The USA Patriot Act; Kary Love's Presentation On Its Implications
for Civil Liberties.
On Thursday,
March 4, at 7PM, attorney, Kary Love presented a talk on the above
topic that was held at the GVSU Eberhard Center in downtown Grand
Rapids. It was hosted by the Libertarian Party of West Michigan
and there were approximately 30 people in attendance.
Love had given
a presentation, some time ago, to the Freethought Association
of West Michigan on matters of the US's flouting of International
Law in matters of bans and broken treaties regarding nuclear proliferation,
military whistle blowers, and their loss of proper legal representation
and other related matters.
He began by
stating that, as a practicing lawyer, he has worked with the ACLU
on many occasions, but that his statements are his own and he
is not necessarily representing them or their views at this presentation.
To the mostly Libertarian Party audience, he also mentioned that
he himself was a card carrying Libertarian.
He spoke of
the US Constitution as a beautiful document that grants rights
and liberties to its citizens and anything that is intended to
amend it, should grant more, not fewer, rights for its citizens.
Similarly, if an Act is introduced that defies the Constitution
in part or in whole, it is not only in direct violation of the
law of the land, but also undermines the spirit of our country,
founded on principles of freedom. The USA Patriot Act, Love submitted,
was just such a danger to civil liberties and our Constitutional
guarantees.
Attorney General
John Ashcroft via the Bush Administration, had tried to foist
versions of this Act upon our citizenry on several occasions but
it had been rejected by Congress at every turn. Then came the
horrific events of September 11, 2001. The weeks following this
attack on our country by foreign terrorists, when the nation was
still reeling from this heretofore unimaginable assault on our
soil, proved to be highly propitious for gaining passage of the
Patriot Act. Something had to be done, the nation was in turmoil
and grief and looking in desperation to taking some action in
addressing this terrific blow. The Act made it through, therefore,
largely unread and thoroughly unanalyzed, without proper debate,
discussion or hearings on the matter, before coming to a vote.
Amendments
were not permitted and the Bush Administration implied that anyone
who voted against it would be blamed for further attacks. Such
attacks seemed likely and even immanent, especially with the anthrax
scare following so closely on the hells of 9/11. Soon afterwards,
even being critical of the Administration's judgment on various
matters was called “unpatriotic.” This Act, overnight,
made huge revisions to our surveillance laws, vastly expanding
the government's authority to spy on its own citizens while simultaneously
reducing the checks and balances on those powers via judicial
oversight, public accountability and the ability to challenge
(and seek legal remedies to) government searches in court.
Through this
Act, we took major steps toward becoming more like those we opposed.
Suspending our own liberties is not the answer, Love asserted
. Indeed it is those very freedoms that can triumph over terrorism.
Once rights are rolled back, he noted, they are infinitely more
difficult to restore. In fact, it paves the way for ever more
assaults on our personal freedoms. “How far will it go?”
he asked.
The USA Patriot
Act allows for the FBI to access private medical records, library
records, student records, all while preventing the targeted individual
or entity from knowing it was done. The troubling Section 215
also permits the FBI to order any person or entity to turn over
“any tangible things” so long as it is specified that
the order is part of the process of protecting against terrorist
acts. However, since judicial review has been removed and what
constitutes a threat is arbitrary and vaguely written, and there
may be no opportunity for redress of rights violations, it all
devolves into a unchecked system ripe for abuse.
There is no
need, for instance, to show probable cause for spying on ordinary
people in the US (whether permanent residents or native born citizens).
Records can be sought on persons where there is not even any reasonable
grounds to suspect the individual of criminal activity. Citizens
can be investigated partly on their exercise of 1st Amendment
rights and solely on this exercise of rights for non-citizens.
The scope of the investigation can include spying on an individual
because of the literature one reads, the websites one visits,
the groups one is affiliated with, or even writing a letter to
the editor that is critical of government policy!
Once served
with 215 orders, the individual is prohibited from disclosing
this fact to others even when secrecy in the matter is irrelevant,
a violation of First Amendment rights. Those under surveillance
do not have to be notified that their privacy has been compromised
there is no mechanism in place for due process of the law and
no “probable cause” warrant issued, in violation of
the Fourth and Fifth Amendments. There were exceptions in place
to the 4th Amendment but they were for foreign spies, and not
extended until now, to American citizens.
The right
to assemble in protest is also threatened. If violence erupts
during a demonstration then it suddenly becomes a felony under
the designation of domestic terrorism. It only needs to “appear
to be intended to jeopardize government” with this vaguely
written concept left to the discretion of the executive branch.
Additionally,
the Patriot Act amends the Federal Rules of Criminal Procedures
by allowing search and seizure of property, not only without warrants
but also without the owner(s) being present or aware of the activity.
Limitations on the scope of the search are curtailed as well.
The putative reason for the investigation can be regarding a stolen
vehicle, but investigators can rifle through dresser drawers or
other parts of the residence. These “sneak and peak”
procedures go well beyond the boundaries of information gathering
germane to anti-terrorism or foreign intelligence collection.
Furthermore, the government no longer has to show evidence of
the search orders relating to agencies of foreign power, an erstwhile
protection that is now lost. Incredibly, there does not even have
to be any production of evidence for reasonable suspicion given,
let alone probable cause, for records gathered that are supposedly
regarding criminal activity. It has only to be somehow related
to some vague “ongoing terrorist investigation.” With
the War on Terror itself a rather nebulous concept—not regarding
a specific country or leader or geographically fixed agency or
regime, there is no protocol of, or time frame for, what fits
within its vast and amorphous scope of potential targets for investigation.
Judicial oversight
is essentially nonexistent. Currently, the government merely needs
to certify to a judge, without evidence or proof, that a search
meets the broad criteria to launch investigative procedures and
the judge has no authority to even reject the application. The
searches, moreover, can extend far beyond the judge's jurisdiction—in
essence anywhere in the nation-- so the ability for judicial oversight
is even further reduced.
Searches also
now encompass what are called the “trap and trace”
variety, where addressing information is gleaned about the origin
and destination of communications. Wiretaps have expanded in power
granted to governmental authority, to the actual monitoring of
conversations, not just tracing the numbers dialed. One can be
monitored, without notice, as to what websites one visits and
the time when s/he goes to other sites (so that possible links
can be established in the perusal habits of the targeted individual)
to see what sort of interests and behavior the individual shows
and how deeply into the Net one travels in checking on related
Internet links. Via the Patriot Act, the FBI can force anyone,
including doctors, librarians, bookstores, universities and Internet
service providers to turn over records on their clients or customers.
Roving wiretaps are now allowed, where a subject's telephone conversations
can be tracked from place to place. Any activity that leaves a
record can be part of the spying now allowed through these new
unchecked governmental powers.
Love mentioned
FISA, which is the Foreign Intelligence Surveillance Act. This
Act was in place prior to the inception of the Patriot Act and
allowed exceptions to certain rights in the gathering of foreign
intelligence. The rationale was that since the search was not
conducted for the purpose of putting someone on trial, the standards
could be loosened. However, The Patriot Act misappropriates these
exceptions to include domestic investigations of people who may
be subject to going on trial. Intelligence can simply be gathered
for the sake of gathering intelligence, with no specific rationale
behind it. More frightening still, the FISA court found that agents
applying for warrants had regularly filed false and/or misleading
information. More of this “blank check” procedure
involves how an investigator can now be provided with an issued
warrant where s/he can simply fill in the blanks on it as to places
to be searched! This is in direct conflict with Constitutional
amendments as to specificity and time of the search(es) to be
conducted being clearly stated at the time of the warrant being
issued.
When the Bush/
Ashcroft Justice Department was questioned regarding the uses
of newly sanctioned powers, they simply refused to comply or answer
the queries, leaving it with no accountability to Congress or
the public. Disturbingly, the Patriot Act now puts the CIA back
in the business of spying on Americans, without judicial review,
where they can investigate protest groups or organizations of
a nature deemed to be linked to the new crime of “domestic
terrorism.” Even providing lodging to members of some group
alleged to pose a threat, can put the host in jeopardy of surveillance
and/or prosecution.
The Secretary
of State or Attorney General has the power to deport or indefinitely
detain, without legal council or trial, any non-citizen who belongs
to or donates money to one of the broadly defined “domestic
terrorist” groups. The Patriot Act gives the Attorney General
unprecedented new power to determine the fate of immigrants on
“reasonable grounds to believe” they pose a threat
to national security. According to Love, John Ashcroft is proposing
the building of special camps along the lines of the Japanese
Internment Camps of an earlier time, for individuals to be held
on suspicion of doing some terrorist act in the future! Finally,
the Bush/ Ashcroft system has made numerous attempts to expand
powers in seeking the death penalty for those held, in effect
making them the judge jury and executioner for all detainees suspected
of being terrorist threats. The Secretary of State can designate
a group in a way that makes them vulnerable to this process and
there are proposals for the further extension of intelligence
gathering and even secret arrests. In times of greatest national
stress and challenges faced, the potential for the erosion of
rights and freedoms is most vulnerable. But these hard won freedoms
are not expendable and are even more precious at such times. They
cannot be sacrificed on the altar of national security. What are
we keeping safe in the first place, if our democracy is thrown
away?
Our laws are
supposed to provide the guarantee that no one can be held responsible
for a crime unless that person is told what he or she is being
charged with. That Patriot Act strips this fundamental principle
away as well. DNA “fingerprinting” that was to track
foreign activity is now allowable in the tracking of American
citizens who are not necessarily even suspected of a crime. Some
techniques that are not technically funded for the uses they are
pressed into are still available nonetheless, with or without
authorization.
Love claimed
that there were some 5,000 foreigners on a profile list who have
no prior history of criminal activity involvement. There is no
transparency as to the circumstances for one ending up on the
list. The push for the establishment of military tribunals where
no right to appeal, etc. is provided is coupled with the etiolation
of attorney/client privileges and makes for a scary scenario.
Regarding the latter, Kary Love spoke of specific cases where
exchanges between clients and attorneys were recorded and/ or
curtailed and where the lawyer risked being charged with complicity
in future criminal activity. Communications can simply be designated
as falling “outside the scope of legal representation”
without any support for this labeling in this vague determination.
This further weakens the incentive for aggressive defense by a
lawyer representing a client in such circumstances. Even translators
for Arabic speaking individuals risk harsh scrutiny. One acting
as a surrogate for the incarcerated person can be viewed as “aiding
and abetting” the one in custody. Non response to questioning
or when the response is not immediate may be linked to criminal
intent and the charges carried with it, regardless of there being
no preponderance of evidence to support the claims.
Detainees,
held without formal charges or council, can have entire cases
built on hearsay. Any meaningful basis for detainment is deemed
“flexible.”Legal protections that would have been
triggered by disputed facts are gutted. A person can be held out
of concern for some crime the individual may (!) commit if released.
This is a violation of the Principle of Prior Restraint and amounts
to “reading minds.” Another thing stated that gives
one pause is that one can be taken into custody for the reason
of being in a “zone of combat” or in other words being
an innocent in the wrong place at the wrong time. Many of the
items mentioned, are in violation of the writ of habeas corpus,
which requires that an individual is to be brought before a judge
to determine the lawfulness of his detention. Our presenter also
talked about how labor disputes can be termed an “insurrection”
which begins the process of the authority for calling out an armed
service that could be ordered to fire upon the them. A strike
can be regarded a “rebellion” on a governor's say
so. The President, as Commander in Chief, has similar abilities
to call out the National Guard, for instance, to quell perceived
uprisings or unrest.
Much of what
has been recorded here are examples of the antithesis of the principles
of “presumed innocence” and that of extending the
same rights and procedures to the most vile person taken into
US custody as that granted to any other citizen. One is supposed
to have the right to a day in court, no matter the severity of
the charges made against him. Winston Churchill labeled the denial
of a trial before one's peers as “odious.”
Love closed
with comments relating to how hard won and fought for our freedoms
are, and how we must not surrender them voluntarily. Armed with
information, we can better combat the bleeding away of our rights.
As Kary Love said: “We're all going to die-- there's no
getting out of life alive...the question is: do we die a slave
or die free?”
This presentation
summarized by Charles LaRue, Secretary for the Freethought Association
of West Michigan. Neither the summary nor the presentation itself
was officially endorsed or sponsored by FAoWM but is provided
for perusal by the readership of the Freethought Association's
minutes and other written items.
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