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Power must never be trusted without a check.
(John Adams, in a letter to Thomas Jefferson, 1816)
America’s security is of vital importance. We place our trust in the President to understand the threats we face, and to protect us. But is it possible that the President could abuse that power and privilege by exploiting a national tragedy — at the expense of our constitutional system of checks and balances, and the very freedoms that define America?
In his 2004 State of the Union address, President Bush virtually demanded that Congress extend the provisions of the USA-PATRIOT Act which, unless extended, will sunset at the end of 2005. Now is the time to examine closely the provisions of that Act and the manner in which the Bush administration has used it.
As PATRIOT Act excesses and the re-emergence of a domestic surveillance program have come to light, a distinct pattern emerges from the Bush administration’s major counter-terrorism efforts: It seeks unbridled power, and it is using the “War on Terror” to prevent Americans, the courts, and Congress from checking its efforts. This use of the “War on Terror” has made America less free, less democratic, and — as a result of President Bush’s autocratic decision making — less safe. As President of the nation’s largest organization of criminal defense lawyers — America’s daily defenders of the Bill of Rights — I feel compelled to share my concerns with you.
The attacks of September 11 forever changed Americans’ sense of security. Understanding this, President Bush declared a “War on Terror.” The centerpiece of his domestic anti-terrorism effort is the PATRIOT Act. A radical proposal introduced to a traumatized and fearful nation, it grants unprecedented police powers to the federal government while simultaneously scaling back fundamental individual rights and liberties. Presented as essential to the country’s security, the Bush administration demanded passage without meaningful congressional debate or review. Those who dared request more time to review were publicly attacked by Attorney General Ashcroft as, “giving aid to the terrorists.” Despite the misgivings of many, the bill passed overwhelmingly because Congress dared not contest the Bush administration’s contention that its provisions were necessary to keep the country safe from terrorism.
Without meaningful congressional review, the American public didn’t realize that the PATRIOT Act would limit rights and expand police powers in areas unrelated to terrorism. Upon passage of the legislation, however, the Justice Department began training its operatives to use these long-sought and surreptitiously-gained provisions in non-terrorism cases. And they have proceeded to use their new authority to pursue bookies, con artists, and drug dealers.
What’s more, as a result of the PATRIOT Act there are now fewer constitutional checks to prevent the abuse of these Executive powers. In many instances, probable cause is no longer the applicable standard for gaining wiretap and search authority, tracking people’s financial transactions, or reviewing individual Internet and library records. By internally designating any investigation “terrorism-related,” the Executive Branch now has wide latitude to go on a fishing expedition for evidence virtually whenever — and against whomever — it chooses.
The Arab- and Muslim-American communities have borne the weight of the administration’s new-found powers and the scaling back of rights under the PATRIOT Act (and related administration actions), and this has engendered negative feelings among these communities — our greatest potential partners in the effort to prevent terrorism.
How ironic it is that not PATRIOT Act snooping, but the accidental misdelivery of fake U.N. and Department of Defense ID badges alerted the FBI to the activities of William Krar, who was recently found in possession of the most lethal domestic terror arsenal in the past 20 years. The Justice Department barely acknowledged the arrest, issuing only a half-page press release to local east Texas media.
In a recent interview on National Public Radio, Justice Department spokesman Stefan Cassello gave one example of why the PATRIOT Act is an important tool for law enforcement. He cited the case of a mid-western lawyer who had taken over $1 million of his clients’ money and fled the country. Using the PATRIOT Act, Cassello said, the government was able to seize the stolen funds in a Cayman Islands bank and return them to this country. This result is, no doubt, meritorious, but it has nothing to do with terrorism or national security. It does not justify extending the PATRIOT Act’s many egregious provisions.
As a result of the PATRIOT Act, America is now both less free and more autocratic. Nonetheless, many Americans feel that if we are more secure as a result, it is worth it.
The question that must now be asked is whether America needs to relinquish these freedoms and balance in order to effectively prevent terrorist attack? It is now well-documented that American intelligence agencies had warned the President in early August 2001 that Osama bin Laden was seeking to hijack aircraft. That same summer, FBI agents were frantically signaling specific concerns to their superiors regarding potential al Qaeda terrorists at local flight schools. Based on these reports and more, we know that the CIA and FBI had the tools necessary to detect, and possibly prevent, the September 11 attacks. Despite assertions to the contrary, it was the mismanagement of available intelligence — not the Bill of Rights — that prevented the administration from protecting us.
In May 2002, Attorney General Ashcroft released his agents to actively monitor domestic political activities, an action that had previously been banned because of the anti-democratic abuses committed under its predecessor program, COINTELPRO. Soon afterward, a New York Times editorial correctly noted that the FBI again had “nearly unbridled power to poke into the affairs of anyone in the United States, even where there is no evidence of illegal activity,” and a recently revealed FBI memorandum confirms that they’re doing exactly that — even where there is “no information indicating that violent or terrorist activities are being planned.”
Those who dare to protest Bush administration policy now know that their lawful expressions may subject them to surveillance, and even earn their names a place on government anti-terrorism databases. Given the government’s past history of clandestine neutralization of dissenting individuals and organizations, the Bush administration’s record of obsessive secrecy and their newly granted powers to conduct surreptitious searches of dwellings, scour financial records, and intercept conversations — not to mention detain people and label them “terrorists,” Americans now know they should think twice before speaking out against the government. Just ask the law-abiding people of Colorado who simply testified in support of legislation, yet found their names had been turned over to the FBI’s Joint Terrorism Task Force by Denver Police, according to the May 16, 2003 Denver Post. Or the Des Moines peace activists who, the February 7, 2004 Des Moines Register reported, have been subpoenaed to a federal grand jury and ordered to produce records of membership lists, meeting agendas, and other similar documents. The subpoenas described the subject matter of the grand jury investigation only as a “possible violation of federal law.”
A recent investigation in Las Vegas is also illustrative. Authorities suspected that a strip club owner was using illegal means to thwart legislation in the city council that would prohibit patrons from touching lap dancers. Using PATRIOT Act provisions, the government obtained financial records of every city council member and some of their spouses. No terrorists were found lurking in the strip clubs. The lesson to be learned, however; is that any law susceptible to abuse in time will certainly be abused.
Before any part of it is extended, the PATRIOT Act should be carefully scrutinized, and all its grants of unchecked power to the Executive Branch should be repealed or allowed to expire.
The threat of terrorism is timeless; America’s Constitution and democracy are far less assured. To protect America, criminal defense lawyers must forever critically assess government efforts to prevent terrorism. We must sound the alarm whenever those extraordinary measures are abused. For if the essence of America is its Constitution, then it is those who defend the Constitution from unjustified attack — expecially in times of crises — that are America’s true patriots.
(Thank you to NACDL Past President Gerald Lefcourt for his thoughtful suggestions.)