Ashcroft’s Offensive


For
the past few months, Attorney General John Ashcroft has been on
a 19-city tour to convince the public that the USA Patriot Act (USAPA)
is the essential tool in the war on terrorism and poses no threat
to civil liberties. 

Ashcroft’s
offensive on the USAPA comes, in part, as a response to grassroots
efforts by dozens of community groups, bar associations, and others
to educate the U.S. public on the dangers posed by the USAPA. These
grassroots efforts have resulted in over 160 communities and 3 states
adopting resolutions condemning, in whole or part, the USAPA. Additionally,
the Bush administration has been receiving increased resistance
in Congress to its proposal to eliminate the December 31, 2005 sunset
provision to a number of USAPA sections, as well as outright legislation
to repeal some USAPA provisions, such as the delayed notification
“sneak and peak” searches. 

Finally,
the early release of a draft of the Domestic Security Enhancement
Act of 2003 (known as Patriot Act II) raised enough rancor in the
public and Congress to scuttle chances for enactment in whole, although
individual provisions have been introduced and passed by Congress.

The
USAPA, which is an acronym for Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, was enacted on October 24, 2001, a little
over a month after the tragedy of September 11 and a couple of weeks
after the initiation of the bombing campaign against Afghanistan. 

Congress
approved it overwhelmingly with virtually no debate. It was approved
at the height of the anthrax scare when members of Congress were
shut out of their offices and couldn’t study the legislation,
even if they wanted to be critical in a time of hysteria. The sheer
bulk of the act, at 342 pages, makes it clear that this was not
drafted in a few weeks after September 11. The USAPA is a compilation
of the wish lists of the FBI, CIA, the Justice Department, and other
executive departments, such as the INS. It includes provisions previously
rejected by Congress as too far reaching when the 1996 anti-terrorism
legislation was enacted. 

In
attempting to counter the reality of the USAPA, the Justice Department
has distorted or only told half the story. 

DOJ
Myth No. 1
 

The
Justice Department claims the USAPA has been effective in combating
terrorism. In an August 25 speech in Boise, Idaho, Ashcroft made
numerous victory claims, including bringing criminal charges in
terror investigations against 255 individuals and deporting 515
individuals with links to the September 11 investigation. 

REALITY:
The vast majority of the 255 arrests were based on pre-USAPA criminal
charges, such as credit card fraud and lying to an FBI agent. The
majority of the people deported never had ties to terrorism as the
FBI had cleared them of any terrorism connection prior to deportation.
Since the Justice Department refuses to tell the public, or for
that matter Congress, how many USAPA warrants, searches, and wire
taps, etc. have been initiated, we are unable to determine how the
USAPA has been used and the results of such usage. 

Furthermore,
as the FBI admitted after the September 11 attacks, and as the Congressional
9/11 study (at least that part we have been allowed to see) confirmed,
the problem was not lack of adequate intelligence, but failure to
communicate internally (ignoring some of the most obvious warning
signs), the lack of trained translators, and the information overload—a
problem very likely to increase with the massive surveillance powers
granted the government by the USAPA. 

DOJ
Myth No. 2
 

In
a September 9, 2003 speech in New York City, Ashcroft claimed, without
substantiation, “[t]he Patriot Act gives investigators the
ability to fight terror using many of the court-approved tools that
have been used successfully for many years in drug, fraud and organized
crime cases.” 

REALITY:
This is more than a little disingenuous. When the FBI seeks to get
a warrant to tap the phone of a mobster, they must present sufficient
evidence to a judge that there is probable cause that a crime is
either being or about to be committed. This probable cause standard
is the bedrock of the Fourth Amendment protection against unreasonable
searches and seizures.  

Under
the USAPA, to get a warrant in a terrorism investigation to wiretap
a phone, monitor email and Internet usage, search a home or business,
or seize documents, all that needs to be shown is that combating
terrorism is a significant purpose of the surveillance, a standard
far below the Fourth Amendment’s probable cause standard. 

Furthermore,
the warrant under the USAPA is issued by a secret court not subject
to the same rules as other courts. The secret courts were established
by the Foreign Intelligence Surveillance Act of 1978 (FISA) with
the sole purpose of providing tools to ferret out foreign spies.
The USAPA substantially amended FISA and now allows the same relaxed
surveillance rules to be used against anyone, including United States
citizens, in terrorism investigations that, by their very nature,
are broad and virtually without limitation. 

Under
the USAPA, applications for certain warrants submitted to the FISA
court can’t be turned down as long as the application is properly
completed. Not that the FISA court has ever turned down a warrant
application anyway. From 1978 until 2002 the FISA court never turned
down a warrant request. In 2002, an application for a warrant was
rejected when the judge discovered 66 instances of FBI lying in
warrant applications. However, the Justice Department appealed the
rejection to the never- before-used FISA Court of Appeals. In a
proceeding where no third party was allowed to submit testimony
or briefs, the FISA Court of Appeals overturned the lower FISA court
and issued the warrant. 

DOJ
Myth No. 3
 

Ashcroft
claims the USAPA seizures, “sneak and peak” searches,
and related powers will not be used against “ordinary Americans.”
In a blast against the American Library Association, Ashcroft defended
USAPA Section 215, which allows search of library records and book
purchases, by claiming this power has always been available through
grand jury subpoenas, that the FBI has no interest in or resources
to track citizen’s library usage, etc. and that the warrants
can’t be used against U.S. citizens solely based on First Amendment
activities.

REALITY:
Section 215 has been controversial from the beginning, in large
part due to the vigilance of the American Library Association. Warrants
for the seizure of records under Section 215 are issued by the same
FISA court using the lax surveillance standards discussed above.
One of the more insidious aspects of these records seizure warrants
is that the person served, who is not likely to be the target of
the investigation, is not allowed to inform the target or anyone
else— even his or her co-workers or supervisors—of the
existence of the warrant or what materials were provided to the
government. 

Ashcroft’s
claim that the USAPA has warrant powers already contained in grand
jury subpoenas is patently misleading as a grand jury subpoena is
based on probable cause of criminal activity, while a USAPA warrant
is issued by the secret FISA court based on the lower standard.
Further, if federal prosecutors already have this power, what is
the purpose of the USAPA? 

The
Justice Department belies its own claim that it doesn’t want
to investigate library usage. Its website (www.lifeandliberty.gov)
claims that terrorists have frequently used libraries to plan and
carry out activities. However, on September 18, 2003, Ashcroft issued
a report saying the powers have never been used. So why is it needed
in the USAPA? 

While
the USAPA does restrict use of the warrants solely for First Amendment
activities, this only applies to the target of the investigation,
not those whose records are sought. Once the government has begun
a legitimate investigation, the USAPA allows it to obtain records
on an unlimited number of citizens without a showing of any illegal
activity. 

Additionally,
the use of the word “solely” further limits the restriction
on investigation of free speech protected activities. 

DOJ
Myth No. 4
 

Ashcroft
claims that the new crime of domestic terrorism does not apply to
peaceful dissent and only applies to “true” terrorism.
The DOJ website ridicules groups raising any alarm about use of
this provision against peaceful dissent. 

REALITY:
The USAPA creates a new crime of domestic terrorism, a concept so
fluid that almost all acts of political expression and resistance
could be included in its definition. Section 802 of the USAPA states,
“Domestic terrorism means activities that (A) involve acts
dangerous to human life that are a violation of the criminal laws
of the U.S. or any state; (B) appear to be intended (i) to influence
policy of a government by intimidation or coercion; or (ii) to affect
the conduct of a government by mass destruction, assassination,
or kidnapping; and (B) occur primarily within the territorial jurisdiction
of the U.S….” 

This
definition blurs ideology and terrorism. Any group that uses direct
action, civil disobedience, or confrontational political action
could fit under this definition. Even the American Bar Association
Task Force on Terrorism and the Law has objected to the subjective
nature of this provision since the targeted acts only need to “appear
to be intended” to influence the govern- ment. 

The
Justice Department has not been able to assure us that the law won’t
be used against civil disobedience, for example protesting what
will surely be Bush’s next imperial adventure. The Justice
Department website says that this law will not be used for dissent
that does not break laws, implying that it can be used if laws are
broken even if such unlawfulness is non-violent. Also, there are
civil penalties for individuals and organizations convicted of domestic
terrorism. U.S. Code Title 18 Section 981(a)(1)(G) provides for
forfeiture of “all assets of any individual, entity or organization
engaged in planning or perpetuating any act of domestic or international
terrorism (as defined in Section 2331)…and all assets, foreign
or domestic, affording any person a source of influence or control
over any such entity or organization….” 

History
shows us that we can have little trust in the FBI and the Justice
Department. The FBI’s COINTELPRO (Counter Intelligence Program)
in the 1960s and 1970s used every dirty trick in the book to disrupt
anti-war, feminist and black militant groups. If the FBI was willing
to violate civil rights without any law in support, what will it
do with the powers granted by the USAPA?

DOJ
Myth No. 5
 

In
speeches made in New York (September 9), Boise, Idaho (August 25),
Washington, DC (September 15), and elsewhere, Ashcroft claims that
the USAPA “breaks down the wall” and allows information
sharing and that this information sharing has been crucial in thwarting
terrorism. 

REALITY:
Claims of success due to the breaking down of the wall are dubious.
First, it should be noted that the USAPA does not eliminate any
“wall.” It allows for sharing information among a wide
range of federal agencies of “foreign intelligence and counter-in
telligence” obtained through grand jury investigations. A court
must only be “notified” of this sharing of information;
it does not require court approval. Grand jury testimony is given
without benefit of legal counsel for the person subpoenaed to testify
and without cross- examination. This power can only be defied at
the risk of imprisonment for the life of the grand jury. The ability
to compel testimony before a grand jury is thus one of the federal
government’s greatest powers. The USAPA puts that power in
the hands of FBI or CIA agents working together with cooperative
U.S. attorneys to subpoena people they are interested in, whether
or not there is any suspicion of criminal behavior. 

Testimony
compelled under these circumstances can also be highly unreliable.
In the past, grand jury testimony was confidential with few court-approved
exceptions and it was supposed to be used solely as the basis for
criminal charges that were ultimately tried in a court of law. Under
the USAPA, it can be disseminated broadly without ever being tested
in an adversarial proceeding. 

Any
other “wall,” primarily between the CIA and FBI, restricting
intra-agency information sharing is the result of cultural and bureaucratic
differences and jealousies. The USAPA did not break down those barriers

The
wall between intelligence gathering and law enforcement exists for
a purpose. Along with the exposure of the COINTELPRO abuses in the
late 1970s, the Senate Select Committee on Intelligence (commonly
known as the Church Committee after its chair, Sen. Frank Church
of Idaho) proposed legislation to stem abuses resulting from intelligence
gathering on lawful organizations. The legislation was never adopted,
but the FBI did adopt guidelines on domestic intelligence gathering,
i.e., spying. Ashcroft has repudiated these guidelines and encouraged
the FBI to spy on mosques and Arab and Muslim American organizations. 

Elimination
of this wall between intelligence gathering and law enforcement
presents a greater threat to civil liberties. Prior to the 1996
anti-terrorism act, information gained from surveillance authorized
by a court, pursuant to FISA, could be used in a criminal prosecution
only against a “foreign agent.” Under FISA, as amended
by USAPA, warrants for wiretaps, searches, seizure of records, etc.
can be obtained if gathering such intelligence is a “significant
purpose” of the surveillance. This is far below the standard
mandated by the Fourth Amendment to the Constitution, which requires
“probable cause” of criminal activity. 

DOJ
Myth No. 6
 

Ashcroft
claims that many of the complaints, such as the post-September 11
roundup of Arabs and Muslims, the detentions at Guantánamo,
the enemy combatant rules, and the registration of Arab and Muslim
men, are not part of the USAPA. 

REALITY:
The detention and deportation of non-citizens suspected of terrorism
was initially conducted under Ashcroft’s authority, but later
incorporated into the USAPA. That is another instance of covering
up the extent of the USAPA’s assault on civil liberties. Ashcroft’s
claims that these provisions are not in the USAPA ignores the fact
that the federal government has tied all these provisions together
as part of the “war on terrorism.” But beyond that, the
USAPA has become the lightening rod for uneasiness and apprehension
over the expanded powers granted the government in the wake of September
11. 

It
is the atmosphere that has been created not only by the USAPA, but
also by the “either you are with us or with the terrorists”
attitude, implying that opposing Bush’s policies is an unpatriotic
act. Bush, Ashcroft, and laws such as the USAPA have created an
atmosphere of repression and fear, both among immigrant communities
and those who dissent to war without end. Community resolutions
opposing the USAPA are one form of resistance to the assault on
civil liberties. Other, more active, resistance, such as destruction
of library records as soon as materials are returned, is also growing.
In any case, Ashcroft’s offensive is doomed to failure as the
lies, half-truths, and myths promulgated by the DOJ continue to
be exposed and more people campaign for the repeal of the USAPA.
 


Jeffrey Frank
is an activist and attorney with the National Lawyers Guild.