New USA-Patriot Act allows police agencies to target dissidents of all kinds

New USA-Patriot Act allows police agencies to target dissidents of all kinds
Alan Graf, National Lawyers Guild, Portland Oregon
November/December 2001

The USA-Patriot Act stands for "the Uniting and Strengthening By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." The Act was signed into law by George Bush on October 26, 2001. It provides new powers to law enforcement, some of which seriously infringe upon the civil rights of American citizens and immigrants:

The following is a summary and commentary concerning some of the provisions of the Act.

1. The Act Allows for Detention and Deportation of People Engaged in Innocent Associational Activity.

The Act permits detention and deportation of non-citizens who provide "assistance" for lawful activities of a group the government claims is a terrorist organization, even if the group has never been designated as such. See Section 411 of the USA Patriot Act which adds a new provision to INA section 212(a)(3)(B) of the Immigration and Naturalization Act.

Under this provision the Secretary of State (or his designates) can designate any group that has ever engaged in violent activity as a terrorist organization. This designation would make the group's non-citizen members inadmissible to the U.S. and would make payment of dues or the lodging of a member of the designated group a deportable offense for non-citizens.

This provision can apply retroactively. It could conceivably be used to deport someone who contributed to Greenpeace in 1980 because Greenpeace at some point used "violence" against property as part of its tactics.

The Act places an affirmative duty on the accused immigrant to prove that they did not know that the organization that they furnished assistance to was a terrorist organization. The burden of proof which is historically the state's burden, has been shifted to the accused.

The Act does not contain a notice requirement that the government must list which groups it regards as terrorist before certifying that the immigrant illegally supported a terrorist organization or supported an organization that provided "material support" for terrorist activities. Under this law, the government can effectively arrest someone for a minor immigration violation, discern which groups that person has helped, and then subsequently designate those groups as terrorist organizations, finding that the arrested person has violated the Act.

The ACT amends the definition of terrorist activity, within the immigration section of the Act, so that it now covers use of "a weapon or other dangerous device...to cause substantial damage to property" even if such damage created no danger of injury. INA section 212(a)(3)(ii)(V) as amended by the ACT Section 411.

Under this definition, groups who engaged in minor vandalism, or even blocking traffic during a protest could be deemed terrorist organizations. Aid to the groups such as the Northern Alliance could be deemed assistance to a terrorist organization. The Secretary of State is given broad discretion in deciding whether to certify a group as a terrorist organization. Section 411.

Given the sordid history of the FBI with dissident groups which includes the U.S. government's oppression and internment of the Japanese and McCarthyism, it is likely that the government will use these broad powers to suppress legitimate dissent, classifying such activities as terrorism or supportive of terrorism.

During the McCarthy era, Congress enacted the McCarren-Walter Act which barred non-citizens from entering this country on the basis of their advocacy of Communism. The new Patriot Act resurrects this prohibition but makes it even broader. Section 411, amending INA section 212(a)(3)(B) permits the Secretary of State to bar a legal immigrant from returning to this country if the Secretary determines that the immigrant's advocacy undermines our anti-terrorism efforts. In other words, a non-citizen who leaves the country and advocates for Palestinian rights or an end to the bombing of Afghanistan could be denied re-entry to the this country.

2. The Act Permits Indefinite Detention of Immigrants Who Are not Terrorists

Section 412 requires that immigrants certified by the Attorney General be charged within seven days with a criminal offense or an immigration violation. Immigrants who are no found to be deportable for terrorism but have an immigration status violation, such as overstaying a visa, could face indefinite detention if their country refuses to accept them. Detention would be allowed on the Attorney General's finding that their activities pose a danger to national security. Detention could be indefinite on these grounds for review by the AG every six months.

There is no requirement that indefinite detainees ever be given a trial or a hearing in which the government would have to prove that they are in fact terrorists. Nor would other important procedural protections apply, such as the requirement of proof beyond a reasonable doubt (as in criminal proceedings), or proof by clear and convincing evidence (as in a deportation hearing). Instead indefinite detention would apply merely on the basis of vague and unspecified allegations of threats to national security. The only review of these indefinite detentions would be through an application for habeas corpus proceedings filed with the Supreme Court, the Court of Appeals in the District of Columbia or any other district court having jurisdiction to entertain the petition.

In sum, the Act allows the government to imprison someone indefinitely who has never been convicted of a crime.

3. The Anti-Terrorism Bill Limits Judicial Oversight of Telephone and Internet Surveillance

The Act allows law enforcement to obtain a pen register or a trap and trace order requiring the internet provider to reveal the addresses of internet communications that a "suspect" has communicated to or engaged. The FBI is not supposed to look at the content part of the message only the address part of the message. In other words we are supposed to "trust" the FBI to ignore information that will be in front of them. The FBI can get an order from a judge alleging that the information to be obtained is "relevant to an ongoing criminal investigation." The Judge MUST grant the order upon receiving this certification. See section 216. The judge has no choice. The order will also allow law enforcement to determine what websites a suspect have visited. This would be like giving law enforcement the power, based on its own certification, to require a librarian to report on the books you have perused while visiting the library.

This order would also give the FBI or state law enforcement agencies (Section 216(b)) access to non-target communications as well. In other words if a "suspect" sent you an email or you sent that suspect an email, then your communications would be subject to the blanket court order as well. The trap and trace orders also apply to phone calls as well.

These orders can be issued by any judge in any jurisdiction. The orders will pertain nationwide. That means that the FBI can obtain an order in Selma Alabama that would be applicable to any jurisdiction nationwide, (for example, Portland, Oregon). In order for the accused to challenge the warrant, the accused would have to appear in a Selma court, an impracticality for many people in different localities.

4. Sharing of Information with the CIA by Local Law Enforcement and the FBI.

The Act under Section 203(a) would permit law enforcement agents to provide to the CIA foreign intelligence and counterintelligence information that was revealed to a grand jury during an unrelated criminal investigation. No court order would be required. The information revealed is not limited to the person in question.

The Act permits a vast array of information gathering on U.S. citizens from school records, financial transactions, internet activity, telephone conversations, information gleaned from grand jury proceedings, and criminal investigations to be shared with the CIA.

The term "foreign intelligence information" has been redefined by Section 203(a) which includes "information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to the national defense of the security of the United States or the conduct of the foreign affairs of the United States."

This is a key and determinative definition that will serve as the underpinning in the interpretation and construction of the Act by courts of law. If information sought is defined as "foreign intelligence" the Act will allow law enforcement to secure unchallenged warrants from a FISA court. See below for an explanation of FISA. The Act also allows the sharing of this information between all law enforcement agencies locally and nationally.

This definition of "foreign intelligence" would involve the activities and communications of the peace movement and any information disseminated or produced by dissidents to U.S. foreign policy. Information about peace movement groups could be shared with any other agency including the CIA. This information could be gleaned from criminal investigations or from phone taps or emails.

5. Sneak and Peek Warrants

The Act would allow law enforcement agencies to delay on giving notice of a search relating to criminal activity (not confined to terrorism) if the law enforcement agents assert to a court that the investigation would be jeopardized if notice is given. Under previous law, if agents planned to search your house or office, notification was required so that the suspect could challenge the warrant if faulty, or be at the location to make sure that the search did not exceed the limitations of the warrant, e.g. warrant limited to looking for stolen furniture precludes search of computer files.

Now, law enforcement agents can search your house and/or office along with your files and are not required inform you that they were there until much later. They can then share that information with the CIA if it relates to "foreign intelligence" or information that "concerns the foreign affairs of the United States." This is effectively legalizes and encourages law enforcement to repeat the activities of COINTELPRO, when the FBI searched the offices of CISPES, a non-violent organization committed to peace in El Salvador and opposed to U.S. foreign policy. See Section 213 of the Act.

6. Warrants and Searches Conducted Under the Foreign Intelligence Surveillance Act (FISA)

The Act amends FISA (the Foreign Intelligence Surveillance Act) to allow the FBI to secretly conduct a physical search or wiretap primarily to obtain evidence of a crime without proving probable cause of crime. As long as the FBI asserts to a FISA court that the purpose of the search is "intelligence", the court will grant the warrant even if the person is an American citizen as long as the sole purpose of the search is not to investigate activities protected by the First Amendment. The FISA court will issue an order to the FBI if the FBI asserts that the warrant is for a foreign intelligence investigation. Again, keep in mind that the term "foreign intelligence" as defined by the Act includes communications that criticize American foreign policy.

In other words, the FBI does not have to present evidence of a crime, or criminal activity to obtain a warrant. It only needs to allege that the activity to be investigated is connected to foreign intelligence. Section 215 would grant FBI agents across the country breathtaking authority to obtain an order from a FISA court or any federal magistrate requiring any person to produce any books, records, documents or items. The judge exercises no discretion: he must issue the order upon receipt of the FBI application asserting that it seeks the records in connection with a foreign intelligence investigation. The records can include medical records, mental health records, financial records, records of employment-based drug testing, and immigration records maintained by non-profit agencies.

While Section 215 bars investigations of Americans solely on the basis of First Amendment, it permits investigations based upon First Amendment activities tied to other conduct that relates to international terrorism or intelligence activities.

7. Financial Institutions Will Monitor Daily Financial Activities and Report "Suspicious Activities" Without any Risk of Liability and Without any Notice to the Person Reported.

Section 351 of the Act encourages financial institutions to disclose possible violations of law or "suspicious activities" under any contract or legally binding agreements. The financial institution is prohibited from notifying the person involved that the institution made such a report. This section allows financial institutions to determine what activities are "suspicious" as the term "suspicious" is not defined in the Act. There is no judicial review of these reports.

Through this provision, the CIA would be put back in the business of spying on Americans, and law enforcement agencies would have a wide access to a range of personal information including individual credit reports without showing good cause as to why that information is relevant to a particular investigation.

Conclusion
In this lawyer's opinion the Act contains many provision that demolish established civil liberties. Many of the provisions of the Act are unconstitutional. Many of the provisions reduce the balance of power between governmental institutions shifting that power from the courts to law enforcement. However, the courts have shown a reluctance in protecting liberties guaranteed by the Bill of Rights in times of war deferring to the importance of "national security" over the protection of civil liberties. Of note, a few days after September 11, Supreme Court Justice Sandra Day O'Connor commented that our civil liberties might have to be curtailed to reinforce our national security.

I wish to thank the ACLU for their summary and commentary of the Act--at www.ACLU.org--parts of which were used for this report, and Congressman David Wu's staff for furnishing the entire text of the Act to my office for review.

Alan Graf is Co-Chair of the Policy Board of the Portland Chapter of the National Lawyers Guild, 1020 SW Taylor St., Ste 370, Portland, Oregon 97205. (503) 452-2375. This article is not copyrighted.