The Usa Patriot Act: One Year Later Part I by C. William Michaels and Jennifer Van Bergen t r u t h o u t | Report
The Usa Patriot Act: One Year Later Part I by C. William Michaels and Jennifer Van Bergen t r u t h o u t | Report
Thursday, 14 November, 2002
On October 26 America observed a dubious anniversary--one year from the
signing by President George W. Bush of the USA PATRIOT Act. The year has been an
eventful one for all those concerned about the direction of the country and
about civil liberties. Unfortunately, it also has a been a year when those who
have followed developments since the PATRIOT Act have seen the formation of
trends which, left unchecked, may fulfill the most dire predictions of those who
have taken a long look at this comprehensive statute.
Among those predictions are the relative absence of judicial review of
the Act, the bold movement by federal investigative and law enforcement agencies
to utilize the substantial powers granted to them by the Act, the distraction of
Congress on other matters muting Congressional oversight of these governmental
agencies activities, and the complacency of large segments of the American
public. The combination does not bode well for civil liberties or the national
direction, especially given that the vast majority of the PATRIOT Act is
permanent.
A Review of the Act and Themes
The USA PATRIOT Act stands for "Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." It
was enacted by Congress virtually without significant debate, without detailed
committee reports, without a conference committee, and with little floor
commentary. Submitted just several days after the September 11 (2001) attacks,
it was rushed through Congress at lightning speed for a statute of its size and
complexity. It passed the House on October 24, 2001 by a vote of 357 to 66, and
passed the Senate the next day, October 25, 2002, by a vote of 98 to 1. It was
signed into law by President Bush the following day, October 26, and is now the
law of the land.
The PATRIOT Act contains more than 150 sections. It is divided into ten
separate Titles and is hundreds of pages long. The powers it grants to federal
investigative agencies are unprecedented and reach everything from voice mail to
consumer reports to banking records. It is highly doubtful that a statute as
extensive as this could have been written from scratch while at the same time
moving through Congress in a mere 45 days. Consider that the Homeland Security
Act, considerably less extensive than the PATRIOT Act, is still bogged down in
Congress after months, in limbo due to wrangling between the White House and the
Senate over certain aspects such as internal structure and employee protections.
The PATRIOT Act received no such attention yet its effects are tremendously more
wide ranging.
Numerous activists groups such as ACLU, Center for Constitutional
Rights, and others, sounded the alarm about the Act soon after it was
introduced. However, the sea change in political climate which occurred
virtually overnight after the September 11 attacks made the Act virtually
unstoppable. Congress was determined to send a message to the terrorists and to
give the White House what it wanted. The real question is what message ultimate
will be sent and to whom. And it has become quite apparent that what the White
House wanted by way of the PATRIOT Act is not necessary to effectively deal with
the causes and incidents of terrorism. In fact, to date, no person has been
arrested in the United States and charged with direct involvement in the
September 11 attacks.
There was little to be done except watch as Congress enacted this
monstrous statute. The American people will now be living with it for years to
come.
Many misconceptions have arisen about the PATRIOT Act: it will sunset
in a few years, the granted only limited authorities to federal agencies, it
deals only with aliens or foreign nationals, and it is restrictive in length and
scope. That is not so. The situation is far worse. Only very selected portions
of the Act will sunset in 2005, the authorities it grants are massive, its reach
conceivably can include every American, and it contains extremely extensive and
detailed provisions.
Of course, since September 11 there have been many other related
developments: the military tribunals, the Office of Homeland Security,
bioterrorism legislation, the new wave of aviation security, the globalization
of the "war on terrorism," dramatic increases in surveillance of the public,
skyrocketing military spending, the war in Afghanistan, and impending war with
Iraq. Discussion of those would take us too far afield for present purposes
since these developments have occurred parallel to but do not arise directly
from the PATRIOT Act.
That does not leave us wanting. There is still plenty to review. The
Act is among the most wide-ranging laws passed by Congress in recent memory,
bringing new federal offices into being, creating new crimes, amending--in many
cases substantially--at least 12 federal statutes, mandating dozens of new
reports and regulations from agencies in four Cabinet Departments, and directly
appropriating $2.6 billion (with more funding to come from approval of various
"authorizations" of unnamed amounts, scattered throughout the statute).
At the outset, it may be worthwhile to list the Act's ten Titles, as a
way of noting its grand scope:
Going through these Titles and their sections, several themes appear
consistently. Among them are: expansion of existing law, information sharing
between federal investigative agencies, greater abilities for federal
investigators to collect and utilize information, vigorous use of existing
definitions of "foreign intelligence" and "terrorism," targeting of aliens as
suspect groups, greatly increased surveillance and prosecutorial powers,
enhanced visibility and responsibility of the entire intelligence community, and
limited judicial review. These themes certainly have marked the use of Act's
powers by federal agencies in the past year.
A Tour Through Act Highlights
It is not possible in this limited space to describe each of the Act's
ten Titles, although just a review of the title names themselves provides a
sense of how extensive the PATRIOT Act is. Unfortunately, most of the attention
paid to the Act in the general media and by most activist groups has been
devoted to Title II and Title VI, which means eight of its Titles have received
relatively little comment. Without getting too involved, a brief tour through
some of the Act's highlights will underscore concerns raised so far and point
out areas that to date have been effectively overlooked:
The Record So Far
With these greatly expanded powers, covering a long list of new
authorities and mandates, federal agencies have been busy. In the Justice
Department, information sharing protocols authorized by the PATRIOT Act were
recently issued by Attorney General John Ashcroft. These protocols make it clear
that the Justice Department will use to the fullest extent, the authorities
granted to it by the Act. Among this information sharing is communication by
Justice Department personnel to intelligence personnel within 30 days on whether
a criminal investigation will be launched based on a given crime report, if the
crime report indicates that foreign intelligence may be involved. New FBI
guidelines on undercover operations have been announced which roll back
permitted FBI activity to a activities of nearly 30 years ago that were the
subject of widespread criticism.
New federal investigative task forces are being created, with Justice
Department in the lead, including identification by the United States Attorney
for each judicial district of members of a terrorist task force which can be
quickly assembled from local federal agency personnel when the need arises.
Also, there are several ongoing cross agency task forces to investigate
terrorism or terrorist financing such as Operation Green Quest.
The Treasury Department has issued tremendously detailed regulations
for Title III's new requirements for banks and other financial institutions.
Title III has effectively rewritten many banking laws and introduced new
requirements to the point that domestic bank are virtual partners with the
federal government in investigating financial aspects of terrorism. Spurred by
PATRIOT Act authority to investigate any forms of money transfer that may be
linked to terrorism, new arrests and detentions have been made by federal agents
of principals of certain targeted charitable groups which send money abroad,
especially to the Middle East, shutting these organizations down under the guise
of investigating terrorism.
The State Department, on its own or through Executive Order, has
identified a whole new list of terrorist groups. Cooperating with the INS, FBI
and in some instances CIA, information sharing has gotten to the point where a
suspected terrorists can be arrested or rounded up by any number of these
agencies. The State Department has cooperated with the INS (in the Justice
Department) to round up thousands of aliens suspected of terrorism, although
most have been either released, given minor charges, deported on visa or other
technical violations. In August, 2002, a federal court (Judge Gladys Kessler)
ruling in favor of various groups who sued the Justice Department and the INS
demanding information on detainees, recently ordered the government to release
the names of the remaining detainees (as many as 150). But the government has
refused to do so citing national security concerns and has sought a stay of the
order pending appeal.
The PATRIOT Act has given not only new authorities but also a new
hubris to federal investigative agencies. Its emphases on information
collection, information sharing, expanded definitions, new regulations,
cross-agency cooperation, wider authorities, enhanced surveillance techniques,
swifter prosecutions, and more severe sentences have brought law enforcement and
terrorism investigation in America to new levels. Unfortunately, Congress,
having handed over such tremendous authorities to the Executive Branch, has
spent little time reviewing what it has wrought. But the PATRIOT Act cannot fade
into the distance. It is very much with us, and its effects have not yet totally
been felt.
Although many watchdog groups and organizations are turning their
attention to other things, we cannot totally turn our backs on these
developments. The second Part of this two part article will take a look at some
emerging trends and note items for special attention in the foreseeable future.
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C. William Michaels is
an attorney and writer in Baltimore, Maryland. His just released book, No
Greater Threat: America After September 11 and the Rise of a National Security
State (Algora Publishing NYC, 2002) contains a review and analysis of the entire
USA PATRIOT Act. The book is available from Barnes & Noble and Amazon.com.
For more about the book and the author, go to http://www.www.nogreaterthreat.com/
Jennifer Van Bergen is a graduate
of Cardozo School of Law in NY and is on the faculty of the New School
University in New York. Her six part article series for "truthout" "Repeat the
PATRIOT Act" in April-June 2002 was one of the first widely distributed and
detailed public commentaries on the statute. She is a columnist for truthout.
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Also see :
The
Usa Patriot Act: One Year Later -- Part I | by C. William Michaels and
Jennifer Van Bergen
The Usa
Patriot Act: One Year Later -- Part II | by C. William Michaels
Free Speech
& G.W. Bush | by Jennifer Van Bergen
Repeal the
USA Patriot Act | by Jennifer Van Bergen