Rights & Wrongs

By Olga Bonfiglio 

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Recent revelations about domestic spying have startled a U.S. public that thought it had adequate safeguards to protect its privacy. But those who have been observing the Bush administration since the 9/11 attacks, namely the American Civil Liberties Union (ACLU) and the Bill of Rights Defense Committee (BORDC), see these revelations as the logical extension of a drive toward a police state, which began with passage of the USA PATRIOT Act. 

Nowhere in the country is this police state becoming more evident than in Michigan where Metropolitan Detroit comprises possibly the largest Arab population outside the Middle East with 400,000 people. “People don’t know what’s going on and what’s worse, they don’t care,” said James Rodbard, a Kalamazoo attorney and president of the ACLU Michigan affiliate. 

Bush’s 2002 authorization of the National Security Agency’s domestic eavesdropping program seems to have proved the ACLU and BORDC right about their concerns. Moreover, in December 2005 the USA PATRIOT Act got Congress scrambling for a five-week extension in order to prevent the expiration of its anti-terror law enforcement provisions. Key to this extension was the U.S. Senate’s concern over the president’s abuse of power, as well as the effort to pass “a bill that promotes our security while preserving our freedom, and a bill that will earn and deserve the widespread support of the American people,” according to Senator Patrick Leahy. 

Although the USA PATRIOT Act appeared to have been a forthright, Congressional johnny-on-the-spot response to 9/11, in actuality at least two-thirds of the Act had already been drafted before the attacks. As a U.S. senator, former Attorney General John Ashcroft was among those who pushed for hard-core law enforcement enhancement, a kind of Department of Justice (DOJ) “wish list” that evolved into the USA PATRIOT Act. 

The initial House version of the bill was negotiated with compromises addressing civil liberties concerns that allowed DOJ excesses and violated several Fourth Amendment rights having to do with unreasonable search and seizure. However, Ashcroft and the White House, who both saw the bill as a top priority in concert with the House leadership, substituted the negotiated version with another in the middle of the night before the final up-or-down vote, and the leadership curtailed debate. This happened just 45 days after the 9/11 attacks and the bill passed in the House 357-66. 

Because the U.S. Senate was locked out of its offices due to the anthrax scare, few of the senators or their staff even saw the bill, so there was no debate and the bill passed 98-1 with only Russ Finegold (D-WI) dissenting. It was later discovered that most legislators hadn’t read the 342 pages of the proposal, let alone analyzed it. 

After Ashcroft finished drafting the USA PATRIOT Act, he lobbied congresspeople with the caveat that not passing the Act would result in their taking the blame for the next act of terrorism.“It destroyed the whole concept of separation of powers between the executive and legislative branches of government,” said Noel Saleh, an immigration attorney and member of the Detroit American Arab Anti-Discrimination Committee. “The Congress should not be a rubberstamp of the Executive Office to enforce the laws.” In passing the PATRIOT Act, Congress had essentially authorized the president to do whatever was necessary to respond to 9/11 attacks. The result is that the PATRIOT Act began a “gradual erosion” of the Constitution. 

“Not all of the PATRIOT Act is bad,” said Rodbard, “but there are some things in there which loosen the requirements to show probable cause before searches and seizures can occur.” Nevertheless, said Rodbard, the PATRIOT Act doesn’t read in a straightforward way and requires a variety of texts to understand what it means. 

What is frightening, according to Rodbard, are the ambiguous definitions of domestic terrorism that have the potential of limiting First Amendment speech rights. Section 505, for example, permits the issuance of a National Security Letter for a records search, which before 9/11 could be used only very narrowly. Now the FBI can issue the letter without judicial or third-party oversight. (In April 2004 the ACLU filed suit in the U.S. District Court in New York, challenging Section 505’s constitutionality. It was ruled unconstitutional but is currently on appeal in the U.S. Court of Appeals Second Circuit.) 

In 1978 the U.S. Congress passed legislation to counter the infamous COINTELPRO, an FBI domestic spy program that preyed on peace groups and civil rights organizations during the 1960s and 1970s. Led by Sen. Frank Church (D-ID), this legislation prohibited domestic surveillance without a criminal investigation. Under the USA PATRIOT Act, however, the DOJ allows agents to infiltrate and spy on people in protest groups, mosques, churches, and synagogues (as illustrated with the Fresno, California peace group in Michael Moore’s film, Fahrenheit 911). The new rules for the Federal Bureau of Prisons also allow the monitoring of attorney-client discussions in national security cases. 

The most controversial part of the USA PATRIOT Act is Section 215, which has to do with search warrants. The FBI may gather information on citizens and non-citizens without probable cause using warrants issued by special federal courts created under the Foreign Intelligence Surveillance Act (FISA). FISA was a compromise that allowed the FBI to carry out counter-intelligence programs to target terrorists and spies. FISA, as amended by the PATRIOT Act, lowers the threshold of what the FBI shows to the courts and allows for the search of any tangible thing for anybody, including records from a person’s bank, library loans, and bookstore purchases. Nevertheless, obtaining a FISA warrant still has to be for the collection of foreign intelligence, not criminal law enforcement. 

Through FISA federal authorities can hold secret courts to hear requests by the FBI for secret wiretaps and search warrants. No other party is permitted to appear and the courts are closed. While DOJ officials claim these activities are aimed only against international terrorists for intelligence gathering purposes, U.S. citizens and green card holders are not exempt from FISA surveillance under the PATRIOT Act. In the past, when the FBI requested a secret search warrant, the FISA court scrutinized it to verify that the primary purpose for the search was related to the activities of foreign governments or their agents. Now the FBI only has to certify that a “significant” purpose of the search is in connection with an investigation of foreign intelligence. At that point, the court must issue the warrant. 

The PATRIOT Act also changes the definition of terrorism. Before 9/11 a $100 donation to an orphanage in Lebanon would go unheeded. Now, it can be the basis for a charge of material support for terrorism. If convicted, a person can be sentenced to 15 years in jail as a terrorist. Because of this provision, over 5,000 Arab and Muslim men in the United States have been questioned about their donations to Middle East and Southeast Asian charities. Many have been held without charges or access to an attorney. DOJ authorities have not acknowledged who these men are nor where they are being held. When Congress asked the DOJ for information about these men, it was rebuffed because of national security concerns. Ashcroft designated such matters as “special interests” and closed them off from public scrutiny.  

In 2003 the government requested broader powers. However, due to vast public outcry, the proposed Domestic Security Enhancement Act of 2003 (PATRIOT Act II) was never introduced in Congress. Instead, it was piece-mealed into a variety of other bills and, in some cases, enacted as the Intelligence Act of 2004. 

Abuses Against Arabs and Muslims 

We’re in for some difficult times,” said Saleh. “Many people are not aware of events or the actions of our government that are tearing away at the fabric of what makes America unique.” He listed some highlights of the actual repercussions resulting from the PATRIOT Act. 

Rabih Haddad, a Muslim cleric who lived in Ann Arbor, was charged with overstaying his visa. They held him without bond for 19 months and did not charge him as a terrorist or as a national security threat. During his trial in U.S. District Court, his family was not allowed to attend and the press was not permitted. The ACLU, Congressperson John Conyers, and the Detroit Free Press filed suit against the U.S. attorney general claiming that Haddad had a right to an open hearing in court under the First Amendment. The court agreed, and, on appeal, U.S. Sixth Circuit Court of Appeals Judge Damon Keith, in his opinion upholding the trial court, remarked that “democracy dies behind closed doors.” 

In the DOJ appeal the Third Circuit Court in New Jersey ruled against this case affirming the government’s right to closed hearings in immigration cases. The case went to the U.S. Supreme Court to settle the matter, but the Justice Department considered Haddad a closed case and said it opposed any further rulings. The U.S. Supreme Court declined to review the case without comment (Case No. 02-1289). The Sixth Circuit Court ruling prevailed for Haddad because he lived under its jurisdiction while similar cases tried in the Third Circuit Court were bound by its judge’s ruling. Subsequent to his trial, Haddad was deported for overstaying his visa. 

In 2002 in Moscow, Idaho, 120 FBI agents in riot gear arrested a Saudi Muslim graduate student and charged him with visa fraud and “unauthorized employment.” (His visa did not permit him to earn money while in the United States.) Studying to be a computer engineer, the student had volunteered his time to design a website for a charitable organization. During the investigation, he was accused of lying about his employment and providing material support to terrorists. The case was tried before a jury and he was pronounced not guilty. 

Members of Doctors Without Borders witnessed a raid by agents of the Immigration and Naturalization Service (INS) while they dined in a Southeast Asian restaurant in New York. The agents rounded up the employees and checked their documents to make sure their papers were legal. 

Mohammed Abdrabboh, an attorney who serves the Arab and Muslim population in Detroit, shared stories of his experiences with the PATRIOT Act. After 9/11, the Justice Department sent a letter to thousands of non-U.S. citizens inviting them to participate in a voluntary interview. Abdrabboh sat in on 30 interviews and soon realized that the people who appeared were being racially profiled. Among the recipients of the letter were all men of a certain age who entered the United States during a certain time and who came from 23 Arab countries and North Korea. The Immigration and Naturalization Service (INS) fingerprinted the men and took their photos. 

In other actions, the INS deported 300,000 people including 15,000 from the Middle East. The INS also asked Iraqi nationals for information that could help the United States with the war against Iraq. 

Abdrabboh worked on a case of one Yemini man who had lived in the U.S. for 40 years, worked at General Motors, and didn’t even have a speeding ticket. He had recently opened a postal service center and convenience store. On December 18, 2002, during Operation Green Quest—a cooperative program of the FBI, INS, and Secret Service—this man was arrested, all his assets were frozen, and he was charged with failing to register his money when he transferred it to his new business. Apprently, he was under investigation because for years he had sent money overseas to his family. 

In five different U.S. cities Operation Green Quest also rounded up many other people of Middle Eastern descent under the guise of “fighting terrorism.” The media reported this event as “busting terrorists” for sending money overseas. As a result, many Middle Easterners have come to Abdrabboh to consult him about their contributions to family and charities overseas that  rely on their help. 

Abdrabboh, who received the 2002 National Arab-American Discrimination Committee Pro-bono Lawyer of the Year Award, had also seen Middle Easterners’ freedom of speech violated. Due to their apprehension of federal authorities, these people have reduced their political activism and become less vocal. They are also afraid to be seen as opponents of the war in Iraq or in favor of Palestine because they don’t want to look like “terrorist” sympathizers. 

But the purview of the PATRIOT Act is not confined to visitors, immigrants, or green card holders. Access to public information provided by the Freedom of Information Act (FOIA) is also at risk. For example, under the Clean Water Act of 1972, corporations must provide a toxic chemicals report. However, under the proposed PATRIOT Act II many of these documents would no longer be available for public examination. Also, sensitive information such as the name of the company and the location of the plant that produces the chemicals could be removed. If a whistleblower releases the information, that person may go to jail for ten years. 

Libraries 

Bettina Meyer, assistant dean of the Western Michigan University (WMU) Libraries, shared her recent experiences with the PATRIOT Act regarding the Department of Justice’s recent request that depositories of government documents on health, energy (including nuclear energy), and the environment be removed. The request indicated that all U.S. libraries would be audited to make sure this order had been carried out. Recently, the DOJ tried to remove some documents from university libraries, including WMU. 

“But we refused to comply,” said Meyer. Complaints from the American Library Association (ALA), and from university libraries who depend on government documents for research, created such a flurry that the DOJ rescinded the order. The WMU Library is a “selective repository” for government documents, said Meyer, meaning that it houses 70 percent of the government documents published. 

“The American Library Association aims to protect the intellectual freedom of our patrons,” said Meyer, noting that the library does record the books patrons read and borrow, as well as the articles they photocopy. “However, in order to maintain each patron’s privacy, we delete these records once the materials are returned.” 

Meyer said the library staff contemplated putting up a sign in the library that the government may be watching what patrons read. But they nixed that idea because they didn’t want to scare students, especially WMU’s international students, which amounts to about 6 percent of the student body. “I don’t want to let that happen or allow FBI agents to approach students without helping them [the students] out,” said Meyer. On the other hand, she acknowledged that librarians would be at risk of apprehension for refusing to cooperate with federal agents. 

“The WMU Libraries and member American Library Association institutions have been at the forefront of fighting against invasions of privacy for both national and international students,” said Meyer. “The ALA has been very adamant in protecting people’s right to read whatever they want to read. It is against any and all banning of books.” She added that there have been past attempts to ban books on the subject of homosexuality and racism. 

The president’s warrant-free domestic spy program and “war on terrorism” crusade are being used as justification and assumed executive privilege (albeit raw power) to root out the bad guys. Indeed, as Bush supporters are want to say: “Freedom isn’t free.” What Americans are finding out, however, is what Benjamin Franklin knew all along: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”