11, 2001, marked a momentous and tragic event in U.S. history. It
also evoked a flood of patriotic fervor and an instant fear that
Americans now were vulnerable to international terrorism. Capitalizing
on these fears, the executive and legislative branches of the U.S.
government quickly enacted measures purported to counteract terrorism
or terrorist threats. One of the principal results of this activity
was an act titled “Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001,” or, the USA PATRIOT Act, passed and signed into law
by President Bush on October 26, 2001. The USA PATRIOT Act is one
of the most sweeping acts in modern American history because of
its potential impact on the civil liberties of U.S. citizens and
non-U.S. citizens residing in the United States
is hard to believe the Act could have been drafted, debated, and
passed in only 45 days. It is over 342 pages long and extremely
complicated. Given its complexity, and the fact the legislation
represented a wish list of new investigative and detention powers
long sought by law enforcement officials, it is more likely the
pro-law enforcement Administration had been drafting such provisions
for many months. Post-September 11 provided the perfect opportunity
to introduce them, with very little Congressional or public opposition.
The Senate voted for the Act 98 to 1 and the House 356 to 66. The
vast majority of Americans never even heard of it at the time.
Act is complex and difficult to grasp because of its multiple references
to and incorporation of other foreign intelligence acts, principally
the Foreign Intelligence Surveillance Act (FISA). Congressional
hearings were minimal and the legislation was not accompanied by
either a committee or conference report. Nonetheless, in the meager
hearings that took place, the Act was vigorously opposed by numerous
civil rights groups, especially the Center for Constitutional Rights
(CCR) and the American Civil Liberties Union (ACLU), who warned
that the Act was constitutionally defective and represented a broad
attack on many of the traditional civil liberties enjoyed in the
of the most significant features of the Act is a new, broader definition
given to terrorism. The definition now also includes “domestic,”
as contrasted with international terrorism. Section 802 states that
a person engages in domestic terrorism if they do any act “dangerous
to human life” that is a violation of the criminal laws of
a state or the United States, if that action appears to be intended
to: (i) intimidate or coerce a civilian population; (ii) influence
the policy of a government by intimidation or coercion; or (iii)
to affect the conduct of a government by mass destruction, assassination,
or kidnapping. Further, the act or acts must take place primarily
within the territorial jurisdiction of the United States.
definition is broad enough to encompass the activities of such organizations
as Greenpeace, Operation Rescue, Environmental Liberation Front,
protests about Vieques Island, and protests at the meeting of the
World Trade Organization. Civil disobedience, such as entering on
the premises of a U.S. military base, which is a violation of federal
law, would now be included within the definition of an act of domestic
terrorism. Disrupting a meeting or procession of vehicles as a means
of drawing attention to or attempting to influence an unwanted governmental
policy all could be considered acts of domestic terrorism. The implications
are huge and the Act can be used to prosecute political dissidents
of many stripes.
Act potentially violates at least six of the ten original Bill of
Rights: the 1st, 4th, 5th, 6th, 7th, 8th, and 13th Amendment. It
grants broad new powers to law enforcement and permits law enforcement
officials to side-step or avoid entirely many traditional controls
on the surveillance, investigation, arrest, and prosecution of civilians
residing in the United States.
first effects of the Act were soon felt when the government secretly
arrested and jailed more than 1,200 people in connection with its
investigation of the events of September 11. “Despite demands
from members of Congress, numerous civil liberties and human rights
organizations, and the media, the Government refused to make public
the number of people arrested, their names, their lawyers, the reasons
for their arrest, and other information related to their whereabouts
first failing, by means of the Freedom of Information Act (FOIA),
to obtain information about those arrested and held, multiple organizations
joined to file suit in federal district court in Washington, DC
Center for National Security Studies, et al. v. U.S. Department
). The government still refused to provide the requested
information, citing several exemptions under FOIA. A final order
in the case was not entered until August 2, 2002, which required
the government to divulge the names of almost all those arrested.
By that time most of those arrested had been either released or
of those arrested and jailed were Arabs and Muslims, who were cab
drivers, construction workers, and other laborers, with no more
than ordinary visa violations. Many of them were caught up in routine
traffic stops and other incidental contacts with law enforcement
officials. Some were incarcerated for up to seven months without
being charged or permitted to see their families. Despite the lower
court’s ruling, the government still refused to divulge the
names of those arrested and is appealing the decision.
a related secrecy issue, the American Civil Liberties Union, the
National Association of Criminal Defense Lawyers, and others sought
to have the Supreme Court review a secret appeals court decision
that broadly expanded the government’s power to spy on U.S.
citizens. The special, secret court was created in 1978 with the
passage of the Foreign Intelligence Surveillance Act. Its purpose
was to review and approve government wiretaps in foreign intelligence
investigations. All hearings and decisions of the court are conducted
in secret. Now, under the PATRIOT Act’s new definition of foreign
intelligence investigations, its role is being expanded to include
domestic investigations that the government claims are related to
foreign intelligence. The Supreme Court, in its first decision on
an issue related to the PATRIOT Act, refused the request to review
the secret decision of this special court.
subsequent months, the PATRIOT Act was challenged on other grounds.
The Justice Department used the Act to declare two American citizens
enemy combatants. They then were held as military prisoners, denied
the right to an attorney or access to civilian courts, and left
without a roadmap as to how they could challenge their imprisonment.
One was arrested in Afghanistan, the other in Chicago. The Justice
Department took the position that it was improper for courts to
inquire too deeply into the government’s classification of
a U.S. citizen as an enemy combatant. The District Court in Norfolk,
Virginia ruled that the two-page memo provided by the government
to explain its decision in one of these instances was inadequate.
However, that ruling was overturned by a three-judge panel of the
Fourth Circuit in Richmond in January 2003.
March 11, Manhattan U.S. District Judge Michael Mukasey stood by
his earlier, December ruling to allow one of the U.S. citizens,
Jose Padilla, who was arrested in Chicago, to meet with defense
lawyers. The Justice Department announced it would study the opinion
before deciding whether to appeal.
area in which the Act has been challenged concerns the Administration’s
decision to hold as many as 600 deportation hearings in secret.
It did this based on the Attorney General’s assertion that
those detained for deportation were suspected of having links to
terrorism. A federal district judge in New Jersey ordered that all
such deportation hearings be opened to the public unless the government
could show, on a case-by-case basis, there was a need for secrecy.
That decision also was overturned, by the Third Circuit Court of
Appeals in Philadelphia, which held that secrecy was warranted by
the grave threats to the nation.
the Sixth Circuit Court of Appeals in Cincinnati upheld a lower
court decision that such deportation hearings must be open, unless
good cause is shown for secrecy. That is now the law in Kentucky,
Michigan, Ohio, and Tennessee and makes it likely the Supreme Court
will consider at least one of these cases to resolve the conflict.
However, since most deportation hearings are heard in New Jersey,
the Cincinnati court’s ruling may be little more than a gesture.
told, through mid-March, 2003, the ACLU had filed or participated
as a plaintiff in 31 lawsuits and friend of the court briefs in
connection with government activities involving arrest, detention,
surveillance, and First Amendment violations, in which countering
possible terrorist acts was the ostensible reason for the actions.
The number of other government violations of civil liberties that
have gone unchallenged is inestimable.
from these court challenges, the PATRIOT Act insinuated itself into
the everyday lives of ordinary Americans in a variety of ways. While
the PATRIOT Act granted extensive new powers to law enforcement,
the Bush administration augmented and extended these powers through
the issuance of 11 new executive orders, 10 new interim agency regulations,
and 2 final regulations implemented by the Justice Department. In
this way the Administration sidestepped both the legislative and
judicial branches. Government investigations pursuant to the Act
are shrouded in secrecy, such as the closed deportation hearings,
the secret arrests, and the new power of the government to enter
and search the homes of private citizens without notifying them.
another government power under the Act requires courts to issue
warrants and orders based on the mere government assertion that
the order is sought in connection with a terrorism investigation.
These warrants and orders permit the FBI to question any person
about co-workers and other persons and to demand access to records
about such individuals. The Court order also warns the person questioned
not to reveal anything about the contact to anyone else, under threat
of criminal sanctions. As a result, it is difficult to determine
just what law enforcement officials using the Act are actually doing.
chilling effect of the Act on free speech and political dissent
has been felt already. Individuals have been questioned by the FBI
about their political beliefs for being openly critical of a possible
war against Iraq. In San Francisco, a 60-year-old retiree remarked
at his local gym that he thought any war with Iraq was not just
about fighting terrorists, but about corporate profits and oil.
He promptly received a visit at home from the FBI with questions
about his political beliefs.
FBI paid a call on a North Carolina college student for displaying
an “un-American poster” in her own home. The poster in
question was critical of President Bush’s stand on capital
punishment while serving as governor of Texas. While there the FBI
agents asked the student if she had any pro-Taliban materials.
agents spent an hour or more inspecting a car museum in Houston,
Texas based on a tip that artwork on display at the museum was “of
a nature threatening to the president.” There were no such
art works, but the agents questioned a museum docent about the artists,
who funded the museum, and who had visited the exhibit.
low ranking quasi-law enforcement officials have eagerly joined
in the suppression of individual First Amendment rights since the
passage of the Act. Recently, in a shopping mall in Guilderland,
New York, a 61-year-old lawyer and his son were wearing T-shirts
that read “Peace On Earth” and “Give Peace A Chance.”
They were ordered by mall security guards to remove the offending
shirts or leave the mall. The lawyer refused and was charged with
trespassing. Recently, Natalie Maines, the lead singer for the Dixie
Chicks, an all female country and western group, spoke out in opposition
to the Administration’s war policies in Iraq and criticized
President Bush. Subsequently, at a pro-war rally organized by radio
station KRMD, part of a radio chain, which banned the Dixie Chicks
from its play lists, a tractor was used to smash a collection of
Dixie Chicks CDs, tapes, and other paraphernalia, while a supportive
crowd looked on.
pro-war Bush rallies were sponsored around the nation by radio stations.
Called Rally for America, Clear Channel Communications organized
them. Clear Channel is a San Antonio-based organization that controls
more than 1,200 radio stations and whose vice chairperson, Tom Hicks,
is a close friend and political supporter of President Bush.
September 11, there have been innumerable instances of public officials,
quasi-public officials, and private citizens attempting to control
political speech. These range from banning public rallies and peaceful
marches to the cancellation of a Baseball Hall of Fame appearance
by Tim Robbins, Susan Sarandon, and Dale Petroskey, the president
of the Baseball Hall of Fame.
were other instances in American history when the government adopted
extraordinary measures to suppress unpopular political views or
arrest those suspected of being disloyal to the United States. During
the Civil War, President Lincoln suspended the writ of habeas corpus.
As a result tens of thousands of Americans suspected of being disloyal
to the Union were arrested and held without charges by the military.
During World War I, and the Red Scare, as many as 10,000 resident
aliens, targeted because of their political views, were arrested,
interrogated, jailed, and beaten to force them to sign confessions.
Raids were carried out in over 30 cities and some 500 “aliens”
World War II, President Roosevelt issued an executive order for
the forced internment of 110,000 persons of Japanese ancestry living
on the U.S. West Coast. Two-thirds of those placed in so-called
preventive detention, under harsh conditions, were U.S. citizens
against whom there was no evidence of collaboration with the Japanese.
the Cold War, in the late 1940s and early 1950s, when fears of communism
were fueled by certain U.S. political leaders and anti-Communist
hysteria was rampant, leaders of the American Communist Party were
criminally prosecuted and imprisoned under the Smith Act for their
political beliefs. The House Un-American Activities Committee carried
out a witch hunt of suspected Communists and so-called “fellow
travelers.” Thousands of Americans were subpoenaed and called
to testify about their own and other Americans’ political affiliations
and activities. Those who refused to testify were held in contempt
and imprisoned. In other instances, college professors and other
employees were forced to sign so-called loyalty oaths or lose their
Posner, a conservative federal jurist in Chicago, uses the above
instances to argue that the current measures taken under the PATRIOT
Act are not that worrisome. He urges the use of cost/benefit analysis
to weigh the relative importance of liberty vs. security at a time
of perceived threats to security. He believes that in time, when
the threats to security have waned, a balance between liberty and
security interests will be restored.
sanguine view overlooks the fact that the earlier restrictions on
civil rights were one-time phenomena, more specifically targeted,
and narrow in scope. In the case of the PATRIOT Act, the restrictions
are broad, indefinite, and far-reaching. The Administration insists
the war on terrorism is open-ended and will continue for many years,
if not indefinitely. Many of the emergency measures to combat the
threat of terrorism will likely become permanent and even more comprehensive.
Senator Orrin Hatch, a leading congressional supporter of the PATRIOT
Act, recently tried quietly to introduce amendments to strengthen
the Act and make it permanent.
there is a new bill, prepared by the Justice Department, entitled
the Domestic Security Enhancement Act of 2003. Dubbed PATRIOT II,
the new act seeks to further expand the government’s powers
to combat suspected terrorism and further encroaches on civil liberties.
According to David Cole, a Georgetown University law professor,
the proposed new act will expand the authority of law enforcement
and intelligence gathering agencies; reduce or eliminate entirely
judicial oversight of surveillance; permit wiretapping of Americans—without
any court order—for 15 days if the executive branch decides
there is a national emergency; authorize secret arrests; create
a DNA data bank based solely on unconfirmed executive suspicion;
create new offenses punishable with the death penalty; and seek
to strip Americans of their citizenship if they belong to or support
disfavored political groups. Perhaps as importantly, the draft bill
was produced in secret, without consultation with Congress. Senior
members of the Senate Judiciary Committee minority staff, who inquired
of the Justice Department about any such proposed legislation, were
informed that no such legislation was being planned only a few days
before the proposed bill was publicly revealed on PBS’s “Frontline
U.S. Attorney General, John Ashcroft, has swept aside all criticism
of the Administration’s current disregard for traditional civil
liberties by publicly proclaiming that extraordinary times call
for extraordinary measures. Ashcroft’s views are so extreme
that he has alarmed even the conservative right wing of the Republican
Party. While agreeing with his position on abortion and child pornography,
they are asking how they and their own organizations might fare
under the new rules affecting civil liberties. If another power
were to occupy the United States and institute the policies provided
for in the USA PATRIOT Act—secret arrests, secret trials, secret
investigations, secret depor- tations—the United States would
be considered a police state.
federal government is also enlisting American universities to assist
in maintaining surveillance of foreign students residing in the
United States. The Student and Exchange Visitor Program (SEVIS),
launched February 15, 2003, will involve almost 6,000 U.S. colleges
and universities in gathering and forwarding information about foreign
students to a national computer data bank. Along with other information
gathered, the schools must notify the Immigration and Naturalization
Service (INS) if a foreign student fails to enroll or is arrested.
Institutions that do not have INS approval to participate in the
data gathering system will be prohibited from enrolling new foreign
students. (On March 1, 2003, the INS was merged into the new Department
of Homeland Security and is now the Bureau of Citizenship and Immigration
past February, a Jordanian foreign exchange student, who confessed
to once having had thoughts of being a terrorist martyr, but subsequently
renounced those ideas, was summarily ordered deported within five
days by a U.S. immigration judge in Dallas. The student, three months
shy of earning a master’s degree in software engineering at
a Texas university, was under investigation by the FBI for undisclosed
being put into effect is another new plan, dubbed CAPPS II, in cooperation
with U.S. airlines. It will check the backgrounds of all commercial
passengers and assign them a threat level of red, yellow, or green.
Information about the passengers’ credit reports, bank account
activity, and cross checks with the names of persons on a government
watch list were to be instituted by Delta airlines about April 1,
2003. A comprehensive system that includes all airlines should be
in place by the end of the year.
comprehensive homeland security would cost trillions of dollars
and completely change the way Americans lead their lives. It would
include national identity cards, surveillance, and subject to search
rules in all public places, random searches of vehicles entering
airports and parking garages, compiling dossiers on all persons
who take scuba diving lessons, tracking the comings and goings of
subway riders electronically, and the list goes on and on. Virtually
everything anyone does, 24 hours a day, would be subject to constant
the security measures put in place in New York City are a portent
of things to come throughout the nation. There is a proliferation
of armed security guards, surveillance cameras, handbag searches,
metal detectors, electronic access cards, and bomb sniffing dogs
from the railroad terminals to the art museums. Heavily-armed police
officers, dressed like assault troops, patrol landmark buildings
such as St. Patrick’s Cathedral in midtown Manhattan. The costs
of these measures—and these are just the tip of the iceberg—are
potentially astronomical. The costs in terms of the loss of civil
liberties are incalculable.
the scope of the Act and the threats it represents to all U.S. residents
became more apparent, more than 100 municipalities and Hawaii, passed
resolutions in opposition to the Act. Some encouraged public employees
not to comply with the Act’s most invasive and civil rights
threatening features. One, Arcata, California, criminalized compliance
with the Act. But the main features of a U.S. police state are already
in place and it will take a major groundswell of public opposition
to undo them.
Cornehls has practiced law and is currently professor and director
of the Law and Public Policy Graduate Certificate Program in the School
of Urban and Public Affairs, University of Texas at Arlington.