THE PATRIOT ACT AT WORK

A lthough when the Patriot Act was passed, the American public was assured it would never be used against normal American citizens, the FBI raids of anti-war activists in 2010 demonstrated otherwise. And such concern takes on even more substance when viewed against the government's track record in such cases long before the 9/11 attacks. Following the WTC bombing in 1993, a Palestinian named Hany Kiareldeen living in New Jersey was held after being secretly accused of meeting with one of the men convicted in the bombing. Kiareldeen suspected the information came from someone with a personal axe to grind.
A federal judge, after reviewing the case, questioned not only the evidence against Kiareldeen but the manner in which it was presented. He wrote, “The [Immigration and Naturalization Service's] reliance on secret evidence raised serious issues about the integrity of the adversarial process, the impossibility of self-defense against undisclosed charges, and the reliability of government processes initiated and prosecuted in darkness.”
Niels Frenzen, a University of Southern California law professor, agreed with the judge, stating, “Without exception, when the government uses this one-sided evidence, it's gotten it wrong. Why should anyone think they are going to get it right now?”
Another example of what to expect under the new expanded powers of the federal government, already under fire for its questionable actions in the 1990s at Ruby Ridge and Waco, came at 5 a.m. in San Antonio, Texas, the day after 9/11 when heavily-armed federal agents raided the home of Dr. Al-Badr Al-Hazmi. Al-Hazmi was a 34-year-old radiology resident at the University of Texas Health Science Center who had been working in Lackland Air Force Base's military hospital in the days before September 11.
According to news reports, Al-Hazmi's home was ransacked by agents without a search warrant, his wife and young children held at gunpoint and later the doctor was thrown naked into a cold FBI holding cell without being charged with any crime. He was then flown to a New York prison where Al-Hazmi said he was beaten repeatedly during FBI interrogations. After a week, he was finally allowed to speak to his attorney and discovered the cause of his problems was that his name, a common name in the Middle East, was similar to that of two of the suspected 9/11 hijackers. Another week passed before Al-Hazmi was released and allowed to return home, still without having been charged with any crime.
And don't think that arrests such as those above could only happen to someone with a Middle Eastern name. Robert Lee “Bob on the Job” Lewis is a fervent Christian who has spent decades researching government scandals. He worked with airline lawyers during the investigation of the bombing of Pan Am Flight 103 over Lockerbie, Scotland.
In April 1998, Lewis was in a restaurant in Houston, Texas, regaling waiters with his knowledge of government skullduggery, including little-reported information on former President George H. W. Bush. Lewis admitted he made a remark about Bush along the lines of, “I’ll have his ass.”
Sitting in the restaurant was Secret Service Agent Tim Reilly who promptly placed Lewis under arrest for threatening the former president. The next day, in a short hearing, federal Magistrate Marcia Crone avoided any First Amendment issue and instead accepted the hearsay testimony of Agent Reilly. The impecunious Lewis was held for nearly a year in federal custody. His ordeal included being sent to the Fort Worth Federal Correctional Institution where he was placed in the same cell where Whitewater scandal figure James McDougal reportedly committed suicide. Lewis knew full well who McDougal had been and felt his placement there was a form of intimidation. Some months later, Lewis was transferred to a federal hospital in Springfield, MO, where he was involuntarily drugged until letters from some journalists and academic contacts protesting his drugging gained him a release. There was never a court trial or even an adversarial hearing in the case.
Secret evidence, closed trials, false imprisonment, warrant-less searches, involuntary drugging, the seizing of private property all seem like something out of the Nazi era, but fear has pushed many Americans into a passive and accepting mode.
Congressman Paul when asked what was wrong with the Patriot Act, replied, “The worst part of this so-called antiterrorism bill is the increased ability of the federal government to commit surveillance on all of us without proper search warrants.” Paul was referring to Section 213 of the Act entitled, “Authority for Delaying Notice of the Execution of a Warrant,” also called the “sneak-and-peek” provision that allows authorities to search personal property without warning.
Insight Magazine reporter Kelly Patricia O’Meara wrote that, “With one vote by Congress and the sweep of the president's pen, say critics, the right of every American fully to be protected under the Fourth Amendment against unreasonable searches and seizures was abrogated.”
Paul pointed out the obvious flaw in the idea that the government would act in a restrained and responsible manner when given this authority. “I don't like the sneak-and-peek provision because you have to ask yourself what happens if the person is home, doesn't know that law enforcement is coming to search his home, hasn't a clue as to who's coming in unannounced…and he shoots them. This law clearly authorizes illegal search and seizure, and anyone who thinks of this as antiterrorism needs to consider its application to every American citizen.”
By early 2006, the controversy over surveillance and privacy reached new heights when it was reported that President Bush had instructed the secretive National Security Agency (NSA) to electronically monitor Americans for signs of terrorism.
The potential for “Big Brother” surveillance had been there all along. As far back as 1975, Senator Frank Church, who performed a study of the NSA, warned, “That [the NSA] capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide.”
Church's warning proved true 30 years later when the news media reported an outcry over Bush's order to turn the NSA against Americans without seeking warrants from the special intelligence court (FISA) or any other court. It was also revealed in 2006 that the NSA had been secretly collecting phone call records of tens of millions of Americans using data from AT&T, Verizon and BellSouth, the three largest phone companies in the US. Moreover, the program was overseen by the new director of the CIA, General Michael Hayden, during his tenure heading the NSA.
Attorney General Gonzales publicly argued that such spying was within the legal rights of a wartime president, again demonstrating that the 9/11 attacks and subsequent War on Terrorism continue to be the foundation for the events of today. When members of the Senate Judiciary Committee asked to see how the Bush administration arrived at this argument, the White House denied requests for classified legal documents that were behind Gonzales’ defense.
Opponents to NSA warrantless spying—including some Republicans—claimed it not only was intrusive and a violation of constitutional safeguards on privacy but ineffective by overloading law enforcement agencies with bad leads. They also saw the surveillance program as a serious step to consolidating power in the executive branch. “The history of power teaches us one thing,” said former Reagan administration attorney Bruce Fein, “if it's unchecked, it will be abused.”
It was seen as ironic by knowledgeable persons that the 1978 Foreign Intelligence Surveillance Act, bypassed by Bush's orders, was passed in the wake of revelations of how President Nixon used the NSA to spy domestically on political enemies.
Even some of the 2006 revisions of the Patriot Act failed to correct portions that concerned both libertarians and congressmen. Rep. C. L. “Butch” Otter of Idaho was one of the three Republicans who found the entire act potentially unconstitutional from the onset. “Section 215 authorizes the FBI to acquire any business records whatsoever by order of a secret US Court. The recipient of such a search order is forbidden from telling any person that he has received such a request. This is a violation of the First Amendment right to free speech and the Fourth Amendment protection of private property,” commented Otter, adding, “[S]ome of these provisions place more power in the hands of law enforcement than our Founding Fathers could have dreamt and severely compromises the civil liberties of law-abiding Americans. This bill, while crafted with good intentions, is rife with constitutional infringements I could not support.”
The issue of penalties against persons who simply reveal that government intrusion is taking place was a cornerstone of controversy over renewal of the Patriot Act in late 2005.
Section 215’s “gag order” was retained by Congress after a compromise on the wording so that it remained effective only for a year after a secret search was conducted. One year, obviously, is too long for any American to wait to learn that their government is spying on them.
According to a New York Times editorialist, “The compromise also fails to address another problem with Section 215: it lets the government go on fishing expeditions, spying on Americans with no connection to terrorism or foreign powers. The act should require the government, in order to get a subpoena, to show that there is a connection between the information it is seeking and a terrorist or a spy.”
One feature of the Act as approved in 2001 had actually been introduced much earlier, in 1998, only to be struck down after a public outcry.
In this case during the Clinton administration, there was a brief furor over proposed new federal banking regulations that would require all banks to report to the government any large deposits or withdrawals or unusual activity on the part of the banking public. Euphemistically called the “Know Your Customer” program, it heralded a new era wherein law-abiding citizens might have to defend their financial matters before government agents. Under this program, banks would be required to create a profile of each customer and report any deviation from the profile to the feds. For example, consider a citizen who sold an unneeded car and deposited the cash in his bank account. Under this program, the bank computer would flag the transaction because this was an unusually large deposit based on the person's previous deposit record. Federal authorities would be notified and soon agents would be sent to interrogate the customer on the chance he or she might be a drug dealer or terrorist.
Rep. Ron Paul in 1998 had planned to introduce legislation to stop this intrusive program but an irate citizenry saved him the trouble. The schemers behind the proposal, the Federal Deposit Insurance Corp; the IRS and other agencies quickly backed off. Paul said quite prophetically, “Somehow, though, I imagine such action will not stop them, only slow them down.” Ron Paul was right. Almost all of the provisions of the “Know Your Customer” program can be found in the Patriot Act.
A clear example of the danger of such intrusive legislation came in early 2006 when Rhode Island retired schoolteacher Walter Soehnge and his wife tried to pay down an excessive credit card bill with a JC Penney MasterCard. They sent in a check for $6,500 to pay down their debt.
When the Soehnges found the money had not been credited to their account, they began to make inquires. They were told that when a payment is much larger than usual, Homeland Security must be notified and that the money is held until a threat assessment is made. The couple's money was eventually freed although they never found out how making a large credit card payment posed a threat to national security.
“If it can happen to me, it can happen to others,” Soehnge noted dryly.
Another of those who actually read the Patriot Act and were appalled at its unconstitutional provisions was Nadine Strossen, a professor of law at New York Law School and president of the American Civil Liberties Union from 1991 to 2008. Her main complaint was that the sweeping changes codified by the act have little or nothing to do with fighting terrorism
“There is no connection between the September 11 attacks and what is in this legislation,” Strossen argued. “Most of the provisions related not just to terrorist crimes but to criminal activity generally. This happened too, with the 1996 antiterrorism legislation where most of the surveillance laws have been used for drug enforcement, gambling and prostitution.” By 2005, the Patriot Act provisions had been expanded into cases far beyond terrorism.
According to Pittsburgh Star-Ledger writer Mark Mueller, “While the Justice Department says it does not uniformly track the Patriot Act's use in such cases, a reading of government reports and congressional testimony shows it has been used hundreds of times against the likes of drug dealers, computer hackers, child pornographers, armed robbers and kidnappers. In Washington State, investigators invoked the law to surreptitiously bug a tunnel that had been bored beneath the US-Canadian border by drug runners. In Las Vegas, prosecutors used it to seize the financial records of a strip-club owner suspected of bribing local government officials.
Reporter O’Meara noted that a similar antiterrorist act in England allows government investigators to obtain information from Internet Service Providers (ISPs) about their subscribers without a warrant. The British law is now being applied to minor crimes, tax collection and public health measures.
The ACLU has already filed a number of lawsuits trying to make the government accountable for its law enforcement activities under the Patriot Act. An ACLU press release stated the organization believed “it is critically important that the public learn how [the Justice Department] is using the vast new surveillance powers granted the government.” In their suits under the Freedom of Information Act, the ACLU wanted to know among other things:
• The number of times the FBI used pen registers [the numbers that a person has called is kept in a register] or trap and trace devices against US citizens or permanent residents as provided in Section 214 of the Patriot Act.
• The number of times the FBI has ordered libraries, bookstores or newspapers to divulge records or other tangible things as provided in Section 215 of the act.
• The number of United States citizens or permanent residents who have been subjected to new surveillance orders since the enactment of the Patriot Act.
The ACLU stated that it did not believe that the release of such aggregate, statistical information would jeopardize national security or any other legitimate government interest. Former ACLU President Strossen said her overriding concern with the Patriot act is the power that is being concentrated in the presidency. “The concern here is about the third branch of government,” she explained. “One of the overreaching problems that pervades so many provisions is reduction of the role of judicial oversight. The executive branch is running roughshod over both of the other branches of government. I find it very bothersome that the government is going to have more widespread access to email and websites and that information can be shared with other law enforcement and even intelligence agencies. So again, we're going to have the CIA in the business of spying on Americans…”
Strossen, Paul, Otter and others were pointed but polite in their criticisms of the Patriot Act. Others were not so courteous. “In light of the egregious evisceration of the Bill of Rights that this law undertakes, those who blindly supported and signed this blatantly unconstitutional act into law should be collectively condemned and charged with high treason to the Constitution and the people of the United States,” wrote columnist Doreen Miller for YellowTimes, an online publication of alternative news. “The USA PATRIOT Act creates and allows for a virtual police state with little to no judicial oversight. We, as a nation, are literally treading the razor's edge when it comes to flirting with the grave dangers inherent in giving up our rights for the empty promises of ‘safety’ and ‘national security’ masquerading under the guise of a ‘patriotic’ Patriot Act. Once we fall off that edge, reclaiming and reinstating our rights, authority and power as ‘We The People’ of this great nation might prove very difficult.”
Public concerns over the Patriot Act prompted renewed interest in civil rights and brought membership in the Americal Civil Liberties Union (ACLU) from about 200,000 to more than 500,000 by 2010.
In October 2004, the ACLU rejected $1.5 million from both the Ford and Rockefeller Foundations due to language in the donation agreements sounded like wording of the Patriot Act. ACLU officials said a donation stipulation denying funds for “underwriting terrorism or other unacceptable activities” was overly broad and ambiguous and a threat to civil liberties.
Karen G. Schneider, writing for the American Library Association website, wrote, “First of all, I’m a hawk. I believe we should be in Afghanistan, I’d like to see bin Laden oh, say, six feet under, and behind my bifocals, this middle-aged veteran cheers her colleagues in the armed forces defending our nation. However, the USA PATRIOT Act is treason pure and simple, and you need to know how and why, because it presents particularly pernicious issues for the users who rely on your Internet services. The Patriot Act is not antiterrorism legislation; it's anti-speech legislation, and is no more a direct response to the September 11 attacks than the Children's Internet Protection Act is a direct result of sincere concern by members of Congress about the safety of minors. The cold, cynical reality is that the Patriot Act is a bloated hodgepodge of speech-chilling law that lurked in congressional corridors not only before September 11 but in large part before the Bush administration. It was hustled into reality in the post 9/11 environment so quickly, secretively, and undemocratically that our Bill of Rights had been clocked with a one-two punch well before any of us realized it was under attack.”
Schneider's concern was clearly illustrated in an incident in which FBI agents showed up some time back at a Bloomsburg, PA, bookstore owned by Arline Johnson. The agents weren't tracking criminals, they were asking which customers bought copies of the Tom Clancy book, The Hunt for Red October. Johnson, who has been challenged for selling books on everything from Karl Marx to gay rights to dinosaurs, said she tells the “book police” that “it's important that people learn and read about everything, whether they believe it or not…It's not the government's job to tell me or anyone what they can read…I once lived and taught in Bulgaria and I don't like totalitarian regimes.”
Booksellers do indeed seem most vulnerable to the Patriot Act. In November 2001, the American Booksellers Foundation for Free Expression (ABFFE) sent a letter to its members stating, “Dear Bookseller, it begins. Last week, President Bush signed into law an antiterrorism bill that gives the federal government expanded authority to search your business records, including the titles of the books purchased by your customers… There is no opportunity for you or your lawyer to object in court. You cannot object publicly either. The new law includes a gag order that prevents you from disclosing ‘to any person’ the fact that you have received an order to produce documents…because of the gag order…you should not tell ABFFE that you have received a court order…you can simply tell us that you need to contact ABFFE’s legal counsel.”
Marsha Rummel of the Rainbow Bookstore Cooperative in Madison, WI, commented, “[T]he danger to booksellers is just one small part of this new landscape. We must collectively take a stand to defend our democratic rights, including the right to protest our government and oppose the war, and the right to read whatever we like.”
According to Newsweek, the ACLU had been searching for “Conan the Librarian,” some librarian who would be willing to serve as a test case against the Patriot Act, with little success. The act was being used by the FBI as an excuse for broad new powers to check library records, Internet use, business records and anything else that they claim might lead them to terrorists. “This statute trumps protections in place in 49 of 50 states,” observed Gregory T. Nogeim of the ACLU. The aforementioned “Conan the Librarian” may have come in the form of George Christian, executive director of the Library Connection in Hartford, CT, a small nonprofit concern that oversaw the computer systems of 27 area libraries.
In 2006, two special agents of the FBI Hartford office appeared in Christian's office with a National Security Letter (NSL) issued under Section 2709 of the Patriot Act which demanded that the Library Connection hand over to the agents all identifying personal information on all users of the 27 libraries for a particular day a few months earlier. The letter went on to state that Christian was ordered to comply with this demand and that he was not to inform anyone of the investigation. Shocked, Christian replied, “I believe this is unconstitutional and I am not going to give you anything.” One agent proceeded to point to a section of the letter which warned of fine and/or jail time for noncompliance and told Christian he had better think about what he was doing and get back to them immediately.
Calling a hasty meeting of the Library Connection's board, it was decided to fight. Joining with the ACLU, they filed suit against the attorney general of the US. Since their names could not be used under provisions of the Patriot Act, the suit originally was titled John Doe v. John D. Ashcroft , which later changed to John Doe v. Alberto R. Gonzales. Christian and his fellow board members and co-plaintiffs were branded by the Bush administration as “threats to national security” and were not allowed to attend their own court trial. They were forced to view the proceedings via close-circuit television. Fearful they had taken on the entire national security establishment of the US, they were apprehensive until they saw a “sea of librarians” sitting in the audience in support. They also got a view of Connecticut US Attorney Kevin J. O’Connor, who had been touring the state assuring the public that the Patriot Act would never be used against honest American citizens. O’Connor later would be appointed chief of staff to Attorney General Gonzales.
At the time of the trial in early 2006 the Patriot Act was up for reauthorization by Congress, so several legal maneuvers were thrown in the path of the librarians’ suit until the act was indeed continued in effect, after which in 2007 the National Security Letter provision of the act was struck down as unconstitutional by the Second Circuit Court of Appeals. The government appealed this ruling and arguments continued for the next several years. David Goodman, an investigative journalist for Mother Jones termed the librarians involved in this case the most “tenacious and courageous freedom fighters in this country.”
Since mid-2003, other librarians have flexed their freedom muscles by daily shredding library records to prevent federal agents from obtaining records of what books were being checked out. In a 2002 survey sent to libraries across the nation by the Library Research Center at the University of Illinois, the staffs of 219 libraries said they would cooperate with requests for information about patrons. But 225 said they would not.
“The effect of the USA PATRIOT Act upon businesses that loan, rent or sell books, videos, magazines and music CDs, is not to find and incarcerate terrorists—there are far more ways to investigate threats to the nation than to check on a terrorist's reading and listening habits—but to put a sweeping chilling effect upon constitutional freedoms,” wrote Online Journal writer Walter Brasch.
James R. Elwood, executive vice president of the International Society for Individual Liberty, an umbrella organization representing individuals and groups in more than 80 countries, stated that the “rule of law—enshrined in the Bill of Rights—which protects the innocent—must be strictly upheld and that the new ‘antiterrorist’ laws be repealed.”
By 2008, the continuing abuses of the Patriot Act were becoming more public. An investigation by the Justice Department's Inspector General Glenn Fine found that FBI headquarters officials sought to cover their informal and possibly illegal acquisition of phone records on thousands of Americans from 2003 to 2005 by issuing 11 improper, retroactive “blanket” administrative subpoenas in 2006 to three phone companies that are under contract to the FBI. According to this audit, officials at the FBI’s Counterterrorism Division signed the blanket subpoenas “retroactively to justify the FBI’s acquisition of data through the exigent letters or or other informal requests.”
This investigation followed up on a 2007 report that the FBI abused a key Patriot Act power, the National Security Letter. The investigation showed that FBI agents were routinely sending out flawed follow-up letters in which the Counterterrorism Division attempted to provide retroactive legal justification for telephone data the division had gotten on 3,860 phone numbers, obtained through verbal requests to the companies or false emergency requests.
According to Ryan Singel writing in Wired magazine, “The letters are related to still-secret contracts the FBI’s Communication Analysis Unit has with AT&T, Verizon and MCI. The contracts pay the companies to store subscribers’ phone records for longer periods of time and to provide faster service for FBI subpoenas. Those contracts began in May 2003, but the FBI refuses to release them. At least one of the letters was signed by an assistant director and none were cleared with the FBI’s general counsel.”
The inspector general's report also indicated that the FBI was increasingly targeting the American public and green card holders for scrutiny and eavesdropping, with more than 11,517 requests in 2006 targeting US persons, while non-citizens were targeted with 8,605 requests.
Under Section 112 of the Patriot Act as well as the 2006 Military Commissions Act, a “suspected terrorist” may be determined solely by certification by the attorney general on “reasonable ground” that he “believes” someone to be such. “Section 236A gives the attorney general unprecedented powers untouchable by any court, whereby he may detain a suspect in increments of up to six months at a time if he believes the suspect's release would threaten national security or the safety of the community or any person,” wrote columnist Doreen Miller, noting that the act states, “At the attorney general's discretion, no court shall have jurisdiction to review, by habeas corpus, petition, or otherwise, any such action or decision.” One might think that by the end of the first decade of the 21st century the problems and abuses of the Patriot Act, rushed into law in the panic immediately following the attacks of 9/11, would be smoothed out. But this was not to be.
For example, at 10 p.m. March 5, 2009, 12 armed FBI agents along with three local law enforcement officers stormed the Granville County, NC, home of Annette Lundeby looking for her son. After presenting a search warrant, they handcuffed 16-year-old Ashton Lundeby and led him away from his room which was festooned with American flags. Young Lundeby was held on a criminal complaint that he had made a bomb threat from his home on the night of Feb. 15. His mother told newsmen the family was at a church function that night and that the agents were acting on false information. “I was terrified,” recalled Lundeby's mother. “There were guns, and I don't allow guns around my children. I don't believe in guns.” She said she tried to tell the agents that someone had hacked into her son's IP address and was using this address to make crank calls connected through the Internet, making it look like the calls had originated from her home but her explanation was ignored. The raiders seized a computer, a cell phone, gaming console, routers, bank statements and school records, based on a federal search warrant. “There were no bomb-making materials, not even a blasting cap, not even a wire,” said Lundeby.
The teenager was taken to a juvenile facility in South Bend, ID. His mother, who could not afford to travel to Indiana, said she has had little access to him since his arrest. She said the Patriot Act stripped her son of his due process rights. “We have no rights under the Patriot Act to even defend them, because the Patriot Act basically supersedes the Constitution. It wasn't intended to drag your barely 16-year-old, 120-pound son out in the middle of the night on a charge that we can't even defend.”
Dan Boyce, a defense attorney and former US attorney not connected to the Lundeby case, told the media, “They're saying that ‘We feel this individual is a terrorist or an enemy combatant against the United States, and we're going to suspend all of those due process rights because this person is an enemy of the United States.’ There's nothing a matter of public record. All those normal rights are just suspended in the air.”
Amanda Lamb of WRAL-TV reported, “Because a federal judge issued a gag order in the case, the US attorney in Indiana cannot comment on the case, nor can the FBI. The North Carolina Highway Patrol did confirm that officers assisted with the FBI operation at the Lundeby home on March 5.”
“Never in my worst nightmare did I ever think that it would be my own government that I would have to protect my children from. This is the United States, and I feel like I live in a third world country now,” bemoaned Lundeby.
Apparently the trickle-down theory also works for the insanity of abuses of “national security” in public schools. On April 3, 2010, 12-year-old Alexa Gonzalez was arrested, led from her junior high school in Queens, NY, and detained at a local police precinct for hours. Her offense? Alexa was caught doodling on her school desk. The girl had used a water-soluble, erasable marker to send this message to some pals, “I love my friends Abby and Faith.” She added, “Lex was here. 2/1/10” and a smiley face. She admitted to making a mistake and expected detention or perhaps an afternoon cleaning desks.
In June, Alexa and her mother, Maraima Comacho, sued the New York City Education Department and the New York Police Department for $1 million in damages, citing excessive use of force and violation of the Alexa's rights in what Comacho described as a “nightmare.” Family attorney Joseph Rosenthal explained, “We want to stop this from happening to other young children in the future.” Legal papers filed by Rosenthal said the mother was not permitted to accompany her daughter to the precinct, where Alexa was detained in “an enclosed room” and handcuffed to a pole for more than two hours.
New York school officials later acknowledged that Alexa's treatment had been a mistake while police spokesman Paul Browne admitted “Even when we're asked to make an arrest, common sense should prevail, and discretion used in deciding whether an arrest or handcuffs are really necessary.” Such advice might be taken to heart by law officers across the nation.