Keeping up with the lies of the Bush Administration (something that Steve Perry has been doing at Bush Wars) would be a full-time job. In order to maintain my sanity, I focus only on lies about civil liberties. Until recently, Attorney General John Ashcroft has been the Fraudmeister. But fueled by the 9-11 Commission hearings (the panel Bush did not want to begin with) and the steady stream of Administration talking heads who tout the Patriot Act as the compilation of laws that will save us from "terrorism," Bush’s handlers have come to the recognition that touting the Patriot Act is a mighty fine reelection campaign tool. After all, it is aptly named so that if you are not for it, you are un-"Patriot"-ic.
Last week, Bush made two speeches about the Patriot Act, one in New York City, one in Buffalo. The Buffalo speech focused on how the Lackawanna Six, young American citizens of Yemeni descent who never engaged in one act of terrorism but made the dumb mistake of going to Afghanistan (and returning) to study Islam before September 11, are serving long prison terms because of the Patriot Act and the prosecutors who used it to nab the bad guys before they could hurt us. Nothing could be further from the truth. The Patriot Act itself cannot be tied to any terrorism "convictions" (mostly guilty pleas) other than the fact that it defines "terrorism" so broadly that my writing this article equals a terrorist act. Ergo, traveling to a "terrorist" country before September 11 makes you a terrorist.
The ACLU has saved me the trouble of cataloguing and contradicting Bush’s lies about the Patriot Act:
"By the way, the reason I bring up the Patriot Act, it’s set to expire next year. I’m starting a campaign to make it clear to members of Congress that it shouldn’t expire. It shouldn’t expire for the security of our country."
Less that 10 percent of the Patriot Act expires; most of the law is permanent and those portions that do sunset will not do so until December 31, 2005.
"And that changed, the law changed on- roving wiretaps were available for chasing down drug lords. They weren’t available for chasing down terrorists, see?"
Roving wiretaps were available prior to 9/11 against drug lords and terrorists. Prior to the law, the FBI could get a roving wiretap against both when it had probable cause of crime for a wiretap eligible offense. What the Patriot Act did is make roving wiretaps available in intelligence investigations supervised by the secret intelligence court without the judicial safeguards of the criminal wiretap statute.
"… see, I’m not a lawyer, so it’s kind of hard for me to kind of get bogged down in the law. (Applause). I’m not going to play like one, either. (Laughter.) The way I viewed it, if I can just put it in simple terms, is that one part of the FBI couldn’t tell the other part of the FBI vital information because of the law. And the CIA and the FBI couldn’t talk."
The CIA and the FBI could talk and did. As Janet Reno wrote in prepared testimony before the 9/11 commission, "There are simply no walls or restrictions on sharing the vast majority of counterterrorism information. There are no legal restrictions at all on the ability of the members of the intelligence community to share intelligence information with each other.
"With respect to sharing between intelligence investigators and criminal investigators, information learned as a result of a physical surveillance or from a confidential informant can be legally shared without restriction.
"While there were restrictions placed on information gathered by criminal investigators as a result of grand jury investigations or Title III wire taps, in practice they did not prove to be a serious impediment since there was very little significant information that could not be shared."
"Thirdly, to give you an example of what we’re talking about, there’s something called delayed-notification search warrants. … We couldn’t use these against terrorists [before the Patriot Act], but we could use against gangs."
Delayed-notification – or so-called sneak-and-peek search warrants – were never limited to gangs. The circuit courts that had authorized them in limited circumstances prior to the Patriot Act did not limit the warrants to the investigation of gangs. In fact, terrorism or espionage investigators did not necessarily have to go through the criminal courts for a covert search – they could do so with even fewer safeguards against abuse by going to a top secret foreign intelligence court in Washington.
For criminal sneak-and-peek warrants, the Patriot Act added a catch-all argument for prosecutors – if notice would delay prosecution or jeopardize an investigation – which makes these secret search warrants much easier to obtain.
The president’s sneak-and-peek misstatement clearly demonstrates that the Patriot Act is not limited to terrorism. In fact, many of the law’s expanded authorities can clearly be used outside the war on terrorism.
"Judges need greater authority to deny bail to terrorists."
The new presumptive detention that the president is proposing takes judicial authority away from the bail process. The presumption would take away the prosecution’s burden of showing that the accused is a danger or flight risk and instead puts it on the accused.
Pending Legislation to "Enhance" the Patriot Act
President Bush is setting the stage for a fight that will ensue next year, as several controversial provisions of the Patriot Act that impinge most on American’s civil liberties are set to expire. He wants to convince the public that spying on citizens is the way to stop terrorism. If Congress does what it did in 2001, it will once again sell our liberties down the river–this time for good.
In addition, new legislation is pending to create more crimes of "terror," many of them carrying the death penalty.
Following on the heels of President Bush’s road trip to promote the controversial Patriot Act at events in Pennsylvania and New York, on April 21, 2004 a key House subcommittee considered a proposal to expand the Patriot Act’s controversial definition of "terrorism" to provide a death penalty for any federal crime punishable by more than one year in prison if the crime was intended to influence government policy and results in death.
"The Patriot Act remains one of the most controversial measures ever passed by Congress," said Timothy Edgar, an ACLU Legislative Counsel. "Attempts to expand it, such as the now-defunct draft Patriot Act 2 that floated around Congress last year, have been highly contentious. Now we’re seeing attempts to pass provisions of Patriot Act 2 piece-by-piece."
Federal law already provides 20 separate death penalties for serious terrorism crimes, including bombings, hijackings, assassinations and hostage taking.
Testifying at the April 21 hearing before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, Edgar reminded committee members that the Justice Department has not been forthcoming in its disclosures regarding how the Patriot Act has been used so far, saying Congress should review existing powers before adding to them.
"This proposal will rightly be seen as another federal infringement on civil liberties that will not make America safer," Edgar added. "It will result in increasing mistrust, both at home and abroad, even of legitimate anti-terrorism efforts and further isolate America in the world. It should be rejected."
The proposed legislation would do two things. First, it would make 23 crimes eligible for the death penalty. Second, it would create an unprecedented "catch-all" death penalty for any other federal crime punishable by more than a year in prison if it meets the PATRIOT Act’s overbroad definition of terrorism and results in death. The ACLU said that protestors and activists from groups including Greenpeace and Operation Rescue could risk being sentenced to death for participating in certain civil disobedience events if they involved a federal crime punishable by more than a year in prison and resulted in a death of one of the participants or someone else.
Laws such as the Freedom of Access to Clinic Entrances (FACE) Act and the federal gun control regime at 18 <U.S.C>. sec 922, among many other crimes, could carry death sentences if the bill passed, Edgar said.
The ACLU also noted that the proposal could actually hurt the anti-terror efforts. Many nations that have abolished the death penalty are unwilling to extradite or provide evidence in federal terrorism cases if the death penalty might result from their cooperation. Suicidal, politically motivated terrorists such as members of Al Qaeda would be unaffected as often they are seeking to create martyrs for their causes and to generate publicity.
Read the ACLU’s testimony on HR 2934, the "Terrorist Penalties Enhancement Act of 2003."
Don’t be caught sleeping (let Congress do that). Visit the ACLU website often and send email and faxes (crimes of terror, of course, since designed to influence politics and too many faxes and emails might jam your congressman’s critical infrastructure–and I am only half-kidding) to your elected representatives. Not that they will listen, but at least you can tell your children that stood up for liberty.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. Her book, The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, will be published by Lawrence Hill this summer. She can be reached at: email@example.com