Signed into law a few weeks after Sept. 11, the Patriot Act was only the first in a string of legislation that, in the past two years, has drastically altered our notion of privacy and Constitutional rights. If, since the bill's signing on Oct. 27, 2001, Attorney General John Ashcroft had adequately responded to concerns that it violates civil liberties and basic human rights, the initial language of the Patriot Act could be written off as a retaliatory, knee-jerk response by a justice system that felt impotent in the face of an attack.
But instead, Ashcroft has taken things further, drafting a Patriot Act follow-up that verges on surreal.
This week Ashcroft finished up a 16-city tour to garner support for the legislation with a stop in Manhattan. The stated goal of the tour was to dispel Patriot Act myths, but the public and, at some points print journalists, weren't allowed anywhere near the guy.
As Ashcroft's tour winds down, more than 150 towns and cities have passed resolutions against the Patriot Act. The San Diego City Council is expected to consider passing one this fall.
We've taken a look at the Patriot Act and some of its offspring, understanding both the importance of national security but also the necessity of a trustworthy, as-transparent-as-possible government.
USA PATRIOT Act
Acronym for: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.
History: The act flew through Congress seven weeks after Sept. 11. Some lawmakers later admitted that they didn't have the time to read the full text of the act-342 pages-before voting on it. Now many of them are angry and trying to chip away at the law's provisions-as The Nation reported last week, the House of Representatives is generating support for a bill that would keep library and bookstore records private.
The public, too, was caught by surprise; all discussion of the bill took place in closed session.
Critics point out that prior to Sept. 11, Ashcroft had been pushing for legislation that would ease judicial oversight "search and surveillance" procedures. Carole Kennedy, San Diego State University professor of political science, says the speed at which the act was drafted "suggests that the provisions... were on the Attorney General's planning board long before 9/11.... They were simply waiting for the right time to spring it on the American people."
What it's all about: Patriot Act supporters say it builds on laws already in existence, updating them to jibe with our modern world-for example, allowing a phone-tap warrant to apply to all a suspect's phone lines whereas previously individual warrants were needed for each line. Ashcroft's stated impetus for the Patriot Act was to facilitate communication between local, state and federal intelligence and law enforcement agencies. But as legal commentator David Cole pointed out in The Nation, "the ‘walls' between agencies were cultural and bureaucratic, not legal, and the Administration did not need the Patriot Act to bring them down."
The Justice Department's new website, www.lifeandliberty.gov, claims that the Patriot Act has, so far, protected "innocent Americans from the deadly plans of terrorists dedicated to destroying America and our way of life." Whether this is indeed true, we'll likely never know. According to a report by OMB Watch-a Washington D.C. public-interest group that keeps an eye on the White House Office of Management and Budget-James Sensenbrenner, chairman of the House Judiciary Committee, says that because law-enforcement activity under Patriot Act jurisdiction has been kept secret, it's impossible for Congress to evaluate the bill's effectiveness.
On July 30, the ACLU filed in a Michigan court the first lawsuit against the Patriot Act on behalf of several Arab-American and Muslim groups. Says San Diego ACLU spokesperson Dale Kelly Bankhead: "There is absolutely no evidence that any of [the Patriot Act's] invasions of privacy would have prevented the attacks on Sept. 11. What was needed was better intelligence and coordination within law enforcement, not a trampling of the rights that are the basis of the American way of life."
What's scary about it: Despite the act's emphatic condemnation of racial profiling, Middle Eastern and Hispanic male immigrants, both legal and not, have been disproportionately investigated and detained for anything from a misdemeanor crime to INS error. A precise number of post-9/11 detainees is impossible to determine since the DOJ has fought all requests to report who's been detained and for what reason. The Justice Department says well over 100 people have been convicted of, or pleaded guilty to, some form of terrorist activity.
The Patriot Act also gives law enforcement the authority to pursue unverified reports that an individual or group is engaging in broadly defined "terrorist behavior." OMB Watch detailed a number of cases where innocent people were unduly targeted for investigation. A Chinese-American college student got a visit from police after discussing videogame strategies over the phone. In San Francisco, a retiree was confronted by the FBI after he called George Bush an "asshole" during a discussion with some friends at a membership-only gym.
The Patriot Act also created a new definition of "domestic terrorism." A domestic terrorist is a person who, within the U.S., engages in activity that endangers human life and is a violation of U.S. criminal laws, and "appear[s] to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination or kidnapping."
"This over-broad terrorism definition," says an ACLU report, "would sweep in people who engage in acts of political protest if those acts were dangerous to human life. People associated with organizations such as Operation Rescue and the Environmental Liberation Front, and the World Trade Organization protesters, have engaged in activities that could subject them to prosecution as terrorists.
"The ACLU," the report continues, "does not oppose the criminal prosecution of people who commit acts of civil disobedience if those acts result in property damage or place people in danger. That type of behavior is already illegal and perpetrators of these crimes can be prosecuted and subjected to serious penalties. However, such crimes often are not ‘terrorism.' The legislative response to terrorism should not turn ordinary citizens into terrorists."
What you should know about the Patriot Act: In all likelihood, the feds won't come knocking at your door. The number of American citizens who've found themselves targets of the Patriot Act is tiny (we assume) in the scheme of things. What civil libertarians point to, however, is the law's potential for abuse and its defiance of transparency that keeps government activity in check: engage the wrong combination of activities-protest too loudly in public, check out the wrong books at the library, associate with the wrong people-and you could be the subject of investigation and never even know about it. One provision of the law allows what's been dubbed a "sneak and peek," which gives law enforcement the right to enter your home without your knowledge or permission. A warrant is necessary, but you'd have no right to ever see it.
This provision, says Kennedy, "is clearly a violation of Fourth Amendment protections from illegal search and seizure. Before Patriot, the only way that a search warrant could be obtained was with demonstrable probable cause, not just the Justice Department's word, and the warrant had to be served on the person and the premises and the search conducted with the knowledge of the suspect."
Once known as: Total Information Awareness, until its creators realized the name was upsetting a lot of people. It's now known as the Terrorism Information Awareness project.
Status: Set to roll out this year, the Senate last week took the first step to halt spending on the project. Retired Admiral John Poindexter, who headed up the agency responsible for developing the program, has resigned.
What you should know about it: TIA is the brainchild of DARPA (the Pentagon's Defense Advanced Research Project Agency). TIA is just one of DARPA's many ambitious projects-the agency's also right now studying the brain functions of hibernating Arctic ground squirrels to determine how to keep soldiers awake for an entire week.
The goal of the TIA project is to develop computer systems that have the ability to sort through stacks of information, both private and public-medical records, financial information, travel records, consumer purchases-and look for patterns that could indicate potential terrorist activity. DARPA's TIA FAQ sheet insists that "TIA is not an attempt... to track the everyday activities of American citizens." And a DARPA report to Congress earlier this year stated that "privacy and civil liberties of Americans" are "bedrock" principles in TIA's development.
What's really the issue: DARPA's report to Congress puts TIA's 2003-05 budget at $53 million. Critics say it's money wasted-as one data-mining expert told Wired magazine, terrorism is adaptive and if there's further planned attacks, it's unlikely there will be the same data trail as the Sept. 11 attacks. Also, there's high potential for false positives resulting from misspelled names, incorrect addresses and other (usually human) errors stemming from the source of the data-in other words, how often are your own financial records, bills and receipts correct and accurate? Since it's yet to be fully implemented and might meet its end in Congress, for now, TIA is mostly about misspent tax dollars.
Or you can call it: Computer Assisted Passenger Pre-screening System
What it's about: CAPPS II is a revision to the Transportation Security Administration's original CAPPS program, the goal of which was to make sure suspected terrorists don't board planes.
CAPPS II takes the usual passenger information-name, date-of-birth, address and phone number-and cross checks that information against a commercial database to confirm a passenger's identity. The passenger information is also run through national security databases to determine potential threats. Passengers are then color-coded: green, yellow or red.
What's not to like about it: Under CAPPS I, last August peace activists Jan Adams and Rebecca Gordon, journalists with San Francisco's anti-war War Times, were somehow tagged "no fly." Airport police were as confused as the women but allowed the two to board their plane to Boston, but only after repeated security checks. The same thing happened on the return trip.
CAPPS II is still in the public comments phase of development and TSA recently responded to concerns that the commercial data providers they contract with will retain passenger information for their own databases (TSA promises this won't happen). The Administration's also repealed plans to check passenger data against credit reports or medical records. Still, there are questions about the commercial data providers that TSA has relationships with. Georgia-based ChoicePoint was recently found to have been collecting data on citizens from 10 Latin American countries, Mexico included, and handing that information over to the U.S. government, which then used it to track and arrest immigrants. When the Mexican government found out that ChoicePoint had somehow obtained that country's federal voter rolls, ChoicePoint voluntarily deleted that information from its hard drives.
Enhancement Act (DSEA)
But you can call it: Patriot Act II, Victory Act, Son of Patriot Act
History: Feb. 7 of this year, Charles Lewis, head of the Center for Public Integrity secretly received a 120-page draft of DSEA, dated Jan. 9, 2003. He called members of the Senate Judiciary Committee; they'd never heard of the draft. He put in a call to the Justice Department, a spokesperson claimed to have no knowledge of it. When Lewis went public with his find, Ashcroft's DOJ's communications director said neither Ashcroft nor the White House had seen the draft. A memo later obtained by PBS reporter Bill Moyers suggested that Vice President Dick Cheney and Speaker of the House Dennis Hastert had each been sent copies of the bill Jan. 10.
During the past seven months, DSEA has lingered, likely due to public criticism of the draft. Some say that while the bill, as a whole, likely won't hit the Congress, bits of it will be broken off and attached to other pieces of legislation, such as Sen. Orrin Hatch's Victory (Vital Interdiction of Criminal Terrorist Organizations) Act, which creates a new type of terrorism, "narcoterrorism." The Act is intended to target large-scale drug dealers, but small-time buyers and sellers can potentially get caught up in the mess if they are-even unknowingly-part of a chain that links back to a terrorist organization.
Be afraid. Be very afraid: "Like most sequels," says the ACLU's Bankhead, "Patriot II is even worse than the original."
DSEA pushes the U.S frighteningly close to a police state-"Ashcroft out of control" was the title of an article earlier this year by Village Voice political commentator Nat Hentoff.
CityBeat took a close look at the full text of the draft legislation and here are some of the more disturbing parts:
* Section 126 of the act states that whereas law enforcement previously needed a court order or federal grand jury subpoena to access consumer credit reports, now any law enforcement officer can obtain a credit report for investigative purposes-and without the consumer's knowledge.
* Section 127 gives the federal government the authority to conduct autopsies on individuals killed in a suspected "offense against the United States" without having to get approval from the victim's next-of-kin.
* Section 201 strengthens the Patriot Act's provision that the federal government isn't obligated to release the name of anyone who's been detained as part of an investigation. The section also responds to recent district courts' attempts to override the attorney general's authority to withhold names. That sort of litigation, the act declares, "requires extensive Department of Justice resources, which would be better spent detecting and incapacitate [sic] terrorists."
* Section 202 erases the Clean Air Act's requirement that private companies dealing with dangerous chemicals provide the Environmental Protection Agency with a "worst case scenario" report describing what might happen should there be a chemical spill. "Such reports are a roadmap for terrorists," DSEA argues. Whereas the reports used to be public information, now they're limited to people who work or live in the potentially affected area. This provision is another stab at the Freedom of Information Act, which, before the Bush Administration, guaranteed certain federal information be handed over to the public upon request.
* Section 301 allows the government to collect DNA samples of suspected-not convicted-terrorists "and other sources." What "other sources" means is not clarified.
* Section 402 makes it an offense for an individual to "appear to" intend to provide "material support" to terrorists (foreign or domestic).
* Section 501 gives the Justice Department the authority to strip an American of citizenship if that person "becomes a member of, or provides material support to, a group that the United States has designated as a ‘terrorist organization,' if that group is engaged in hostilities against the United States." Previously, a U.S. citizen had to declare a wish to relinquish citizenship-under DSEA, someone else will do it for you, whether you like it or not. The tricky part of this provision is the definition of "material support"-there have been many instances where individuals have donated to a cause not knowing that some aspect of that cause has ties to an organization on the government's hit list.