by Jeffrey Frank
Z magazine, December 2003
For the past few months, Attorney General
John Ashcroft has been on a 19-city tour to convince the public
that the USA Patriot Act (USAPA) is the essential tool in the
war on terrorism and poses no threat to civil liberties.
Ashcroft's offensive on the USAPA comes,
in part, as a response to grassroots efforts by dozens of community
groups, bar associations, and others to educate the U.S. public
on the dangers posed by the USAPA. These grassroots efforts have
resulted in over 160 communities and 3 states adopting resolutions
condemning, in whole or part, the USAPA. Additionally, the Bush
administration has been receiving increased resistance in Congress
to its proposal to eliminate the December 31, 2005 sunset provision
to a number of USAPA sections, as well as outright legislation
to repeal some USAPA provisions, such as the delayed notification
"sneak and peak" searches.
Finally, the early release of a draft
of the Domestic Security Enhancement Act of 2003 (known as Patriot
Act II) raised enough rancor in the public and Congress to scuttle
chances for enactment in whole, although individual provisions
have been introduced and passed by Congress.
The USAPA, which is an acronym for Uniting
and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001, was enacted on
October 24, 2001, a little over a month after the tragedy of September
11 and a couple of weeks after the initiation of the bombing campaign
Congress approved it overwhelmingly with
virtually no debate. It was approved at the height of the anthrax
scare when members of Congress were shut out of their offices
and couldn't study the legislation, even if they wanted to be
critical in a time of hysteria. The sheer bulk of the act, at
342 pages, makes it clear that this was not drafted in a few weeks
after September 11. The USAPA is a compilation of the wish lists
of the FBI, CIA, the Justice Department, and other executive departments,
such as the INS. It includes provisions previously rejected by
Congress as too far reaching when the 1996 anti-terrorism legislation
In attempting to counter the reality of
the USAPA, the Justice Department (DOJ) has distorted or only
told half the story.
DOJ Myth No. 1
The Justice Department claims the USAPA
has been effective in combating terrorism. In an August 25 speech
in Boise, Idaho, Ashcroft made numerous victory claims, including
bringing criminal charges in terror investigations against 255
individuals and deporting 515 individuals with links to the September
REALITY: The vast majority of the 255
arrests were based on pre-USAPA criminal charges, such as credit
card fraud and lying to an FBI agent. The majority of the people
deported never had ties to terrorism as the FBI had cleared them
of any terrorism connection prior to deportation.
Since the Justice Department refuses to tell the public, or for
that matter Congress, how many USAPA warrants, searches, and wire
taps, etc. have been initiated, we are unable to determine how
the USAPA has been used and the results of such usage.
Furthermore, as the FBI admitted after
the September 11 attacks, and as the Congressional 9/11 study
(at least that part we have been allowed to see) confirmed, the
problem was not lack of adequate intelligence, but failure to
communicate internally (ignoring some of the most obvious warning
signs), the lack of trained translators, and the information overload-a
problem very likely to increase with the massive surveillance
powers granted the government by the USAPA.
DOJ Myth No. 2
In a September 9, 2003 speech in New York
City, Ashcroft claimed, without substantiation, "[t]he Patriot
Act gives investigators the ability to fight terror using many
of the court-approved tools that have been used successfully for
many years in drug, fraud and organized crime cases. "
REALITY: This is more than a little disingenuous.
When the FBI seeks to get a warrant to tap the phone of a mobster,
they must present sufficient evidence to a judge that there is
probable cause that a crime is either being or about to be committed.
This probable cause standard is the bedrock of the Fourth Amendment
protection against unreasonable searches and seizures.
Under the USAPA, to get a warrant in a
terrorism investigation to wiretap a phone, monitor email and
Internet usage, search a home or business, or seize documents,
all that needs to be shown is that combating terrorism is a significant
purpose of the surveillance, a standard far below the Fourth Amendment's
probable cause standard.
Furthermore, the warrant under the USAPA
is issued by a secret court not subject to the same rules as other
courts. The secret courts were established by the Foreign Intelligence
Surveillance Act of 1978 (FISA) with the sole purpose of providing
tools to ferret out foreign spies. The USAPA substantially amended
FISA and now allows the same relaxed surveillance rules to be
used against anyone, including United States citizens, in terrorism
investigations that, by their very nature, are broad and virtually
Under the USAPA, applications for certain
warrants submitted to the FISA court can't be turned down as long
as the application is properly completed. Not that the FISA court
has ever turned down a warrant application anyway. From 1978 until
2002 the FISA court never turned down a warrant request. In 2002,
an application for a warrant was rejected when the judge discovered
66 instances of FBI lying in warrant applications. However, the
Justice Department appealed the rejection to the never before-used
FISA Court of Appeals. In a proceeding where no third party was
allowed to submit testimony or briefs, the FISA Court of Appeals
overturned the lower FISA court and issued the warrant.
DOJ Myth No. 3
Ashcroft claims the USAPA seizures, "
sneak and peak " searches, and related powers will not be
used against "ordinary Americans." In a blast against
the American Library Association, Ashcroft defended USAPA Section
215, which allows search of library records and book purchases,
by claiming this power has always been available through grand
jury subpoenas, that the FBI has no interest in or resources to
track citizen's library usage, etc. and that the warrants can't
be used against U.S. citizens solely based on First Amendment
REALITY: Section 215 has been controversial
from the beginning, in large part due to the vigilance of the
American Library Association. Warrants for the seizure of records
under Section 215 are issued by the same FISA court using the
lax surveillance standards discussed above. One of the more insidious
aspects of these records seizure warrants is that the person served,
who is not likely to be the target of the investigation, is not
allowed to inform the target or anyone else- even his or her co-workers
or supervisors-of the existence of the warrant or what materials
were provided to the government.
Ashcroft's claim that the USAPA has warrant
powers already contained in grand jury subpoenas is patently misleading
as a grand jury subpoena is based on probable cause of criminal
activity, while a USAPA warrant is issued by the secret FISA court
based on the lower standard. Further, if federal prosecutors already
have this power, what is the purpose of the USAPA?
The Justice Department belies its own
claim that it doesn't want to investigate library usage. Its website
(www. Iife and liberty. gov) claims that terrorists have frequently
used libraries to plan and carry out activities. However, on September
18, 2003, Ashcroft issued a report saying the powers have never
been used. So why is it needed in the USAPA?
While the USAPA does restrict use of the
warrants solely for First Amendment activities, this only applies
to the target of the investigation, not those whose records are
sought. Once the government has begun a legitimate investigation,
the USAPA allows it to obtain records on an unlimited number of
citizens without a showing of any illegal activity.
Additionally, the use of the word "solely"
further limits the restriction on investigation of free speech
DOJ Myth No. 4
Ashcroft claims that the new crime of
domestic terrorism does not apply to peaceful dissent and only
applies to "true" terrorism. The DOJ website ridicules
groups raising any alarm about use of this provision against peaceful
REALITY: The USAPA creates a new crime
of domestic terrorism, a concept so fluid that almost all acts
of political expression and resistance could be included in its
definition. Section 802 of the USAPA states, "Domestic terrorism
means activities that (A) involve acts dangerous to human life
that are a violation of the criminal laws of the U.S. or any state;
(B) appear to be intended (i) to influence policy of a government
by intimidation or coercion; or (ii) to affect the conduct of
a government by mass destruction, assassination, or kidnapping;
and (B) occur primarily within the territorial jurisdiction of
This definition blurs ideology and terrorism.
Any group that uses direct action, civil disobedience, or confrontational
political action could fit under this definition. Even the American
Bar Association Task Force on Terrorism and the Law has objected
to the subjective nature of this provision since the targeted
acts only need to "appear to be intended" to influence
The Justice Department has not been able
to assure us that the law won't be used against civil disobedience,
for example protesting what will surely be Bush's next imperial
adventure. The Justice Department website says that this law will
not be used for dissent that does not break laws, implying that
it can be used if laws are broken even if such unlawfulness is
non-violent. Also, there are civil penalties for individuals and
organizations convicted of domestic terrorism. U.S. Code Title
18 Section 981(a)(1)(G) provides for forfeiture of "all assets
of any individual, entity or organization engaged in planning
or perpetuating any act of domestic or international terrorism
(as defined in Section 2331)...and all assets, foreign or domestic,
affording any person a source of influence or control over any
such entity or organization.... "
History shows us that we can have little
trust in the FBI and the Justice Department. The FBI's COINTELPRO
(Counter Intelligence Program) in the 1960s and 1970s used every
dirty trick in the book to disrupt anti-war, feminist and black
militant groups. If the FBI was willing to violate civil rights
without any law in support, what will it do with the powers granted
by the USAPA?
DOJ Myth No. 5
In speeches made in New York (September
9), Boise, Idaho (August 25), Washington, DC (September 15), and
elsewhere, Ashcroft claims that the USAPA "breaks down the
wall" and allows information sharing and that this information
sharing has been crucial in thwarting terrorism.
REALITY: Claims of success due to the
breaking down of the wall are dubious. First, it should be noted
that the USAPA does not eliminate any "wall." It allows
for sharing information among a wide range of federal agencies
of "foreign intelligence and counter-intelligence" obtained
through grand jury investigations. A court must only be "notified"
of this sharing of information; it does not require court approval.
Grand jury testimony is given without benefit of legal counsel
for the person subpoenaed to testify and without cross- examination.
This power can only be defied at the risk of imprisonment for
the life of the grand jury. The ability to compel testimony before
a grand jury is thus one of the federal government's greatest
powers. The USAPA puts that power in the hands of FBI or CIA agents
working together with cooperative U.S. attorneys to subpoena people
they are interested in, whether or not there is any suspicion
of criminal behavior.
Testimony compelled under these circumstances
can also be highly unreliable. In the past, grand jury testimony
was confidential with few court-approved exceptions and it was
supposed to be used solely as the basis for criminal charges that
were ultimately tried in a court of law. Under the USAPA, it can
be disseminated broadly without ever being tested in an adversarial
Any other "wall," primarily
between the CIA and FBI, restricting intra-agency information
sharing is the result of cultural and bureaucratic differences
and jealousies. The USAPA did not break down those barriers .
The wall between intelligence gathering
and law enforcement exists for a purpose. Along with the exposure
of the COINTELPRO abuses in the late 1970s, the Senate Select
Committee on Intelligence (commonly known as the Church Committee
after its chair, Sen. Frank Church of Idaho) proposed legislation
to stem abuses resulting from intelligence gathering on lawful
organizations. The legislation was never adopted, but the FBI
did adopt guidelines on domestic intelligence gathering, i.e.,
spying. Ashcroft has repudiated these guidelines and encouraged
the FBI to spy on mosques and Arab and Muslim American organizations.
Elimination of this wall between intelligence
gathering and law enforcement presents a greater threat to civil
liberties. Prior to the 1996 anti-terrorism act, information gained
from surveillance authorized by a court, pursuant to FISA, could
be used in a criminal prosecution only against a "foreign
agent." Under FISA, as amended by USAPA, warrants for wiretaps,
searches, seizure of records, etc. can be obtained if gathering
such intelligence is a "significant purpose" of the
surveillance. This is far below the standard mandated by the Fourth
Amendment to the Constitution, which requires "probable cause"
of criminal activity.
DOJ Myth No. 6
Ashcroft claims that many of the complaints,
such as the post-September 11 roundup of Arabs and Muslims, the
detentions at Guantanamo, the enemy combatant rules, and the registration
of Arab and Muslim men, are not part of the USAPA.
REALITY: The detention and deportation
of non-citizens suspected of terrorism was initially conducted
under Ashcroft's authority, but later incorporated into the USAPA.
That is another instance of covering up the extent of the USAPA's
assault on civil liberties. Ashcroft's claims that these provisions
are not in the USAPA ignores the fact that the federal government
has tied all these provisions together as part of the "war
on terrorism." But beyond that, the USAPA has become the
lightening rod for uneasiness and apprehension over the expanded
powers granted the government in the wake of September 11.
It is the atmosphere that has been created
not only by the USAPA, but also by the "either you are with
us or with the terrorists" attitude, implying that opposing
Bush's policies is an unpatriotic act. Bush, Ashcroft, and laws
such as the USAPA have created an atmosphere of repression and
fear, both among immigrant communities and those who dissent to
war without end. Community resolutions opposing the USAPA are
one form of resistance to the assault on civil liberties. Other,
more active, resistance, such as destruction of library records
as soon as materials are returned, is also growing. In any case,
Ashcroft's offensive is doomed to failure as the lies, half-truths,
and myths promulgated by the DOJ continue to be exposed and more
people campaign for the repeal of the USAPA.
Jeffrey Frank is an activist and attorney
with the National Lawyers Guild.