The Missing Patriot Debate | The Nation


The Missing Patriot Debate

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Not only are these aspects of the Patriot Act not subject to debate, but Congress has just passed still more onerous immigration provisions as part of the Iraq War appropriations bill. This legislation makes the Patriot Act look humane. It makes deportable any foreign national who ever joined or made a donation to any organization of two or more people that ever used or threatened to use a weapon. It is no defense to prove that one's support or membership was not intended to further terrorism or violence. This law would retroactively make deportable every foreign national who ever donated to the African National Congress, the Israeli military, Afghanistan's Northern Alliance, the Nicaraguan contras or the Irish Republican Army. It would fully resurrect the "guilt by association" approach of the 1952 McCarran-Walter Act. So, far from checking abuse of the immigration power, Congress has done its best to encourage it still further.

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David Cole
David Cole
David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture...

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In ruling that police may not search cellphones without a warrant, the Court brought the Fourth Amendment into the twenty-first century.

That was when the Bureau of Investigation—the forerunner of today’s FBI—first opened a file on the magazine.

Also not up for reconsideration is a Patriot Act section that authorizes the Treasury Secretary to freeze the assets of any entity in the United States without evidence of wrongdoing, simply by claiming that it is "under investigation" for potential violations of a law barring material support to groups or individuals designated as "terrorist," a term not defined in the law, meaning it is whatever the Treasury Department says it is. The same provision also says that if an entity challenges a freeze order in court, the government can defend it by presenting secret evidence to the judge behind closed doors. The Treasury Department has used this power to freeze the assets of a half-dozen Muslim charities. It's possible that all were actually fronts for terrorism; but it's equally possible that all were legitimate humanitarian organizations. We'll never know, because the Patriot Act shields the government's action from any challenge in open court.

Still another Patriot Act provision criminalizes speech by making it illegal to provide "expert advice" to designated "terrorist organizations." It is no defense under the law that one's advice had no connection to terrorism, or even that one's advice was designed to discourage the use of violence. I represent a human rights organization in Los Angeles, the Humanitarian Law Project, which had been providing human rights training and advice to a Kurdish group in Turkey until the group was designated as "terrorist." It then became a crime, the government argues, for my clients to continue to advise the Kurdish group to use lawful, nonviolent human rights advocacy to resolve their disputes with the Turkish government. This provision, too, is not subject to sunset, even though a US district court has declared it unconstitutional. (In the national intelligence law enacted in December, Congress amended this provision, but only to define "expert advice" as advice based on "specialized knowledge"--a standard that continues to criminalize human rights training.)

So the Patriot Act imposes guilt by association, punishes speech, authorizes the use of secret evidence and allows detention without charges--yet none of that will be subject to the Patriot Act debates. Nor will the debates address the civil liberties abuses committed by US law enforcement agencies or the military outside the Patriot Act--such as the incommunicado detention, without charges or hearings, of hundreds of "enemy combatants" around the world; the use of immigration law to launch a nationwide campaign of ethnic profiling and to detain more than 5,000 foreign nationals, virtually all Arabs or Muslims, none of whom have been convicted of a terrorist crime; the development and application of computer data-mining programs that afford the government ready access to a wealth of private information about all of us without any basis for suspicion; the FBI's monitoring of public meetings and religious services without any grounds for suspecting criminal activity, under guidelines written by John Ashcroft; and, of course, the use of "coercive interrogation" to extract in-formation from suspects in the war on terror, including such tactics as "waterboarding," in which the suspect is made to fear that he is drowning.

Even with regard to the handful of Patriot Act sections that are actually being reviewed, the debate is sharply limited, and fails to confront fundamental civil liberties questions. Consider Section 218, which allows the government to obtain warrants for wiretaps and searches in criminal investigations without showing probable cause of criminal behavior, so long as the investigation also has a "significant [foreign intelligence] purpose." "Foreign intelligence" wiretap warrants have increased by 74 percent over the past four years, and now annually outstrip criminal wiretap warrants. In no other area have the courts permitted criminal search or wiretap warrants on less than probable cause of crime. Yet because the government credits this provision with collapsing "the wall" between law enforcement and intelligence agents, and everyone seems to agree that the wall was a bad thing, this section is almost certain to be made permanent.

In fact, federal law never barred intelligence agents conducting a foreign intelligence investigation from sharing evidence of crime with prosecutors. Many defendants were successfully prosecuted using information obtained during foreign intelligence searches before the Patriot Act was enacted. But the myth of "the wall" is so widely accepted that there's hardly room for disagreement.

The more fundamental myth is that "foreign intelligence" investigations are about terrorism. The government repeatedly claims, for example, that the Patriot Act merely extended to terrorism investigations various tools--such as roving wiretaps, telephone traces and document subpoenas--previously available for drug crimes. But such tools have long been available for investigation of terrorist crimes. What the Patriot Act did was to extend them to "foreign intelligence" investigations, which may have nothing whatsoever to do with terrorism or crime. A "foreign intelligence" investigation need only concern foreign-policy-related information about an agent of a foreign power--defined so broadly that it includes any foreign national employee of any organization not composed substantially of US citizens.

Thus, the Patriot Act permits tools previously limited to criminal investigations to be used to investigate, say, a British lawyer working for Amnesty International who is not suspected of any involvement in terrorism or crime. Yet no one has suggested limiting the definition of an agent of a foreign power to "terrorists and spies," the examples the government invariably uses when it defends the law.

The same point applies to Section 215, the libraries provision. The government claims that the power to demand records from libraries or other business entities established in Section 215 already existed before the Patriot Act, in the guise of a grand jury subpoena. But a grand jury subpoena is available only when the government has sufficient grounds to believe a crime has been committed to go to the trouble of empaneling a grand jury. Section 215 can be triggered without any evidence of wrongdoing whatsoever--the law would justify a search of library records to see who has checked out the same books as the Amnesty International lawyer, for example. The critical shift is from an investigation focused on crime to one focused on political activity of foreign agents. Yet critics of Section 215 have not suggested narrowing the expansive definitions of "agent of a foreign power" or "foreign intelligence," which are at the root of the problem.

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