RW ONLINE: Warning! The USA Patriot Act and Other Dangerous Things
Warning! The USA Patriot Act and Other Dangerous Things
Revolutionary Worker #1206, July 6, 2003, posted
Hundreds of people held without charges for months at a time, secret warrants
issued for library records, U.S. citizens snatched by federal agents on U.S.
soil and held as "enemy combatants"-- waves of repression since September
11 bring back memories of intense earlier repression--the Palmer raids and mass
deportations of the 1920s, the concentration camps for Japanese Americans during
WW2, McCarthyite witchhunts of the 1950s, and COINTELPRO in the 1960s.
Many parallels come to mind. Nonetheless, some truly unprecedented changes
are under way today in the U.S. legal system. Constitutional principles
that were supposed to be bedrock to the U.S. system of justice are being jettisoned
in key respects--including due process, probable cause, right to counsel, and
Limits placed on law enforcement spying on political activities in the 1960s
and '70s have been lifted, and detention without charges, massive surveillance
without criminal suspicion, and prosecutorial overreaching are now facts of
life in America.
Non-citizens have been the first targets. The government has thrown overboard
the long-standing principle that non-citizens in the U.S. generally have the
same legal rights and protections as citizens (except for the right to vote
and laws governing their immigration status). And then, the "logic of the
logic" starts to extend the legal changes to citizens as well.
USA Patriot Act
The single largest new piece of legislation so far is the USA Patriot Act.
It was passed barely six weeks after September 11 in an atmosphere of fear and
intimidation, as the anthrax scare forced many in Congress out of their offices.
The USA Patriot Act breaks down old walls between domestic and foreign intelligence,
treating the "homeland" as another battleground of an international
war. It puts the powers of the Foreign Intelligence Surveillance Act (FISA)
at the disposal of domestic law enforcement agencies. It further undermines
the Fourth Amendment protection against unlawful search and seizure, along with
the distinction between law enforcement and political suppression. Everything
from our e-mail traffic, to the videoed images of our daily life, to formerly
secret grand jury testimony is now available to local cops and the CIA alike.
The Justice Department's June 2003 report to Congress on its use of these powers
revealed that 10 FBI field offices have monitored mosques in their jurisdictions.
It did not reveal how many agents have now infiltrated how many religious communities.
Information on other kinds of surveillance done under the USA Patriot Act remains
classified, so we don't know any details of them either.
While the people are opened up to scrutiny, the government acts in secret.
The government has the power to prosecute anyone who reveals what records government
agents are taking or who they're targeting. Secret warrants, secret detentions,
secret court hearings, evidence secret even from the defendants--the list is
long and growing.
The alleged thoughts inside people's heads are now an element defining
how the state can prosecute various actions.
"Domestic terrorism," as defined in the USA Patriot Act, is a violation
of any criminal statute if that violation is "dangerous to human life"
and "appear[s] to be intended to influence the policy of a government by
intimidation or coercion." So intentions are key, and it's the government
who'll determine what those intentions are.
A wide range of activities could be seen as attempts to influence government
policy, including militant protests, strikes, and civil disobedience. As a result,
"terrorism" essentially means whatever the government says it means.
People who plan or participate in determined protest actions could also become
targets of the spying and surveillance sanctioned by the USA Patriot Act. .
The crime of "harboring a terrorist" is defined in the USA Patriot
Act as a failure to notify the FBI if you have "reasonable grounds to believe"
that someone is about to commit a terrorist offense.
These two new crimes, "domestic terrorism" and "harboring a
terrorist," will not expire automatically -- they are permanent features,
blatantly injecting the government's evaluations of the defendant's political
motivation into the Federal criminal code. And there is no statute of limitations
on prosecution; a person can be charged and tried at any time for allegations
of past actions.
Seizing Assets without Convictions
The Patriot Act opens up huge categories of financial records to government
surveillance, from credit reports to bank accounts.
The secretary of the treasury can now issue his own list of "suspected
terrorists" whose transactions banks are required to monitor and report
back on to the government, all without the knowledge of the targets.
The accounts of non-profit and charitable organizations are singled out as
particularly important to monitor.
All assets that the government claims will be used to support terrorist activities
can be seized under the Patriot Act, based at most on probable cause that a
crime had been or was about to be committed and without an actual criminal
This can be a powerful tool for shutting down a wide range of political and
humanitarian organizations, especially those with international ties
In December 2001 the government seized the assets of the three largest Muslim
charities in the U.S.- -without any criminal charges, without a judge's review,
without a single "day in court."
The Patriot Act amended the International Emergency Economic Powers Act to
give the government the right to seize assets "pending investigation"
of any foreign person or organization that the President determines has "planned,
authorized, aided or engaged in" hostilities against the U.S.
The three Muslim charities were deemed to fit that description, even though
they were based in the U.S., because they were involved in charitable projects
overseas. Trucks pulled up to their offices and hauled away every stick of furniture,
every piece of paper and every computer hard drive on their premises, putting
them out of business and putting the names of contributors in the government's
Such complete seizure of assets was called a "general warrant" when
the King of England used it against the American colonists, and it has been
illegal since the Bill of Rights became law.
The Fourth Amendment to the Constitution requires that a warrant be based on
"probable cause" that a crime has been or is about to be committed
(not just a hunch). A warrant previously had to describe the place to be searched
and specifically mention the people or things to be seized. But none of that
applied in the raids on the charities.
When attorneys for one of the Muslim charities asked to see the warrant against
their client, they were told it was secret. This made it impossible to challenge
whatever allegations might have been made to obtain the warrant. This is an
extreme example of denial of due process--the principle that legal proceedings
must be conducted according to established rules, including notice of charges--and
the right to a fair hearing before a tribunal with the power to decide the case.
Criminalizing International Ties
The criminalization of international political and humanitarian ties did not
begin with the USA Patriot Act. The 1996 Anti-Terrorism and Effective Death
Penalty Act resurrected guilt-by- association when it expanded the definition
of "material support" for international terrorism to include all kinds
of support to any organization designated as "terrorist."
A previous distinction between an organization's legal or humanitarian work
and its illegal or armed actions was abolished. So a donation to a hospital
in the West Bank that might have some affiliation to the Palestinian party Hamas,
for instance, now became "support for terrorism." And since Hamas
is deeply involved in providing social services to Palestinians, it is now hard
to know when a contribution to Palestinian social services risks a criminal
charge of "support for terrorism."
The 1996 law made an exception for medical or religious materials. The Patriot
Act abolishes even that distinction. It also expands the definition of "support"
to include "expert advice or assistance"--commentators have pointed
out that this could include any kind of humanitarian assistance, even
efforts at peace negotiation.
The secretary of state can designate a group as "terrorist" if its
activities "threaten the national security, foreign policy, or economy
of the U.S." This definition is so vague and so broad that it can include
any group not in favor with the government.
Most of the more than 30 groups designated to date have been Middle Eastern,
many Palestinian, but they have included the Communist Party of Peru and the
New People's Army of the Philippines as well.
The most serious post-9/11 prosecutions for "material support of terrorism"
have been under this 1996 statute, buttressed by expanded post-9/11 police powers.
The government does not need to prove that the defendants supported any
acts of violence, only that they are linked in some way to a group alleged to
have committed them.
The Lackawanna 6, Muslim men of Yemeni descent born in the U.S., were held
for months without bail on the evidence of foreign travel, Islamic beliefs,
and a statement by one of the accused that they had visited an al-Qaida training
camp. They were not charged with planning, let alone carrying out, any specific
act of violence. There was not even an allegation of membership in al-Qaida.
Their mere presence at the training camp was considered "material
support." Similar prosecutions against U.S. citizens are underway in Oregon,
Florida, California, and elsewhere.
Double Standards for Noncitizens
As David Cole of Georgetown University law school has pointed out, noncitizens
are living under what amounts to martial law under the terms of the USA Patriot
Act. And many of these restrictions on non-citizens are rather openly based
on ideology and political belief.
One section of the Patriot Act creates a very broad class of non-citizens who
can be deported or barred from entering the U.S. simply for political associations
or political statements they have made. This revives a law from the McCarthy
era but applies such powers even more broadly.
For example, this provision was used to bar Bernadette Devlin MacAlisky, a
former member of the British parliament and prominent Irish opponent of British
rule in Northern Ireland, from entering the U.S.
Any non-citizen who represents "a political, social or similar group whose
public endorsement of acts of terrorist activity the secretary of state has
determined undermines the United States efforts to reduce or eliminate terrorist
activities" can also be deported or barred from entering the U.S.
Non-citizens can also be deported for supporting organizations that have not
been designated "terrorist" by the government. This makes a mockery
of the legal requirement of prior notification. It is unjust and profoundly
dangerous if people can be punished for actions that have never been officially
Spying on Attorney-Client Consultations
Attorney General John Ashcroft has issued regulations empowering his agents
to monitor lawyers' discussions with their clients in prison. This includes
conversations with pre-trial detainees who have not been convicted of anything,
immigration detainees, and material witnesses who aren't even accused of any
crime. This can all be done without the prosecutor having to obtain a court
order and without a court monitoring how the Justice Department uses the information
gained from such spying.
Unchecked Executive Powers
In important areas, the role of the courts is being increasingly reduced to
rubber- stamping executive branch actions. Dubbed "court stripping,"
this trend shrouds executive branch actions in greater secrecy and denies the
government's targets an opportunity to present their case to the public in open
At the same time, executive branch interference in the judicial process is
growing more blatant. In the case of Jose Padilla, government lawyers are arguing
that once the President, in his function as military commander-in-chief, designates
someone an "enemy combatant," the courts have nothing to say about
it and no right to review that designation. In other words, the executive branch
says it has the right to simply bypass all the usual legal and judicial
procedures and simply imprison people without charges or trials.
Jose Padilla, a U.S. citizen, was seized while traveling through Chicago's
O'Hare airport. He has already been held for over a year in a military prison
without charges, without any hearing, without the presentation of any evidence
against him, and without access to the outside (including family and legal counsel).
On June 23, 2003, Bush announced that he had designated a third "enemy
combatant," Ali Saleh Kahlah al-Marri. He had been scheduled to go on trial
next month in federal court in Illinois on criminal charges. Now he has been
removed from the court's jurisdiction, transferred to a military brig in South
Carolina, and cut off from all contact with the outside, including his lawyers.
The government can make any allegation against him it wants, without the need
to present evidence or give him an opportunity to respond.
This is a huge expansion of the executive's reach, right into the workings
of the courts and criminal justice system. Federal prosecutors can now threaten
to impose such detention, in order to force defendants to plead guilty in regular
In the case of Lynne Stewart, a respected New York criminal defense lawyer,
the court granted a prosecution motion that the Justice Department may do background
checks on "persons associated with the defense" and the court's own
personnel. The court also agreed that the Justice Department may then
determine whether the defense team can see classified documents that are submitted
to the court for review.
Stewart was charged with "terrorist conspiracy" (under the 1996 Anti-Terrorism
and Effective Death Penalty Act) solely for her work representing Sheik Omar
Abdel Rahman. By making those charges, the attorney general threatens the right
to counsel and a competent defense for anyone targeted in the government's "war
Grand Jury Fishing
Information sharing among federal and local law enforcement authorized by the
Patriot Act is another unprecedented incursion on what were thought to be basic
This is especially true in regard to formerly secret grand jury testimony.
Grand juries have almost unlimited power to subpoena testimony and records.
In the past they have operated under strict rules of secrecy, supposedly to
encourage witnesses to make full disclosures. Grand juries have often been used
to harass political activists, such as opponents of the Vietnam War and Puerto
Rican independentistas .
Several grand juries around the country have been investigating Arab-American
and South Asian communities since 9/11. Now, the Patriot Act allows disclosure
of grand jury testimony to federal law enforcement, including FBI and CIA, with
mere notice to a judge after the fact.
This places new, unchecked powers in the hands of government agents. CIA and
FBI agents can now, for instance, work through cooperative prosecutors and use
the powers of grand juries to compel testimony and records without judicial
oversight. The once-secret investigations of grand juries can become fishing
expeditions for government agents.
A Vision for the Future
"Things are bound to be vastly different...The America we have known will
not exist in the same way anymore."
Bob Avakian "The New Situation and the Great Challenges,"
March 17, 2002
Cases challenging various provisions of the Patriot Act and other government
actions since 9/11 are making their way through the federal courts. The record
is mixed so far: some victories have been won in lower courts, only to be overturned
on appeal. Decisive tests at the highest levels may lie ahead. Meanwhile, public
debate has started over the erosion of civil liberties, and alarm is growing,
including even among conservative groups.
Over 120 towns and cities across the country, and the state legislatures of
Hawaii, Alaska, Vermont, and New Mexico, have passed resolutions calling for
the repeal of the USA Patriot Act and non- cooperation with unconstitutional
federal government actions based on it.
Yet it has to be said that there is still far too little understanding of the
seriousness of this moment. There are a great many illusions about what these
changes will mean and how permanent they may prove to be. It is absolutely necessary
to look with open eyes at the powers the government has already acquired and
even greater powers that it is proposing and even demanding. It would be very
dangerous to assume that "the pendulum" will somehow swing back and
the extremism of this moment will prove temporary.
In February, an internal document of the Justice Department was leaked to the
press--outlining a draft for a new Domestic Security Enhancement Act, known
as Patriot 2. Their vision has many of the markings of a permanent police state.
To name a few of its proposals:
- stripping citizenship from people for allegedly supporting terrorism;
- authorizing secret arrests in international terrorism investigations until
charges are filed;
- expanding the Justice Department's power to issue administrative subpoenas
(doing an end run around the courts and grand juries) in both domestic and
international terrorism investigations;
- prosecuting U.S. citizens outside the U.S. for promoting terrorism abroad;
- revoking major elements of the Freedom of Information Act;
- forcing citizens and non-citizens alike to contribute their DNA to a massive
database, based on suspicion of terrorism;
- throwing out any remaining consent decrees limiting police spying;
- eliminating privacy protections for U.S. persons under FISA;
- creating new death penalties for certain terrorist crimes;
- eliminating the distinction between domestic terrorism (now supposedly treated
as a criminal matter) and international terrorism (which is also construed
as a foreign intelligence matter), thus extending all the powers of FISA to
alleged conspiracies on the home front.
Embarrassed by this leak, the Department of Justice tried to deny that this
draft legislation represented their actual plans.
But on June 5, Attorney General John Ashcroft went before the House Judiciary
committee. He defended all the extreme actions and changes that have been made
over the last two years. He insisted that all the Patriot Act powers should
be made permanent and demanded more powers for federal prosecutors and
police in matters related to this "war on terrorism"-- including expanded
power to hold suspects without bail, charge people linked to targeted groups
as "material supporters," and execute more of those convicted in "terrorist"-related
Intense as the changes have been, this government thinks they are just getting
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