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 cases.

* 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. Specifically:

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 of crime.

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 simply

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" information.

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 piracy.

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.

Criminal Justice

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.

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