The U.S.A. Patriot Act

What's So Patriotic about Trampling on the Bill of Rights?

by Nancy Chang

CovertAction Quarterly, Winter 2001

Just six weeks after the September 11 terrorist attacks on the World Trade Center and the Pentagon, a jittery Congress - exiled from its anthrax-contaminated offices and confronted with warnings that more terrorist assaults were soon to come - capitulated to the Bush Administration's demands for a new arsenal of anti-terrorism weapons. Over vigorous objections from civil Liberties organizations on both ends of the political spectrum, Congress overwhelmingly approved the USA PATRIOT Act. The House vote was 356-to-66, and the Senate vote was 98-to-1. Along the way, the Republican House Leadership, in an unusual display of force, jettisoned an anti-terrorism bill that the House Judiciary Committee had unanimously approved and that would have addressed a number of civil liberties concerns. This hastily drafted, complex, and far-reaching bill spans 342 pages. Yet it was passed with virtually no public hearing or debate and is accompanied by neither a conference nor a committee report. On October 26, a triumphant President George W. Bush signed the USA PATRIOT Act into Law.

VAST AND UNCHECKED POWERS FOR THE EXECUTIVE BRANCH

Although some of its provisions do not appear to be controversial, the USA PATRIOT Act nevertheless stands out as radical in its design. To an unprecedented degree, the Act sacrifices our freedoms in the name of national security and upsets the democratic values that define our nation by consolidating vast new powers in the executive branch of government. Under the Act, the executive's ability to conduct surveillance and gather intelligence is enhanced, prosecutors have a set of new tools to work with, including new crimes, enhanced penalties, and Longer statutes of Limitations, and the INS has gained the authority to detain immigrants suspected of terrorism for Lengthy, or even indefinite, periods of time. And at the very same time that the Act inflates the powers of the executive, it insulates the exercise of these powers from any meaningful judicial and congressional oversight.

It remains to be seen how the executive will wield its new authority. However, if the two months that have elapsed since September 11 serve as a guide, we should brace ourselves for a flagrant disregard of the rule of law. Already, the Department of Justice (DOJ) has admitted to detaining over 1,100 immigrants, not one of whom has been charged with committing a terrorist act and only a handful of whom are being held as material witnesses to the September 11 hijackings. Many in this group appear to have been held for extended time periods under an extraordinary interim regulation first announced by Attorney General John Ashcroft on September 17. This regulation sets aside the strictures of due process by permitting the INS to detain aliens without charge for 48 hours or an uncapped "additional reasonable period of time" in the event of an "emergency or other extraordinary circumstance." Also, many in this group are being held without bond under the pretext of unrelated criminal charges or minor immigration violations, in a modern-day form of preventive detention. chillingly, the Attorney General responded to the passage of the USA PATRIOT Act not by pledging to use his new powers responsibly and guard against their abuse, but instead by vowing to step up his detention efforts. Conflating immigrant status with terrorist status, he declared: "Let the terrorists among us be warned, if you overstay your visas even by one day, we will arrest you."

In addition, the administration has made no secret of its hope that the judiciary will accede to its broad reading of the USA PATRIOT Act just as pliantly as Congress acceded to its broad legislative agenda. In a Letter sent to key senators while Congress was deliberating over this legislation, Assistant Attorney General Daniel J. Bryant of DOJ's Office of Legislative Affairs, open advocated for a suspension of the Fourth Amendment's warrant requirement in the face of foreign national security threats. The Bryant Letter brazenly declares:

As Commander-in-Chief, the President must be able to use whatever means necessary to prevent attacks upon the United States; this power, by implication, includes the authority to collect information necessary to its effective exercise.

WHOLESALE SUSPENSION OF CIVIL LIBERTIES

The administration's blatant power grab, coupled with the wide array of anti-terrorism tools that the USA PATRIOT Act puts at its disposal, portend a wholesale suspension of civil liberties that will reach far beyond those who are involved in terrorist activities. First, the Act places our First Amendment rights to freedom of speech and political association in jeopardy, by creating a broad new crime of "domestic terrorism," and by denying entry to non-citizens on the basis of ideology. Second, the Act will reduce our already lowered expectations of privacy under the Fourth Amendment by granting the government enhanced surveillance powers. Third, non-citizens will see a further erosion of their due process rights as they are placed in mandatory detention and removed from the United States under the Act. Political activists who are critical of our government or who maintain ties with international political movements are likely to bear the brunt of these attacks on our civil liberties.

Section 802 of the USA PATRIOT Act creates a federal crime of "domestic terrorism" that broadly extends to "acts dangerous to human life that are a violation of the criminal Laws" if they "appear to be intended... to influence the policy of a government by intimidation or coercion," and if they "occur primarily within the territorial jurisdiction of the United States." Because this crime is couched in such vague and expansive terms, it runs the risk of being read by federal law enforcement agencies as licensing the investigation and surveillance of political activists and organizations based on their opposition to government policies. It also runs the risk of being read by prosecutors as Licensing the criminalization of Legitimate political dissent. Vigorous protest activities, by their very nature, could be construed as acts that "appear to be intended ... to influence the policy of a government by intimidation or coercion." Further, clashes between demonstrators and police officers and acts of civil disobedience (even those that do not result in injuries and are entirely non-violent) run the risk of being construed as "dangerous to human life" and in "violation of the criminal laws." Environmental activists, anti-globalization citizen has solicited funds for, solicited membership for, or provided material support to, an undesignated "terrorist organization," Section 411 saddles him with the difficult, if not impossible, burden of "demonstrat[ing] that he did not know, and should not reasonably have known, that the act would further the organization's terrorist activity." Furthermore, while Section 411 prohibits the removal of a non-citizen on the grounds that he solicited funds for, solicited membership for, or provided material support to, a designated "terrorist organization" at a time when the organization was not designated as a "terrorist organization," it does not prohibit the removal of a noncitizen on the grounds that he solicited funds for, solicited membership for, or provided material support to, an undesignated "terrorist organization" prior to the enactment of the Act.

At the same time that Section 411 vastly expands the class of immigrants who can be removed on terrorist grounds, Section 412 vastly inflates the Attorney General's power to detain immigrants who are suspected of falling into that class. Upon no more than the Attorney General's unreviewed certification that he has "reasonable grounds to believe" that a non-citizen is engaged in terrorist activities or other activities that threaten the national security, a non-citizen can be detained for as Long as seven days without being charged with either a criminal or immigration violation. This low level of suspicion falls far short of a finding of probable cause, and appears even to fall short of the reasonable and articulable suspicion that supports a brief investigatory stop under the Fourth Amendment.

If the non-citizen is charged with an immigration violation, he is subject to mandatory detention and is ineligible for release until he is removed, or until the Attorney General determines that he should no Longer be certified as a terrorist. Until the immigration proceedings are completed, the Attorney General is required to review his certification once every six months. However, the Act does not direct the Attorney General either to inform the non-citizen of the evidence on which the certification is based, or to provide the non-citizen with an opportunity to contest that evidence at an Immigration Judge hearing or other administrative proceeding. Instead, the Act Limits the non-citizen's ability to seek review of the certification to a habeas corpus proceeding filed in federal district court, appeals from which must be filed in the Court of Appeals for the District of Columbia. Since habeas proceedings are civil rather than criminal in nature, the government has no obligation under the Sixth Amendment to provide non-citizens with free counsel in such proceedings.

Even where a non-citizen who is found removable is found eligible for asylum or other relief from removal, Section 412 of the Act does not permit his release. Further, in the event that the non-citizen is found removable, but removal is "unlikely in the reasonably foreseeable future" (most likely because no other country will accept him) he may be detained for additional periods of six months "if the release of the alien will threaten the national security of the United States or the safety of the community or any person."

The Due Process Clause "applies to all 'persons' within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent." Yet, the Act exposes immigrants to extended, and, in some cases, indefinite, detention on the sole authority of the Attorney General's untested certification that he has "reasonable grounds to believe" that a non-citizen is engaged in terrorist activities. It remains to be seen what evidentiary safeguards, if any, the Attorney General will build into his regulations implementing the Act. It also remains to be seen how rigorous federal court habeas reviews of such certifications will be and to what extent the courts will demand that the Attorney General base his certification on objective evidence. Nevertheless, it is hard to avoid the conclusion that the Act's certification and mandatory detention provisions will deprive non-citizens of their Liberty without due process of Law.

WILL THE JUDICIARY UPHOLD THE BILL OF RIGHTS?

Our commitment to the Bill of Rights and to the democratic values that define this nation have been put to the test by the events of September 11. Already, Congress and the administration have demonstrated their eagerness to sacrifice civil liberties in hopes of gaining an added semblance of security. The task of upholding the Bill of Rights (or acquiescing in its surrender) will soon fall to the judiciary, as lawsuits testing the constitutionality of the USA PATRIOT Act wind their way through the courts.

The extent to which the judiciary will defer to the administration's views on the troubling First and Fourth Amendment issues presented by the USA PATRIOT Act, tolerate ethnic and ideological profiling by the Administration as it implements the Act, and allow the due process rights of immigrants in detention to be eroded remain open questions. Certainly, the more anxious the times become, the more likely the judiciary will be to side with the administration, at Least where it is convinced that the measures are vital to the national security, are not motivated by discriminatory intent, and tread as lightly as possible upon civil liberties. The recent words of Supreme Court Justice Sandra Day O'Connor, who so often figures as the swing vote on pivotal decisions, do not hold out hope for a vigorous defense o our political freedoms by the judiciary. Following a visit to Ground Zero, where the World Trade Center once stood, the Justice bleakly predicted, "We're likely to experience more restrictions on personal freedom than has ever been the case in this country."

Nancy Chang is the Senior Litigation Attorney at the Center for Constitutional Rights in New York City. Her work at the Center has focused on protecting the First Amendment rights of political activists against government effort to silence dissent, safeguarding civil liberties against measures taken in the name of national security, protecting the constitutional rights of immigrants, and combating racial profiling. This article is excerpted from a longe piece to be published by Seven Stories Press.

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