. (So it can't affect U.S. citizens, right? Wrong.) Second, it deals with terrorism. (And we're not terrorists, are we? Don't be so sure.)

If you think this law applies only to the bad guys who attacked our nation, think again. Many provisions in this law apply to and will affect Americans, in many, bad ways.

What is more frightening about it is that, despite the fact that the USA Patriot Act was passed hastily without any debate or hearings and under a cloak of fear, its provisions were obviously very carefully thought out and crafted to take power out of the hands of courts and ensure absolute lack of oversight of law enforcement and intelligence gathering.

There is no way that the USA Patriot Act came into existence solely in response to September 11th. In fact, it is clear from prior legislative and case history that law enforcement and intelligence have been trying for many years to obtain these powers. It is only the unreasoning "bunker mentality" that followed September 11th that allowed its planners to pass it.

Indeed, one might question whether Congress could sincerely have intended this Act, given that portions of it are re-enactments of the 1996 anti-terrorism laws which had been repeatedly ruled unconstitutional by federal courts. One must wonder whether congress- persons were in their right minds. If they were not, this law cannot be valid.

Most troubling is that most of these powers do little to increase the ability of law enforcement or intelligence to bring terrorists to justice ... but, they do much to undermine the Constitution and violate the rights of both immigrants and American citizens alike.

Another reason why Americans do not yet know what a terrifying weapon has been put in their government's hand is that the Act is extremely nuanced and amends numerous other laws.

One provision, for example, merely amends the words of an earlier act, which had read "the purpose," to read "a significant purpose." What difference could that tiny change make? It opens the door for the FBI to evade the probable cause warrant requirement in criminal investigations whenever the FBI decides the information might have "a significant purpose" in an intelligence investigation. No court can intervene.

In other words, the legal protection that a court must determine that there is probable cause of criminal activity before a search or seizure can be made is totally discarded here. If the FBI thinks the information might contribute to an investigation, whatever the target's activity might be, legal or not, the FBI can simply go search and seize. (And under the new "sneak and peek" provisions, they can do so without you ever knowing it.)

Notice also that this clause mixes foreign intelligence gathering with domestic criminal investigation, allowing the FBI to spy on Americans whom no court has determined have done anything wrong.

Finally, this information, under another provision of the Act, can now be shared with the CIA, in violation of its charter, which bars it from engaging in domestic spying.

As the ACLU analysis of this section states, this simple little clause is being used "as an end-run around the Fourth Amendment." It is a "power grab [that] will sweep in Americans" as well as aliens.

It behooves us to take a good, solid look at the USA Patriot Act, so we can tell our representatives what we think of it.

Tomorrow, we will take a walk back in time to look at two acts that were also enacted hastily in a time of fear. The Alien and Sedition Acts of 1798 parallel the USA Patriot Act in several respects and offer some important warnings.

Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter.

Jennifer Van Bergen is an Editor and a regular contributor to t r u t h o u t.