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Derek Jennings



The president recently signed into law the USA PATRIOT Act of 2001, proving that truth is not only stranger than fiction, it's also cornier than a bad novel. The USA PATRIOT Act?? Wow. I was still reeling over the Bush administration's initial pick for a war nickname, "Operation Infinite Justice." The announcement that George Dubya and the U.S. military would be dispensing infinite justice caught me a bit off guard. I must have missed the chapters in the Bible, Quran and Torah where God subcontracts divine judgment to the president of the United States. Others must have been similarly disturbed by this bit of presidential presumptuousness, as the nickname for the Afghanistan war was unceremoniously changed to Operation Enduring Freedom. While dramatic nicknames for military campaigns have become de rigeur for the United States in this post-Desert Storm era, naming the recent anti-terrorism bill the USA PATRIOT Act represents a zenith of both crass opportunism and neo-Orwellian doublespeak. A gem of an acronym, USA PATRIOT stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. Understandably, it was drafted and enacted very quickly following the Sept. 11 terrorist attacks, but I really wish lawmakers had taken as much time to debate the contents of the law as they did to come up with the name.

Then again, could the deliberative body of the world's premier democracy have hoped to hold any substantive discussion of sweeping anti-terrorism legislation after giving it a name like the USA PATRIOT Act? Like some lawmaker's going to demur, "No thanks, I'll be voting for the Cowardly Treason Act."

The country, in the aftermath of Sept. 11, is gripped in fear, and embracing a reflexive brand of patriotism so pervasive that an unscrupulous entrepreneur could probably wrap fecal matter in red, white and blue packaging and turn a tidy profit selling it as Liberty Freedom Snacks. Right now, we don't need slick sales tactics, we need solid, thoughtful leadership. We need for our leaders--elected and otherwise--to recognize that this is a critical juncture for the country, and that what's done during these trying times will have profound impact on the course of history for generations to come.

On the domestic front, if I can be permitted the same license for hyperbole as our legislators, it looks like we're rushing headlong down the path toward becoming a police state. As comically contrived as the name of this new law is, the consequences of the PATRIOT Act are no joke. The measure, which passed comfortably in the House and Senate (357-66, and 98-1, respectively), drastically increases the powers of the Federal Bureau of Investigation and other government agencies to monitor our communications, while simultaneously reducing the amount of judicial oversight required to implement said monitoring.

It attacks a central notion of U.S. democracy, the system of checks and balances, by abrogating the authority of judicial review. The law gives both the executive and legislative branches wide latitude in determining the line between political and "terroristic" speech and activities, while eviscerating one of the pillars of American freedom: the presumption of innocence.

This is chiefly accomplished by a shifting of the justification required for wiretapping and electronic surveillance (of citizens and immigrants alike) from a criminal standard to a national security standard, via expansion of FISA (Foreign Intelligence Security Act) powers. Whereas the FBI previously had to show probable cause for criminal activity to obtain authorization to monitor a suspect's electronic communications, by invoking FISA, the bureau now need only demonstrate to a secret court a suspicion that a person may be an agent of a foreign power or organization before installing the bugs. In a world of increased global ties, it's conceivable that almost anybody could be suspect.

Evidence that a suspect is an agent of a foreign country or organization, by the way, need not be furnished to the secret court until after the surveillance has taken place. And if you get arrested under the new law, by "mistake," good luck getting out, since the jurisdictional shift from the criminal to the national security realm means that information surrounding your case will be deemed classified. A regular lawyer or, Lord help you, a public defender, will have an extremely difficult time pleading your case. Additional forfeiture provisions within the PATRIOT law also enable the government to freeze your assets--without any proof that they come from illegal activity--effectively preventing the hiring of qualified counsel.

As the recent tax-cut bill did for corporate interests, the PATRIOT Act uses the cover of recent terrorist tragedies to provide law enforcement and the intelligence community a laundry list of things for which they'd been asking for years but were denied by a wary Congress. In addition to the aforementioned provisions, the law also enables the FBI to aggressively expand the use of its controversial Internet snooping system, Carnivore. While touted by law enforcement officials as the cyber-equivalent to the old wiretap, in practice, Carnivore taps not just a suspect's e-mail, but everyone on the same Internet Service Provider (ISP). Since an ISP can have thousands of users, using Carnivore is like having the FBI tap the phone of everyone in your county because they think your neighbor across the street may be a foreign agent. And now, they don't even need a warrant to do so.

Why all the fuss about what surveillance powers our government should have? Because we're dealing with more than a hypothetical opportunity for abuse. Many of the current restrictions on government surveillance, particularly those of the FBI and CIA, are in place because of historical abuses. It would be difficult to conceive of a person further from the description of a terrorist than Dr. Martin Luther King Jr., yet he was subject to notorious snooping by J. Edgar Hoover's FBI. Under the auspices of its Counter Intelligence Program (CoIntelPro), the FBI for decades used wiretapping, infiltration, and dirty tricks against American citizens, displaying a particular vehemence toward civil rights, minority and social justice movements, including the Southern Christian Leadership Coalition, Student Nonviolent Coordinating Committee, the Nation of Islam and the Black Panther Party.

Passage of the new law also has profound implications for international politics. How seriously are other nations supposed to take our professed belief in democratic ideals if we continue remaking ourselves in the image of the sundry dictatorships and pariah states we scorn in our annual human rights reports? Attorney General Ashcroft wanted (but didn't get in the PATRIOT Act) the ability to hold non-citizens in indefinite custody, subjecting them to the same enlightened jurisprudence that we generally associate with a Turkish prison. The law, as approved, ended up allowing for up to seven days of detention without charge of non-citizens, with the ability to extend that indefinitely under certain circumstances. Even before the law was passed, there were already more than 900 persons, mostly Muslims and/or Arabs, being held in secrecy in the wake of Sept. 11. I hope that among that number are some actual criminals who can be brought to justice, but if it turns out that a great many of those detained had no reasonable connections with the recent attacks or other terrorist activity, then this action will begin to resemble the World War II-era internment of the Japanese.

The enacted version of the PATRIOT Act contains provisions that civil libertarians and legal scholars find tantamount to "guilt by association," whereby standards for surveillance, detention, or denial of entry are so vague that persons affiliated with groups like Greenpeace or Doctors Without Borders could be considered terrorists. Democratic Sen. Russ Feingold of Wisconsin, who voiced considerable objections to the privacy and civil liberties aspects of the law, pointed out that many individuals now recognized as international statesmen were previously regarded as terrorists, among them, Nelson Mandela of the African National Congress, Yasser Arafat of the Palestinian Liberation Organization and Sinn Fein's Gerry Adams. The late Israeli Prime Minister Menachem Begin was declared to be a terrorist by the British. Criminalization by association under American law can actually hinder the fight against terrorism, preventing the progress shown by groups like Sinn Fein and the PLO that are trying to move beyond armed struggle toward the negotiation table to address their grievances. Under the PATRIOT Act, the most moderate and clearheaded members of these organizations in our country could be summarily rounded up, detained or deported, leaving no diplomatic options and strengthening the hand of real terrorists.

Depending on the level of enforcement, the new law could chill political activity by refugees and asylum-seekers based in the United States who are working for justice in their former countries. And for U.S. citizens, advocacy on behalf of people living under unpopular regimes such as Cuba or Iraq could now result in legal--albeit secret--surveillance by our government.

Given what is known about the suicide hijackers, no provisions of the USA PATRIOT Act, had they been in force, would have alerted the government to the plot or foiled the Sept. 11 attacks. But that doesn't make a difference to those who put this law forth, just as it doesn't make a difference that the missile defense system that folks have been lobbying for for years would not have prevented the attacks either.

The PATRIOT Act's real effects may not be felt for years. How will the future look, if shaped by this institutionalization of paranoia? Will my kids be stopped and frisked at the basketball court and asked to show their Smart ID Cards, like latter-day slave papers?

Will one of you take a principled stand against some future act of the United States--say, Operation Justified Aggression--and be detained as agents of a foreign government? How palatable will the rest of the Bill of Rights be minus the First and Fourth Amendments?

I can hear the response now: "Shut up and eat your Liberty Freedom Snacks."


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