IT IS TIME for the peace movement to fight for freedom at home. While protesters chanted in the streets, the Bush administration used the cover of war in Iraq to design new encroachments on our civil liberties. In addition to backing a proposed bill that would permanently extend the Patriot Act, the Justice Department stealthily drafted the even harsher Domestic Security Enhancement Act of 2003, commonly referred to as Patriot Act II. That document reveals a concerted strategy to restrict our rights of citizenship — our freedom of association, our rights to due process and appeal, even our access to information.
Our legislators have not yet tangibly demonstrated the will to stop this onslaught. Nor are they likely to do so unless they are made to believe that constituents will vote them out of office if they do not. To make that happen, the " peace " movement must become a protest movement, and increase its numbers across the political spectrum. There’s no time to waste; if protesters don’t act soon, they could face a time when our laws make such organizing not only difficult, but criminal.
Few Americans are even aware of the proposed Patriot Act II. This ignorance is unsurprising when you consider that its predecessor — which made sweeping changes in criminal investigation and judicial process — was passed in less than a month’s time, largely unexamined even by members of Congress.
Patriot Act II’s various provisions extend the life and the applicability of Patriot I, dramatically adding to the categories of people who may be investigated, curtailing due process and the right to appeal, and authorizing unlimited secrecy on the part of the government to spy on and detain citizens.
Nancy Murray, director of the Bill of Rights Education Project of the ACLU of Massachusetts, describes the proposals as " really quite frightening, both as a further erosion of our freedom, and as an indication of how this government operates: the desire for secrecy, the behind-the-scenes consolidation of power, and the emphasis on guilt by association. "
Among its provisions, Patriot Act II would allow for the classification of individual US citizens as " foreign powers, " opening them up to greater surveillance without requiring court orders. The word " terrorist " would legally encompass anyone who, regardless of his or her knowledge or intent, provides (undefined) " material support " to someone else defined as a terrorist (who may not even know that he or she has been so defined) for associating with a group defined as a terrorist organization, whether or not the group itself knows of its designation. The " terrorist " group need not have committed crimes; it need only be " likely to, " with no parameters establishing that likelihood.
This softness of definition is intentional, designed to provide unprecedented legal authorization for broad powers of pursuit. Chris Hoofnagle, deputy counsel of the Electronic Privacy Information Center (EPIC), a not-for-profit research center focusing on privacy and civil liberties, says, " If passed as written, it becomes very easy, without knowledge or intent, to provide material support, which is where [the] Justice [Department] is getting its convictions already. " (Case in point: James Ujaama, an American Muslim activist, was initially charged with funding Al Qaeda and conspiring to set up a terrorist camp; according to the Justice Department press release, he pleaded guilty to donating computers and cash to a school under Taliban rule, and to traveling with someone who later attended a jihad training camp. All actual terrorism charges were dropped — or " superseded, " in Justice Department terms — but he will serve at least two years for his " material support. " )
Should you feel wrongly pursued, the law would make it impossible to do anything about it. Patriot II would allow agents to pursue you without court order or judicial approval, as long as they were acting in " good faith, " another undefined phrase. They would be able to share any of your personal information with any agency they deemed necessary in any jurisdiction, but those agencies could not share this information with you, nor could any person or institution tell you that it had been compelled to provide your records. (While it is currently illegal for institutions to reveal that investigative agencies have requested a person’s records, there is no specified penalty for doing so. Under Patriot II, however, simply telling you would merit a jail sentence.) From secret searches to phone taps to DNA testing, the government would have no obligation to explain its actions to you, to a court, or even to any sort of internal review.
This tactic reaches a brutal peak in the proposed approval of secret arrests. Should you be arrested, no charges need be made known to you and no admission made to anyone else — family, lawyers, or the press — that you have even been detained, until you are formally charged in court at a future time of the government’s choosing (with no set time limits). This abhorrent policy — the disappearing of citizens at the hands of their government, which amounts to a suspension of habeas corpus — has never been legal in our country; in fact, it is one of the things from which we claim to have gone to war to free the Iraqis.
Furthermore, American citizens could be stripped of citizenship simply for having provided the above-referenced " material support " to a designated individual terrorist or organization. EPIC’s Hoofnagle reminds us that such support could be as basic " as giving to a charity you like, " regardless of what you know about the money’s use. The bill claims that such action on your part indicates an implied willingness to relinquish citizenship, and as a newly unprotected noncitizen, you would no longer have the right to a hearing on the matter.
Consider the following example, which fully complies with the letter of the proposed law. You share an apartment with Hamad, a college student originally from Jordan. Hamad has often gone to pro-Palestinian rallies and events, including one co-sponsored by an organization that (unbeknownst to Hamad) has been declared terrorist for " likely " future actions. Hamad’s " association " with this group has led a zealous local agent to declare him a " foreign power " and " terrorist. " Through surveillance, agents learn that, while Hamad sought work last summer, you paid his rent — clear " material support " — making you a " terrorist " as well. The government revokes Hamad’s visa, forcibly repatriating him, and threatens to strip you of your citizenship. Without a lawyer and facing potentially open-ended detainment, you agree to plead guilty to providing material support, knowing that you are likely to serve jail time. The government claims another conviction against terror, and you pay the cost.
Because, in spirit, the law is directed at truly dangerous individuals, you might find that example exaggerated, but don’t be fooled: law is enforced according to its letter, not its spirit. As Hoofnagle notes, citing cases involving surveillance laws and Patriot Act I, " This Justice Department has proved it will stretch its interpretation of these laws to the limit. " Past perceptions of due process are of no comfort, because, as Murray says, " This bill throws out so much we’ve taken for granted for so long. "