BY DAN KENNEDY
Noted civil-liberties lawyer Harvey Silverglate, a Phoenix contributor, is more sanguine than most about the increased surveillance that the Patriot Act allows for, as well as such anti-terrorism measures such as intrusive airport security. What bothers him is the virtual suspension of habeas corpus — that is, the secret detention of some people, without charge or even the knowledge of the judiciary — and the Bush administration’s equation of skepticism with a lack of patriotism, even treason.
A notorious example of the latter: Ashcroft’s testimony before the Senate Judiciary Committee on December 6, 2001. As recounted in a long New Yorker profile by Jeffrey Toobin the following April, Ashcroft said of his critics, "To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends. They encourage people of good will to remain silent in the face of evil."
And that’s not the only way this White House attacks those who would exercise their free-speech rights. An instance of the Bush administration’s breathtaking disingenuousness might be seen in a provision of Section 215 that specifies that a citizen cannot be searched "solely on the basis of activities that are protected by the First Amendment to the Constitution." Ashcroft himself has repeatedly cited that provision on his 18-city pro–Patriot Act tour, including in his speech at Faneuil Hall.
But as the Slate analysis puts it, "That means you can’t have your records searched solely because you wrote an article criticizing the Patriot Act. But if you are originally from India and write that article, well, that’s not ‘solely’ anymore, is it?"
Silverglate puts it this way: "What would be the most fundamental thing they could do? That would be to affect elections. If they can intimidate people into not saying anything, then they have done something more fundamental than grabbing someone’s breast at an airport."
He adds: "As long as people have the means to eventually bring the government to heel, then you really haven’t done any damage to democracy. But these people want to do damage to democracy."
ON SEPTEMBER 10, President Bush chose to honor those killed in the terrorist attacks two years ago by speaking at the FBI Academy in Quantico, Virginia. "America honors and remembers the names of all victims," Bush said. "And tomorrow, some families will be thinking of [a] name in particular, a person they still love and deeply miss. The prayers of our whole nation are with the families of the lost who feel a grief that does not end."
So how did the president propose recognizing those sacrifices? Why, by expanding the Patriot Act. Earlier this year, he abandoned a wholesale extension — dubbed Patriot II — in the face of mounting criticism in Congress. (Indeed, it was a Republican congressman from Idaho, C.L. "Butch" Otter, who led a successful effort during the summer to kill funding for "sneak and peek" raids.) Now, apparently, the president intends to dribble out Patriot II provisions a few at a time.
On his new wish list: an expanded death penalty; a provision to make it more difficult for terrorism suspects to be released on bail; and "administrative subpoenas," which would allow investigators to obtain records without the intercession or oversight of a grand jury or a judge — not even a rubber-stamp-wielding FISA judge.
"You need to have every tool at your disposal to be able to do your job on behalf of the American people," Bush said. "The House and the Senate have a responsibility to act quickly on these matters. Untie the hands of our law-enforcement officials so they can fight and win the war against terror."
To political analyst Larry Sabato, director of the University of Virginia’s Center for Politics, it was a play right out of Bush’s father’s campaign against Michael Dukakis in 1988, in which he wrapped himself in the American flag and turned "ACLU" into an epithet.
"It’s the oldest strategy in the military playbooks: the best defense is a good offense," Sabato says. "While some are calling for watering down certain provisions of the Patriot Act, Bush is calling for an expansion of it. So they compromise on — the Patriot Act."
Sabato adds, "What he has proposed is probably a good campaign issue. How do you campaign against it? It’s easy for a tenured academic to make the case against it. Or a journalist. But that’s a tough one. It plays on the Democratic Party’s weakness: soft on defense."
Yet people are beginning to fight back — and not just those on the political fringes. Several members of Congress have proposed sweeping changes to the Patriot Act. And yes, some are relative unknowns such as Butch Otter, and some are liberals such as Representative Bernie Sanders, the left-leaning independent from Vermont.
But perhaps the most comprehensive bill comes from the office of Senator Lisa Murkowski, an Alaska Republican who is the daughter of long-time Senate lion Frank Murkowski, now his state’s governor. According to an analysis by the Center for Democracy and Technology, Murkowski’s Protecting the Rights of Individuals Act would place some crucial checks on the government’s surveillance powers, guarantee that activists such as anti-war and anti-abortion protesters would not be charged as terrorists, and increase the oversight role of judges.
Locally, opposition is on the rise, too. Not long after the Patriot Act was passed, Nancy Talanian, of Northampton, helped found the Bill of Rights Defense Committee, which advocates for and keeps track of efforts by local governments to register their disapproval. To date, 162 cities, towns, and counties and three states — encompassing more than 19 million Americans — have passed resolutions (and, in one case, an ordinance) expressing their opposition to the Patriot Act and urging their police departments to limit their cooperation with federal authorities to the minimum required by the law.
"Since the Patriot Act was passed so quickly with such a huge margin, we knew we couldn’t start with a federal approach," says Talanian. "So we had to take a local one."
In Massachusetts, according to the organization’s Web site (www.bordc.org), 14 cities and towns have passed anti–Patriot Act resolutions, including the Boston-area communities of Cambridge, Brookline, Arlington, and Newton. In Boston, three city councilors — Chuck Turner, Charles Yancey, and Felix Arroyo — have urged that their colleagues pass a similar resolution, although they have thus far been stymied by council president Michael Flaherty, who has professed a dislike for measures that he sees as purely symbolic.
Symbolic though such measures may be, Cambridge city councilor Brian Murphy, the main proponent of the Cambridge resolution, says they serve a real purpose.
"A lot of it is to build awareness," he says. "I think most people have no idea of what the Patriot Act does already and what the implications would be with Patriot Act II. I think it also lets national leaders know that there is concern at the grassroots level."
THIS PAST SPRING, Democratic state representative Kay Khan, of Newton, tried to wire a small amount of money — about $300 — to a relative on the North Shore. It didn’t go through, even though similar transactions had gone off without a hitch in the past.
Pretty soon, Khan found out what the problem was. Someone had been using the name of her husband, Nasir Khan, as an alias. Supposedly it had already been cleared up. And yet Kay Khan’s transfer was flagged for rejection.
Khan’s story was first reported on September 8 in the Washington Post. Later, in an interview with the Phoenix, she said she still didn’t know what to think. Was her transaction held up only because of the phony-identity issue? Or did the fact that her husband has a Middle Eastern–sounding name (he is of Indian descent) transform a minor problem into a major hassle?
"I was very upset that this had happened, and outraged," says Khan, who was, to her knowledge, the only Massachusetts legislator to attend the Faneuil Hall protest. "It alarmed me. It gave me a sense of what might be going on here since 9/11 and the Patriot Act. It’s a little disconcerting. I know we’re all concerned about safety and terrorism and feel that we want to be safe, but I think we have to be really cautious about how we go about this. I guess I worry more for people who are coming into the country and newer immigrants. It gave me a sense of what can happen, what possibilities there are. It’s very demoralizing."
Khan’s situation suggests what may be the most insidious aspect of the Patriot Act. It’s not that you’re being watched. It’s that you might be, and that you have no way of knowing whether you are or not.
Potentially, it’s an effective form of control: keep a few people under surveillance, just enough to force a much larger group into wondering whether they, too, are being followed by the baleful eye of the state. Whether their name, ethnicity, religion, or political views have brought them to the attention of John Ashcroft’s Justice Department. Maybe. Maybe not.
As the old saying goes: just because you’re paranoid doesn’t mean they’re not out to get you.
Dan Kennedy can be reached at dkennedy[a]phx.com Read his daily Media Log at BostonPhoenix.com