BY CANDACE COHN
CHICAGO — After September 11, people in the US have widespread and understandable fears about hijacked airplanes turned into flying bombs and anthrax sent through the mail. But few understand the scale of the danger unleashed last month by their own government.
The USAPATRIOT Act — which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism — passed overwhelmingly in both houses of Congress and was signed into law by President George Bush on October 26. The law should have been called the Big Brother Bill.
Unprecedented police powers are now the law of the land — passed under cover of war and the "homeland security" hysteria. The act gives law enforcement agencies at every level extraordinary new powers for domestic spying, searches, detainment and deportation.
Though Washington claims that the legislation is needed to target terrorists responsible for acts like the World Trade Center attack, the new law will be used in all sorts of situations where there's no connection to terrorism.
Democrats proudly talked about the "concession" they won from the White House — that a number of provisions expire automatically in four years. But many of the most insidious aspects — such as "sneak and peek" searches and cyberspace snooping — don't "sunset" and are now permanent changes in the law. This is a vast attack on basic civil rights and liberties.
Immigrants and other non-citizens can be detained for a week without charges. All that's required is for Attorney General John Ashcroft to "certify" — which means nothing more than his say-so — that the individual is a "terrorist" or a threat to "national security."
Immigrants can be jailed indefinitely without a hearing on Ashcroft's say-so — even if they aren't deportable for terrorist activities — if there's a technical violation (such as overstaying a visa) and the individual isn't accepted back by his or her native country.
This effectively means life sentences for immigrants on the attorney general's vague and unspecified allegations of terrorism or threats to national security.
Notice of a search is considered a key protection under the US constitution's Fourth Amendment, because without it, you can't assert your rights. For example, without notice, you couldn't object that police are at the wrong address. Or that they're searching improperly through your dresser drawers when the warrant is limited to a search for a stolen car.
Under USAPATRIOT, all law enforcement has to do is show that giving notice of a search would jeopardise an investigation. The "sneak and peak" provisions apply in all criminal investigations, not just ones involving terrorism.
Although the courts have carved out many exceptions, under the Fourth Amendment, the state can't conduct invasive searches to obtain evidence of a crime without first proving to a judge that it has "probable cause" of crime. The USAPATRIOT Act stands this requirement on its head.
The new law authorises searches without any need to show probable cause. Authorities have only to meet a much lower standard of showing that "national security" is involved.
The secretary of state can designate any group that has ever engaged in "violent" activity as a "terrorist organisation". Such a sweeping definition could include many groups that engage in direct action — for example, Greenpeace or People for the Ethical Treatment of Animals. There are no safeguards or procedures to protest or appeal.
Demonstrations that the government says involve activity "dangerous to human life" — which could cover minor acts of vandalism or resisting arrest — would also qualify, because under the act's definition, they "appear to be intended... to influence the policy of a government by intimidation". This provision could be used to criminalise protests against the International Monetary Fund and World Bank, for example.
What's more, you can be prosecuted under the USAPATRIOT Act for providing even the most minor assistance to anyone designated a "terrorist". Example: You allow friends from out of town to sleep on your floor when they come to demonstrate peacefully against the World Trade Organisation — even if you stay home while they're at the protest.
Non-citizens, including lawful permanent residents, may be barred from entering or reentering the country — or, if they're in the US, detained or deported — for belonging to or lawfully assisting groups deemed "terrorist" by the government.
The government doesn't have to notify non-citizens which groups to avoid, and their assistance doesn't need to be related to the alleged terrorist activity.
Groups that aren't even designated as terrorist can be included — if an individual "should have known" that his or her assistance would further loosely defined "terrorist" activity.
The government can obtain Americans' financial and medical records because they may have sat on an airplane next to a terrorism suspect. This is just one of the ways that the government can now legally invade citizens' privacy with breathtaking scope — and without meaningful judicial limitations.
Under USAPATRIOT, the government can — without showing probable cause — force institutions to secretly turn over any US citizen's financial books, medical records, mental health records, employment and drug-testing records, DNA hair samples and fingerprints.
Records have to be turned over as long as authorities make a very low showing of relevance. And judges must issue the orders — even if they believe that law enforcement is on a bogus fishing expedition.
Institutions are explicitly barred from telling a citizen that they had to turn over information.
The USAPATRIOT Act lowers standards for police to tap phones. Authorities don't have to show "probable cause" to obtain wiretaps for investigating a "crime". And the new law legalises so-called "roving" wiretaps — in which the government can bug any phone that a suspect uses without getting new warrants each time.
Law enforcement agents are supposed to view only email addresses and Web sites visited, and not "content". But the standards for cyberspace searches have been lowered under the USAPATRIOT Act.
Rather than the traditional Fourth Amendment requirement of evidence of "probable cause" for content, the state only has to assert "relevance to an ongoing criminal investigation". The judge must then issue a search order.
Even if you aren't a target of a government investigation, your email and internet activity may still be monitored, either through the Carnivore internet surveillance system used by the FBI or because you qualify as a "trespasser". Carnivore gives the government access to electronic communications of non-suspects if they happen to share the same internet service provider as a targeted suspect.
A "trespasser" is defined as someone who doesn't have authorised access to a machine or network — and therefore is fair game for surveillance. You can be a "trespasser" if you were late in your payments to an internet service provider or if you shopped online at work against company policy.
Law enforcement can get access to student records that used to be confidential from colleges and universities. The state will also have greater access to the National Education Statistics Act, which collects vast amounts of confidential, identifiable data for statistical research purposes.
Until now, such information has been strictly confidential without exception.
These attacks and more became law when George Bush signed the USAPATRIOT Act.
Many provisions are no doubt unconstitutional under current case law. But their constitutionality will ultimately be decided by the US Supreme Court — which is controlled by a right-wing majority that has chipped away at civil liberties for years.
The first victims of the crackdown have been Arabs and Arab Americans. Immigrants are least able to protect themselves legally — and therefore make the easiest targets. But as in any war, after they come for the weakest, they move on.
And the broad police powers sanctioned by the USAPATRIOT Act are explicitly intended to be used in ordinary criminal proceedings with no connection to "terrorism" — and to stifle political dissent.
As Senator Russ Feingold, the lone senator to vote against the USAPATRIOT Act, explained: "The whole tenor of the debate was, 'Let's grab as much as we can', given the fear of terrorism."
There has been little outcry about this assault. Washington has exploited ordinary people's understandable fears of terrorism to build a tide of support.
Many Americans have accepted the idea that if terrorists can wreak havoc in their lives, they should be willing to give up a few minor liberties in order to be safe. But the civil liberties that Washington is trampling on aren't minor — and safety isn't the real motivation anyway.
If the USAPATRIOT Act was really about catching suicide hijackers and anthrax terrorists, then why do key provisions apply to all criminal law? Why are judges written out of the process or restricted so that they're required to issue certain orders?
Washington officials are manipulating the fears of ordinary people to get whatever they want. Safety and justice are the least of their concerns.
[Abridged from Socialist Worker, weekly paper of the US International Socialist Organization. Visit <http://www.socialistworker.org>]
From Green Left Weekly, November 21, 2001.
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