The War on Civil Liberties Continues
he USA PATRIOT Act was passed on October
26, 2001, with only one U.S. Senator voting against it. The House
passed the Act by a 357 to 66 margin. Most Senators and Congresspeople
had not read it. Most Americans had never heard of it. Since then
it has become one of the most controversial pieces of legislation
in U.S. history and the centerpiece of U.S. secret investigation
and prosecution of its own citizens.
Sixteen sections of the Act were scheduled to expire on December
31, 2005, including the controversial Section 215, the socalled
library records provision. Other controversial sections were the
socalled “sneak and peek” features of Sec. 213, which
permitted the government to secretly search the homes of individuals
while they were away, without prior notice and without probable
cause. Only a pro forma warrant from a secret court was required.
Only delayed notification of a search was necessary, sometimes months
Sec. 505 gave the Justice Department the authority to issue National
Security Letters (like subpoenas) to obtain a wide variety of business,
financial, and Internet information about individuals from businesses
and other organizations, and to obtain membership lists of organizations
without court supervision. The letters were accompanied by gag orders
that prohibited the recipients from even mentioning them, let alone
Sec. 216 permitted the government to obtain the subjects of private
email communications and the places people visited while using the
Internet, such as Google searches, again without probable cause.
All Justice Department lawyers were required to do was present a
request to the Foreign Intelligence Surveillance Act court (FISA),
stating that the information was sought “in connection with
a terrorist investigation.” Proceedings before this secret
court are not adversarial. Only one side appears before the court
and is represented by a lawyer—the government. In 2004 the
FISA court did not deny a single government request out of 1,758
The claimed purpose of this activity was to investigate and prevent
terrorism. But it soon became apparent that the government envisioned
a far more expansive role for the PATRIOT Act: to prosecute ordinary
crimes, under lesser evidentiary standards; to gather information
about political groups; to infiltrate groups engaged in legitimate,
constitutionally guaranteed protests; to intimidate individuals
and groups who sought to protest at both the Democratic and Republican
national conventions; to keep protesters removed from the president’s
vision, behind cyclone fences; and to investigate and intimidate
the organizers of many innocent activities, such as art shows, school
drawings, auto shows, personal posters in homes, animal rights groups’
activities, and individuals and groups who protested the PATRIOT
Act and the Iraq war.
Wasted Effort, Wasted Money
he PATRIOT Act and the climate
of surveillance it spawned have led to some extraordinary and bizarre
actions. The Department of Homeland Security (DHS) and various federal
agencies, flush with funds to fight terrorism, have been throwing
money at phantom targets with little or no regard for its effectiveness.
Law enforcement agencies at state and local levels have only to
ask for funds to initiate programs that once would have been laughed
at, by merely claiming it’s about the security of Americans.
The DHS budget for fiscal year 2003 was $3.5 billion; $1.5 billion
was earmarked for grants to state and local preparedness activities
for equipment, training, exercises, and planning. States were required
to allocate 80 percent of these funds to local gov ernments.
Dillingham, a small hamlet in Northwestern Alaska, population 2,400,
recently applied for and received a Homeland Security grant for
$202,000 to “defend against a terrorist attack.” The money
was used to purchase and install 80 surveillance cameras, one for
every 30 residents of the town. Some of the locals chuckle at such
waste while others consider the cameras, which are ubiquitous, an
invasion of their privacy. But the town police chief, who applied
for the grant, defends their installation because terrorists, he
asserts, could backdoor the U.S. by entering through an obscure,
nowhere fishing village.
As it turned out the PATRIOT Act was the least of Americans’
worries about secret surveillance. Not content with the increased
powers of surveillance afforded by the PATRIOT Act, it was revealed
recently that as early as 2001 the president authorized the conduct
of secret surveillance of U.S. citizens completely outside any law
or judicial oversight whatsoever, including that of the rubber stamp
FISA court. This activity is conducted under the auspices of the
National Security Agency (NSA). Until recently the executive office
had refused demands from Congress to provide details of these activities,
claiming some sort of executive privilege. The White House has reluctantly
agreed to brief members of the Senate and House Intelligence committees,
but no one really expects it will be very forthcoming.
Retreating further from public disclosure, the government moved
recently to reclassify thousands of CIA and other documents that
previously had been declassified. An internal review concluded that
the documents were improperly reclassified.
On allegations that AT&T was cooperating with the government
to turn over customer records to the Justice Department, Justice
Department lawyers intervened in a lawsuit by the Electronic Frontier
Foundation against AT&T, even though the government was not
a party to the suit. The government claimed its intervention to
have the suit dismissed—on grounds that it threatened to reveal
government and military secrets—should not be construed as
an admission that the allegations are true.
Then it was revealed in
(May 11, 2006) that AT&T,
Verizon, and Bell South had been cooperating with the federal government
since shortly after 9/11 to turn over the telephone records of tens
of millions of Americans suspected of nothing. The purpose of this
data mining operation was not made clear, other than the usual administration
protestations that it is to protect the safety of Americans by trolling
massive amounts of data in search of calling patterns. What is clear,
however, is that these actions constitute violations of the privacy
rights of these telephone company customers and may violate federal
The PATRIOT Act has been used to prosecute ordinary crimes that
were not the original intent of the Act. But it also has been employed
to prosecute activities which can only be described as overreaching.
One example involved Sami alHussayen, an Idaho University student
who was a computer technician hired as a webmaster for the Islamic
Assembly of North America. AlHussayen’s duties included providing
web links to speeches by leading Muslim scholars, some of which
advocated violence, including suicide missions. He was charged under
Section 805 of the PATRIOT Act, which makes it a crime to provide
“expert advice and assistance” to a terrorist organization.
Al Hussayen was acquitted of all charges by a jury, but agreed to
be voluntarily deported.
Opposition to the PATRIOT Act
s the PATRIOT Act became
more widely known and understood, it raised increased concerns.
Various civil rights organizations and the public became involved.
There were numerous legal challenges to the Act and public interest
groups organized grassroots opposition to its worst features.
At the same time there was growing opposition to the general unconstitutional
use of surveillance of Americans from an important segment of the
legal community. On February 15, 2006, the usually staid American
Bar Association issued a strongly worded statement, overwhelmingly
approved by its legislative body, the House of Delegates. It calls
on the president to abide by constitutional checks and balances
and to end electronic surveillance within the United States that
is not in compliance with the Foreign Intelligence Surveillance
Last August the presidentelect of the American Bar Association (ABA)
stated that some of the federal government’s investigative
powers included in the PATRIOT Act are threats to constitutional
rights. He indicated that the ABA had taken four or five policy
positions in opposition to actions of the Bush administration that
violate due process rights.
In Congress an increasing number of re presentatives and senators
expressed serious concerns about the PATRIOT Act and the uses to
which it had been applied in violation of constitutional rights.
A “Right to Read” bill was introduced to counter the provisions
of Sec. 215. Other measures to correct specific abuses were proposed.
None of them got past committee.
passage of the Act more than 400 local and state governments, including
8 states, passed resolutions opposing it. Some even vowed not to
enforce it. California is the most recent state to enact a resolution
critical of the Act, on February 16, 2006, and is the largest state
to do so. Together these governments represent almost 85 million
Americans, nearly 30 percent of the population.
The American Civil Liberties Union (ACLU) and the Center for Constitutional
Rights (CCR) have sued the government for civil rights violations
in a number of instances and have seen some degree of success in
Opinion polls of lawyers, police chiefs, political scientists, and
constitutional scholars revealed grave concerns with the Act’s
encroachment on the civil liberties of Americans. Countless other
groups, organizations and individuals have taken positions opposing
many of the more egregious civil rights violations contained in
the Act. Public opinion polls have shown that Americans are increasingly
skeptical about the Act and concerned with government spying and
restrictions of civil liberties.
Four librarians from Connecticut, who were served with National
Security Letter subpoenas for library records of patrons and gag
orders in August 2005, finally went public when a federal judge
lifted the gag order. But it was first necessary for the ACLU to
file suit on their behalf.
So what has all of this opposition achieved? Unhappily, very little.
In some respects matters have gotten worse. By and large, the Administration
and the U.S. Congress have ignored the American people and the weight
of legal and scholarly authority in opposition to continuing civil
rights violations pursuant to the Act. Measures introduced in Congress
to curtail some of the Act’s most invasive features have died
in committee or been permanently tabled. Sixteen parts of the original
Act that were scheduled to expire on December, 31, 2005, unless
renewed, were renewed. One of these was Sec. 215, the socalled library
s Congress began to consider
renewal, several bills to limit certain features of the PATRIOT
Act gained the support of a bipartisan majority in the House. But
these were beaten back by the Republican leadership, under intense
pressure from the White House.
December 52 Senators challenged the Administration and filibustered
the PATRIOT Reauthor ization bill, in an attempt to reform some
of the Act’s worst features and protect the civil rights of
innocent citizens. But they were unable to muster sufficient support
to derail the reauthorization. Following an emergency temporary
extension of the Act because a congressional stalemate could not
be overcome before the congressional holiday recess in early March
the Reauthorization passed by 8911 in the Senate and by 280 to 138
in the House. It was signed into law on March 9, 2006. The president
issued a signing statement at the same time indicating that despite
the Act being what his Administration sought, he would not comply
with parts of it that require the Administration to report on uses
of the Act to the Congress. In the reauthorization the main controversial
provisions remain intact, including Sec. 213, Sec. 215 and Sec.
505, National Security Subpoenas. Key features are:
A new fouryear sunset date on three provisions;
Sec. 215, Sec. 206 (“John Doe” roving wiretaps, which
allow for multiple phones to be tapped with no required relation
to a terrorism investigation)
The socalled Lone Wolf provision (added in 2004) that authorizes
secret surveillance of nonU.S. citizens without a showing that
they are acting on behalf of a foreign government
FBI use of National Security letters, denominated National Security
Subpoenas (NSS) without a warrant was expanded and made more coercive
and more punitive. Any employee who discloses a records demand
made by the government can be imprisoned for five years
Customers or employees about whom sensitive personal records are
demanded can never be informed they are the target of an investigation
Recipients of NSSs may contact a lawyer and challenge the request
but may not challenge the restriction on their own free speech
rights for one year; the burden imposed on anyone challenging
a NSS is virtually insurmountable, as one must show bad faith
without being able to see the government’s records
An attempt failed in the Senate to shorten the delayed notification
of Sec. 213 Sneak and Peek searches to seven days, subject to
exceptions and extensions on request; no showing of any link to
terrorism whatsoever is required
The broad definition of domestic terrorism under the original
PATRIOT Act is now limited to specified federal terrorism crimes,
a modest victory for opponents of the broad sweep of the Act
Secret Service powers to limit access to “national security
events,” whether or not security is needed to protect any
official, are expanded; these are the socalled free speech zones
and anyone using false credentials or violating a designated SS
perimeter can be charged with a federal crime
New restrictions on the sale of overthecounter cold and allergy
medications, which contain a key ingredient used in the production
of methamphetamines, apparently on the assumption that terrorists
get high on meth before carrying out terrorist acts
Creates several new federal offenses linked to terrorism that
carry the death penalty
How to Spot a Terrorist
tate and local law enforcement agencies have
been eager to join in the terrorism investigation game with the
availability of large amounts of federal money. Soon after 9/11,
local officials in DeKalb County outside Atlanta, set up what they
described as the nation’s first local department of Homeland
Security. The county quickly obtained almost $12 million in federal
grants to fight terrorism. A police intelligence unit was established.
Among the intelligence unit’s accomplishments was the assignment
of two agents to tail the county executive, not because of any suspected
terrorist activities, but to discover if the executive was being
tailed by a district attorney investigator who was looking into
alleged misappropriation of county funds. Subsequently, one of the
unit’s plainclothes agents was assigned to photograph a group
of vegan activists passing out antimeat pamphlets. Police demands
for the group’s notes, which only contained the license number
of an undercover police vehicle that had been tailing them, were
challenged in a lawsuit filed by the ACLU.
In one of the more bizarre episodes in a continuing saga of paranoia
and silliness, the state of Texas issued a pamphlet alleged to help
the public identify potential terrorists. Some characteristics people
were advised to watch for were: the purchase of baby formula or
beer, the wearing of Levi jeans, carrying identifying documents
such as a driver’s license and traveling in the company of
women and children. This quickly narrowed the range of terrorist
suspects to about 80 percent of all men in the state.
Not to be outdone, a Virginia public employee training manual used
to assist public employees in identifying terrorists lists antigovernment
and property rights activists as terrorists and identifies binoculars,
video cameras, pads, and notebooks as typical terrorist tools. Aside
from the silly examples noted above, the Act has been used to:
Prosecute and imprison for 2 years a love sick 20yearold who posted
threatening messages on a cruise liner in hopes it would return
to port and she could be reunited with her boyfriend.
to prosecute a Connecticut librarian for refusing to disclose
the names of library patrons and what they read to the FBI and
then trying to speak out publicly about the matter. (The government
dropped its objection recently, for undisclosed reasons.)
multiple money launderers and drug dealers who could be prosecuted
under ordinary criminal statutes.
a student at the University of Idaho under Sec. 805 for supplying
web links to speeches by prominent Muslim scholars, some of which
advocated violence, to his employer, the Islamic Assembly of North
America. (Could national news media be prosecuted for providing
links to taped statements by Osama bin Laden?)
the home of Brandon Mayfield, a Portland lawyer, and an Islam
convert, and arrest and hold him for two weeks as a material witness
in the Madrid train bombings because the FBI mismatched his fingerprints
with those of one of the real Madrid bombing suspects. The PATRIOT
Act was misused to obtain the search warrant by claiming it was
in connection with a terrorist investigation when it was for a
purely criminal matter.
more than 30,000 National Security Letters a year for the last
data mining operations designed to profile millions of innocent
persons in a national data bank containing medical, Internet use,
travel patterns, video rental records etc.—just because.
the assembly of a realtime census of every visitor to Las Vegas
over a fourday period—about a million people—because
of intelligence that hinted at a terrorist attack in that city
on New Year’s eve. The government sought from casinos and
other businesses detailed hotel guest lists, car rentals and storage
unit rentals data on every airline passenger who landed in the
city, and every conceivable link, by shared address, utility account,
check deposits, and phone calls. When the investigation was halted
because of strong protests by casino operators and hoteliers,
the FBI retained all the data already collected.
FBI investigators six times to visit Sarah Bardwell, an intern
at a Denver antiwar group, in an apparent attempt to intimidate
her and other members of the group from attending political protests.
a fullcourt press by the FBI in the weeks leading up to the Democratic
and Republican National conventions to identify anyone with knowledge
of any person or organization planning any violent or disruptive
actions, by interviewing dozens of individuals in six states,
including past protesters, and members of their families and friends.
The FBI reports that cases in which it acted as the lead investigator
fell from 19,000 in fiscal year 2001 to 14,000 in fiscal 2005, with
convictions down from about 13,500 to just over 12,000. The number
of white collar crime prosecutions fell by more than 40 percent.
Drug cases also declined by 40 percent. The FBI blames the decrease
on terrorist investigations and convictions, which increased from
84 to 336 during the same period. Of 174 reported terrorism related
convictions, the Government Accountability Office found that threefourths
should not have been labeled “terrorism.” Immigration
and other lowlevel violations were being counted as terrorism.
Three years ago I argued that the trappings of a U.S. police state
already were taking shape, that civil liberties, once lost, are
seldom voluntarily restored. At that time, only 100 local governments
and one state, Hawaii, had come out in opposition to the PATRIOT
Act. Since then many others have followed suit and numerous civil
rights groups have led the opposition to the Act’s civil liberties
threats. It will require continuing and forceful demands by citizens
for our government to restore these lost liberties. The Congress
and the president have yet to get the message.
Cornehls is professor and director of the Law and Public Policy Graduate
Certificate Program at the University of Texas at Arlington.