by Salim Muwakkil
In these Times magazine, January 2002
Citizens of the United States, be advised that the federal
government can now examine your medical, educational and financial
history, all without your knowledge and without even presenting
evidence of a crime.
Police now can obtain court orders to conduct so-called sneak-and-peak
searches of your homes and offices and remove or alter your possessions
without your knowledge. Internet service providers and telephone
companies can be compelled to turn over your customer information,
including the phone numbers you've called and Internet sites you've
surfed-all, again, without a court order, if the FBI claims the
records are relevant to a "terrorism investigation."
A secret court can permit roving wiretaps of any telephone or
computer you might possibly use; reading your email is allowed,
even before you open it.
These are just some of the provisions of the USA PATRIOT Act
of 2001-the bill's title is an acronym for "Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism"-which President George W. Bush signed
into law on October 26. In passing the legislation, Senate Majority
leader Thomas Daschle said Congress was "able to find what
I think is the appropriate balance between protecting civil liberties,
privacy, and ensuring that law enforcement has the tools to do
what it must."
The fears provoked by the kamikaze hijackings and the anthrax
incidents that followed explain why many legislators have been
less protective of civil liberties. Those progressive legislators
who supported the legislation said the unique and deadly circumstances
of the 9/11 attacks already had predisposed them to support strong
action, and many noted that a sunset provision would allow the
bill's most controversial surveillance sections to expire in 2005.
But the Bill of Rights was designed to offer a judicial sanctuary
from political passions. If progressive legislators don't make
that clear, who will?
The events of 9/11 make it plain that the United States has
enemies willing to die for their cause, and it would be impractical,
even foolish, to deny the need for increased national vigilance.
Ratcheting up our security is necessary, if only to enhance citizens'
sense of well-being. And, according to a Newsweek poll reported
in the publication's December 10 edition, "86 percent think
the administration has not gone too far in restricting civil liberties
in its response to terrorism."
The import of the USA PATRIOT Act was presaged by the Clinton
administration's anti-terrorism bill of 1996, which broadened
the government's investigative and prosecutorial powers. And even
before that, the Foreign Intelligence Surveillance Act of 1978
allowed the wiretapping of noncitizens by approval of a secret
court with secret evidence. But this new legislation ups the ante
considerably. "This new legislation goes far beyond any powers
conceivably necessary to fight terrorism in the United States,"
says Laura Murphy of the American Civil Liberties Union. "The
long-term impact on basic freedoms in this legislation cannot
Leading the charge in the wake of 9/11 is Attorney General
John Ashcroft, who, for starters, launched a nationwide dragnet
that rounded up more than 1,000 foreign nationals and detained
most of them on minor immigration charges. Many have since been
released after officials found they had no connection to terrorism.
As of December 6, 603 foreign nationals remain in custody. On
Halloween, Ashcroft issued an order allowing federal authorities
to monitor communications between federal prisoners and their
lawyers without first obtaining a judicial warrant. He argued
that this new power is necessary to prevent terrorist attacks
planned under cover of lawyer-client privilege.
The administration's power grab is so audacious that it has
prompted a new alliance between the civil-liberties left and the
libertarian right. New York Times columnist William Safire characterized
Bush's strategy as "a sudden seizure of power by the executive
branch, bypassing all constitutional checks and balances."
The ACLU, joined by 16 other civil rights and human rights groups,
filed suit on December 5, charging the Justice Department with
violating the Constitution and federal law through its detention
Mining public fears for all the right-wing treasures he can
get, Ashcroft also has proposed relaxing restrictions on the FBl's
spying on religious and political organizations. The guidelines
Ashcroft has targeted were imposed on the FBI in the '70s after
the death of J. Edgar Hoover and revelations about the COINTELPRO
program-which included disclosures of the agency's surveillance
and harassment of Martin Luther King Jr. In Chicago, activists
recently commemorated another poignant signpost of COINTELPRO
infamy: the police assassination of Black Panther leaders Fred
Hampton and Mark Clark on December 4, 1969. COINTELPRO ultimately
was condemned as "little more than a sophisticated vigilante
action" by the Congress and shut down.
But under Section 802 of the USA PATRIOT Act, a person commits
the crime of "domestic terrorism" if he engages in activity
"that involves acts dangerous to human life that violate
the laws of the U.S. or any state and appear 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 definition of terrorism could allow the
feds to go after environmental, civil rights or anti-globalization
groups, among others, for their dissenting views or direct-action
Right-wing extremism is always fertilized by external threats.
At its most notorious extreme, Adolph Hitler's Nazi Party rose
like a rocket after the 1933 Reichstag fire convinced the German
people that the Bolsheviks were out to get them. At the Nuremberg
Trials, Hitler's second-in-command, Hermann Goering, aptly explained
the process: "The people can always be brought to do the
bidding of the leaders. That is easy. All you have to do is tell
them they are being attacked, and denounce the pacifists for lack
of patriotism and exposing the country to danger."
This eerily familiar formula is so effective that it has become
enshrined in U.S. traditions, even if it violates strictures of
the Constitution. During times of war, the chief executive has
implemented many extra-constitutional edicts: Abraham Lincoln
unilaterally suspended habeas corpus during the Civil War; the
infamous, anti-Communist Palmer Raids of 1920 arrested thousands
of people without warrants or due process; Franklin D. Roosevelt
ordered the internment of more than 100,000 Japanese-Americans
in squalid camps. In retrospect, these excessive actions invariably
have been condemned as historical blemishes.
But today's policymakers seem oblivious to the lessons of
history as they implement actions that echo-and amplify- those
past excesses. Roosevelt also ordered a special military tribunal
for eight accused Nazi spies, six of whom were later executed.
The Supreme Court upheld Roosevelt's tribunal as it has most other
questionable actions of wartime presidents. And the Bush administration
has used the top court's 8-0 decision in 1942 as a precedent to
bolster the president's own proposed military tribunals. Bush
has assumed unchecked power as commander-in-chief to detain and
try any noncitizen he suspects of committing terrorist acts or
helping international terrorists. These suspects can be secretly
arrested, tried, convicted and executed even if prosecutors failed
to prove their case beyond a reasonable doubt.
Like the Bush administration's war, the future of our civil
liberties is fuzzy and indeterminate. Since this is a war on the
tactic of "terrorism" rather than on a tangible enemy,
there is no entity to offer a formal surrender. The "war"-and
the concomitant wartime powers and prerogatives-can be extended
indefinitely; only the Bush administration has the power to declare
the war's end.
Soon after 9/11, Bush said the people who perpetuated the
terrorist murders hate America because of "our freedoms."
After a few more executive orders and congressional capitulations,
they won't have much left to hate.