Are You A Patriot?
by John Kaminski
Z magazine, December 2001
The Patriot Act, now passed and the law of the land, has eliminated
the Constitutional guarantee of probable cause when investigating
a crime, and allows the police-at any time, for any reason-to
enter and search your house, files, bank account-and not even
tell you about it.
Are you a patriot? Well, the fact of the matter is, you are
whether you want to be or not. The recent passage and signing
of the Patriot Act has effectively nullified at least six amendments
of the Bill of Rights addendum to the U. S. Constitution. This
Patriot Bill is a massive violation of the Constitution it purports
to uphold and improve. Among other things, it mandates that judges
give police search warrants when they ask for them, for any reason.
Judges can't deny these warrants to police, because police don't
need a stated reason to ask for them.
The Patriot Act rushed through Congress and signed by President
George W. Bush is a major step toward a totalitarian state in
which individual liberty is crushed by the whim of police and
corporate demagogues masquerading as patriots. The Patriot Act:
* Violates the First Amendment freedom of speech guarantee,
right to peaceably assemble provision, and petition the government
for redress of grievances provision; it violates the First Amendment
to the Constitution three times.
* Violates the Fourth Amendment guarantee of probable cause
in astonishingly major and repeated ways. The Fourth Amendment
to the Constitution reads: "The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to
be searched, and the persons of things to be seized." The
Patriot Act has revoked the necessity for probable cause and allows
the police, at any time and for any reason, to enter and search
your house-and not even tell you about it.
* Violates the Fifth Amendment by allowing for indefinite
incarceration without trial for those deemed by the Attorney General
to be threats to national security. The Fifth Amendment guarantees
that no person shall be deprived of life, liberty or property
without due process of law, and the Patriot Act does away with
due process. It even allows people to be kept in prison for life
without a trial.
* Violates the Sixth Amendment guarantee of the right to a
speedy and public trial. Now you may get no trial at all, ever.
* Violates the Eighth Amendment (cruel and unusual punishment).
Violates the 13th Amendment (punishment without conviction).
Most of the following information is taken from the ACLU's
written objections to Congress before and after the passage of
the Patriot Act. The Patriot Act does the following:
* It keeps judges out the process and lets cops do what they
want (cops meaning FBI, CIA, etc.).
* It minimizes judicial supervision of telephone and Internet
surveillance by law enforcement authorities in anti-terrorism
investigations and in routine criminal investigations unrelated
to terrorism. Unrelated to terrorism-that means anything.
* It expands the ability of the government to conduct secret
searches-again in anti-terrorism investigations and in routine
criminal investigations unrelated to terrorism.
* It gives the Attorney General and the Secretary of State
the power to designate domestic groups as terrorist organizations
and block any non-citizen who belongs to them from entering the
country. Under this provision the payment of membership dues is
a deportable offense. That means, among other things, that Bush
and Ashcroft can decide Greenpeace and Ralph Nader are terrorists,
and under this law, it can put them in jail.
* It grants the FBI broad access to sensitive medical, financial,
mental health, and educational records about individuals without
having to show evidence of a crime and without a court order.
It means they can do what they want for no good reason, except
to persecute and imprison people.
* It could lead to large-scale investigations of American
citizens for "intelligence" purposes and use of intelligence
authorities to by-pass probable cause requirements in criminal
* It puts the CIA and other intelligence agencies back in
the business of spying on Americans by giving the director of
Central Intelligence the authority to identify priority targets
for intelligence surveillance in the United States.
* It allows searches of highly personal financial records
without notice and without judicial review based on a very low
standard that does not require probable cause of a crime or even
relevancy to an ongoing terrorism investigation.
* It creates a broad new definition of "domestic terrorism"
that could sweep in people who engage in acts of political protest
and subject them to wiretapping and enhanced penalties. This means
they can jail anyone who disagrees with them, and keep them in
jail for life without a trial.
* It permits the detention of non-citizens facing deportation
based on the Attorney General's certification that he/she has
"reasonable grounds to believe" the non-citizen endangers
national security. While immigration or criminal charges must
be filed within seven days, these charges need not have anything
to do with terrorism, but can be minor visa violations of the
kind that normally would not result in detention at all. Non-citizens
ordered removed on visa violations could be indefinitely detained
if they are stateless, their country of origin refuses to accept
them, or they are granted relief from deportation because they
would be tortured if they were returned to their country of origin.
* It permits the Attorney General to indefinitely incarcerate
or detain non-citizens based on mere suspicion, and to deny re-admission
to the United States of non-citizens (including lawful permanent
residents) for engaging in speech protected by the First Amendment.
Wiretapping and Intelligence Surveillance
The wiretapping and intelligence provisions in the USA Patriot
Act sound two themes: they minimize the role of a judge in ensuring
that law enforcement wiretapping is conducted legally and with
proper justification, and they permit use of intelligence investigative
authority to by-pass normal criminal procedures that protect privacy.
1. The USA Patriot Act allows the government to use its intelligence
gathering power to circumvent the standard that must be met for
criminal wiretaps. Currently FISA surveillance, which does not
contain many of the same checks and balances that govern wiretaps
for criminal purposes, can be used only when foreign intelligence
gathering is the primary purpose The new law allows use of FISA
surveillance authority even if the primary purpose were a criminal
investigation. Intelligence surveillance need only have a "significant"
purpose. This provision authorizes unconstitutional physical searches
and wiretaps: though it is searching primarily for evidence of
crime, law enforcement conducts a search without probable cause
2. The USA Patriot Act extends a very low threshold of proof
for access to Internet communications that are far more revealing
than numbers dialed on a phone. Under current law, a law enforcement
agent can get a pen register or trap and trace order requiring
the telephone company to reveal the numbers dialed to and from
a particular phone. To get such an order, law enforcement must
certify to a judge-who must grant the order-that the information
to be obtained is "relevant to an ongoing criminal investigation."
This provision apparently applies to law enforcement efforts to
determine what websites a person had visited, which is like giving
law enforcement the power-based only on its own certification-to
require the librarian to report on the books you have perused
while visiting the library. This provision extends a low standard
of proof-far less than probable cause-to actual "content"
3. In allowing for "nationwide service" of pen register
and trap and trace orders, the law further marginalizes the role
of the judiciary. It authorizes what would be the equivalent of
a blank warrant in the physical world: the court issues the order
and the law enforcement agent fills in the places to be searched.
This is not consistent with the important Fourth Amendment
privacy protection of requiring that warrants specify the place
to be searched. Under this legislation, a judge is unable to meaningfully
monitor the extent to which her/his order was being used to access
information about Internet communications.
4. The Act also grants the FBI broad access in "intelligence"
investigations to records about a person maintained by a business.
The FBI need only certify to a court that it is conducting an
intelligence investigation and that the records it seeks may be
relevant. With this new power, the FBI can force a business to
turn over a person's educational, medical, financial, mental health,
and travel records based on a very low standard of proof and without
meaningful judicial oversight.
The ACLU noted that the FBI already had broad authority to
monitor telephone and Internet communications. Most of the changes
apply not just to surveillance of terrorists, but also to all
surveillance in the United States. All surveillance.
Law enforcement authorities-even when they are required to
obtain court orders - have great leeway under current law to investigate
suspects in terrorist attacks. Current law already provided, for
example, that wiretaps can be obtained for the crimes involved
in terrorist attacks, including destruction of aircraft and aircraft
The FBI also already had authority to intercept these communications
without showing probable cause of crime for "intelligence"
purposes under the Foreign Intelligence Surveillance Act. In fact,
FISA wiretaps now exceed wiretapping for all domestic criminal
investigations. The standards for obtaining a FISA wiretap are
lower than the standards for obtaining a criminal wiretap.
The law dramatically expands the use of secret searches. Normally,
a person is notified when law enforcement conducts a search. In
some cases regarding searches for electronic information, law
enforcement authorities can get court permission to delay notification
of a search. The USA Patriot Act extends the authority of the
government to request "secret searches" to every criminal
case. This vast expansion of power goes far beyond anything necessary
to conduct terrorism investigations.
The Act also allows for the broad sharing of sensitive information
in criminal cases with intelligence agencies, including the CIA,
the NSA, the INS and the Secret Service. It permits sharing of
sensitive grand jury and wiretap information without judicial
review or any safeguards regarding the future use or dissemination
of such information.
These information sharing authorizations and mandates effectively
put the CIA back in the business of spying on Americans: Once
the CIA makes clear the kind of information it seeks, law enforcement
agencies can use tools like wiretaps and intelligence searches
to provide data to the CIA. In fact, the law specifically gives
the Director of Central Intelligence - who heads the CIA-the power
to identify domestic intelligence requirements.
The law also creates a new crime of "domestic terrorism."
The new offense threatens to transform protestors into terrorists
if they engage in conduct that "involves acts dangerous to
human life." Members of Operation Rescue, the Environmental
Liberation Front, and Greenpeace, for example, have all engaged
in activities that could subject them to prosecution as terrorists.
Then, under this law, those who provide lodging or other assistance
to these "domestic terrorists" could have their homes
wiretapped and could be prosecuted.