[Dryerase] A Review of Civil Liberties, Nov. Public i

[SARAH BOYER]

A Review of Civil Liberties One Year After 9/11

by Stephen Hartnett

As the failed hunt for Osama Bin Laden gives way to preparations for the 
invasion of Iraq, and as the passing of a year of mourning gives way to 
commercial exploitation and political opportunism, many Americans are 
beginning to realize that one of our most pressing duties is to protect the 
Constitution from the Patriot Act. Ponderously titled “An Act to Deter and 
Punish Terrorist Acts in the United States and Around the World, to Enhance 
Law Enforcement Investigatory Tools, and for Other Purposes,” the Act 
amounts to the most drastic revision of US civil liberties since the 
shameful Espionage Acts of 1917 and 1918. The Act’s final phrase, “and for 
Other Purposes,” sounds ominously like a blank check for government 
intervention. As various essays in the Public-i have noted throughout the 
past year, federal authorities have not hesitated to use that blank check to 
imprison immigrants and harass peace activists and dissident journalists. 
Nonetheless, the courageous work of supporters of liberty and justice has 
triggered a national debate regarding the Patriot Act. Focusing on recent 
developments, what follows is a review of this ongoing debate and its impact 
on the First, Fourth, Fifth, and Sixth Amendments.

The First Amendment: Congress shall make no law respecting an establishment 
of religion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press, or the right of the people peaceably to 
assemble, and to petition the Government for a redress of grievances.

Given the vitriol of John Ashcroft, including his infamous claim before the 
Senate Judiciary Committee that anyone criticizing the government “only aids 
terrorists, for they erode our national unity and diminish our national 
resolve,” many observers assumed in the months following 9/11 that the First 
Amendment was in dire jeopardy (see Ashcroft’s testimony in NY Times, 7 Dec 
01). The shrill unison of the mass media and the restrictive use of “press 
pools” in war region coverage has also led many observers to argue that even 
without official forms of censorship public debate about the War on 
Terrorism is so circumscribed that it mocks the robust exchange of ideas 
envisioned in the First Amendment. But in a wonderful turn of events that 
again shows the strength of democracy in America, a diverse chorus of voices 
has risen to champion the First Amendment and to question the heavy-handed 
powers granted in the Patriot Act.

The case of Rabih Haddad is instructive. Haddad is a Lebanese Muslim 
clergyman active in Ann Arbor with the Global Relief Foundation, a group 
charged by the Justice Department with (but as yet not proven guilty of) 
supporting terrorist activity. Combining this assumed link to terrorists 
with the fact that Haddad’s tourist visa had expired, federal agents 
arrested Haddad on December 14, 2001, and initiated secret deportation 
hearings. Although still technically innocent, Haddad has nonetheless been 
in custody for over nine months. The Detroit News and Metro Times (a solid 
weekly arts and politics paper roughly the equivalent of a combination of 
our CU City View and Public-i) appealed for the right to cover the hearings, 
charging that secret proceedings clashed with the First Amendment’s 
prohibition on abridging the freedom of the press. When the newspaper’s 
request was denied they joined forces with Congressman John Conyers, Jr. 
(MI, Dem) and the American Civil Liberties Union’s Immigration Rights 
Project and sued. The Federal District Court in Detroit overturned the 
District Court’s decision, which in turn prompted Ashcroft to appeal to the 
United States Sixth Circuit Court of Appeals, based in Cincinnati. In its 
remarkable decision rejecting Ashcroft’s appeal the Court wrote that “The 
First Amendment, through a free press, protects the peoples’ right to know 
that their government acts fairly, lawfully and accurately in deportation 
proceedings. When government begins closing doors, it selectively controls 
information rightfully belonging to the people. Selective information is 
misinformation” (NY Times, 27 August 02). In yet another blow to Ashcroft’s 
dream of establishing a post-Constitutional police state, Judge Nancy 
Edmunds of the Federal District Court in Detroit ruled recently that either 
Ashcroft would have to raise formal charges against Haddad in an open court 
of law or release him within ten days (NY Times, 18 September 02).

These decisions recognize that free speech is useless without meaningful 
information and that secret hearings contradict the spirit of public 
scrutiny enshrined in the Constitution. Similar sentiments have been echoed 
in cases in New Jersey and Washington, thus demonstrating not only that free 
speech is alive and well but that the Patriot Act’s ham-fisted assault on 
civil liberties may provoke Constitution-defending courts to expand our 
understanding of the First Amendment (see Edward Klaris in The Nation, 10 
June 02). The lesson here, then, is that activists should continue using 
alternative media outlets such as WEFT, the Public-i, and the 
Champaign-Urbana Independent Media Center to fight for peace and justice in 
full confidence that their First Amendment rights will be defended in the 
courts as the truest form of patriotism.

The Fourth Amendment: The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and seizures, 
shall not be violated and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place to 
be searched, and the persons or things to be seized.

The Patriot Act administers a beating to the Fourth Amendment. For example, 
in Section 213, “Authority for Delaying Notice of the Execution of a 
Warrant,” the Act amends the traditional understanding of the Fourth 
Amendment to grant the court serving a warrant the right to delay notice “if 
the court finds reasonable cause to believe that providing immediate 
notification of the execution of the warrant may have an adverse result.” 
Translated, that means that your Fourth Amendment right to be secure in your 
persons, houses, papers, and effects against unreasonable searches is dead. 
Indeed, the bulk of Title II of the Act, entitled “Enhanced Surveillance 
Procedures,” grants the federal government almost limitless powers “to 
intercept wire, oral, and electronic communications relating to terrorism” 
(that’s the heading of Section 201).

The key to triggering these powers is the government’s ability to argue the 
“probable” threat of terrorist activity. Leaving aside the slippery nature 
of the term “probable,” measuring the Act’s impact on the Fourth Amendment 
essentially hinges on its definition of terrorism. In subsection F.IV of 
Section 411, “Definitions Relating to Terrorism,” the Act defines “terrorist 
activity” as covering anyone or any group that attempts “to commit or to 
incite to commit, under circumstances indicating an intention to cause death 
or serious bodily injury, a terrorist activity; to prepare or plan a 
terrorist activity; to gather information on potential targets for terrorist 
activity; or to solicit funds or other things of value for a terrorist 
activity.” This definition seems clear and sensible, but a more ominous 
definition is given in Section 802, where domestic terrorism is defined as 
any activity that is intended “to influence the policy of a government by 
intimidation or coercion.” Are strikes a form of coercion? Are non-violent 
acts of social disobedience acts of intimidation or coercion?

We may answer that question in part by turning to President Bush’s executive 
order authorizing military tribunals, where he defined a terrorist as any 
non-US citizen who “has engaged in, aided or abetted, or conspired to 
commit, acts of international terrorism, or acts in preparation therefore . 
. . to cause injury to or adverse effects on the US, its citizens, national 
security, foreign policy, or economy” (NY Times, 14 Nov. 01). Although 
specifically targeting non-US citizens, it is clear that applying this broad 
definition of terrorism to the Patriot Act’s assault on search and seizure 
policy means that anyone working against US foreign policy may find their 
phones tapped, or that anyone protesting the WTO may find their email 
monitored, or that anyone protesting at nuclear missile sites may be held 
without warrant as a terrorist threatening national security. In short, the 
language defining terrorism is so broad---who defines “adverse 
effects”?---that it grants federal authorities a frighteningly wide range of 
options for turning protesters into terrorists and thus people for whom, 
according to the Patriot Act, traditional Fourth Amendment protections no 
longer apply.

The only oversight for these powers is the Foreign Intelligence Surveillance 
Court of Review (FISA-CR), a three-member panel empowered to hear appeals 
regarding the Foreign Intelligence Surveillance Court (FISA), an 11-member 
group established in 1978 to oversee government requests for wiretaps and 
other means of intelligence gathering above and beyond normal legal 
procedures. Although FISA has approved more than 10,000 such requests over 
the past twenty years without rejecting even one---a remarkable record of 
rubber-stamping government intervention!---it nonetheless argued in a 
memorandum dated 17 May 2002 that the FBI had committed “errors in some 75 
FISA applications related to major terrorist attacks.” Furthermore, FISA 
observed in this memorandum that “In virtually every instance, the 
government’s misstatements and omissions in FISA applications and violations 
of the Court’s orders involved information sharing and unauthorized 
disseminations to criminal investigators and prosecutors.” Translated, this 
means that even FISA, a super-secretive Court with a history of approving 
wire-taps and other forms of government intervention, finds that Ashcroft 
has sought to use Patriot Act powers to bridge the gap between foreign 
intelligence operations and domestic criminal investigations, and to do so 
by lying repeatedly (FISA’s memorandum is available on-line at 
http://news.findlaw.com/cnn/docs/terrorism/fisa51702opn.pdf).

By denying Ashcroft’s grab for more snooping authority FISA has led Ashcroft 
to appeal to the higher FISA-CR (see NY Times, 23 August 02 and 27 August 
02). If FISA-CR upholds FISA’s refusal of Ashcroft’s request then Ashcroft’s 
last resort would be an appeal to the Supreme Court, hence bringing these 
issues regarding surveillance and the Fourth Amendment to the attention of 
the highest court in the land. Given the recent election debacle, however, 
it is hard to place any faith in the Supreme Court, meaning that activists 
concerned with protecting the Fourth Amendment should make use of the free 
speech rights discussed above to make these hearings part of our larger push 
to derail Ashcroft’s hijacking of the Constitution.

For brevity’s sake I will discuss the Fifth and Sixth Amendments together:

The Fifth Amendment: No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment or indictment of a Grand 
Jury, except in cases arising in the land or naval forces, or in the 
Militia, when in actual service in time of War or public danger; nor shall 
any person be subject for the same offence to be twice put in jeopardy of 
life or limb, nor shall be compelled in any criminal case to be a witness 
against himself, nor be deprived of life, liberty, or property, without due 
process of the law; nor shall private property be taken for public use, 
without just compensation.

The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, by an impartial jury of the State 
and district wherein the crime shall have been committed; which district 
shall have been previously ascertained by law, and to be informed of the 
nature and cause of the accusation; to be confronted with the witness 
against him; to have compulsory process for obtaining Witnesses in his 
favor, and to have the Assistance of Counsel for his defense.

The most obvious blow to the Fifth and Sixth Amendments has been the FBI’s 
relentless dragnet for terrorists. The Justice Department reported recently 
that 1,200 suspects were arrested in the weeks following 9/11, that 750 of 
them were held on immigration violations, and that all but 74 of these 750 
have since been expelled from the country (NY Times, 11 July 02). Thus the 
federal government uses INS technicalities to justify what amounts to sweeps 
through immigrant communities where the Fifth and Sixth Amendments appear to 
be dead. David Cole reports that the number of detainees may be as high as 
2,000 (see The Nation, 23 September 02 and Amnesty Now, Spring 02), while 
Amy Goodman has repeatedly argued on “Democracy Now” (the Pacifica news 
show, available on WEFT, 90.1 FM, every weekday at 4:00) that there have 
been as many as 3,000 arrests in the New York City area alone.

Consider the case of the Board of Immigration Appeals (BIA), the lone source 
of appeal for anyone caught in such INS-swathed War on Terror deportation 
proceedings. Currently a 19-member board, Ashcroft has just announced that 
he is slashing the BIA back to 11 members. Typically handling as many as 
30,000 cases per year, Ashcroft has ordered the BIA to clear its backlogged 
cases by March of 2003, leaving the now reduced BIA roughly five months to 
handle an overwhelming number of cases. Do the math: if the BIA has to hear 
even 20,000 cases by next March, with 11 members serving, then that means 
that each judge will need to decide on 363 cases per month, 91 per week, 18 
per day, 2 per hour (assuming a nine hour work day). This means that the 
Patriot Act grants the government the authority to make arrests where the 
only recourse, if lucky, is 30 minutes before an over-worked BIA judge. 
Additionally, Deidre Davidson reports that last year 36% of those who 
appeared before the BIA had no legal counsel, thus directly violating the 
Sixth Amendment (see “Immigration Rights Community Outraged,” available at 
www.talkleft.com).

As ordered by Ashcroft, then, the BIA cannot possibly function as a court 
that honors due process or that provides defendants the aid of legal 
counsel. In short, thousands of immigrants are being deported at the whim of 
federal agents, thus practicing precisely the kind of unilateral and 
extra-judicial state powers that the Fifth and Sixth Amendments were meant 
to protect against. Nonetheless, as Champaign activists learned this summer 
when AWARE organized mutual aid for Ahmed Bensouda, grassroots pressure can 
shed light on such injustices and make it clear to federal authorities that 
we will not stand idly by while they arrest our neighbors.

Checks and Balances in the Balance

The news on civil liberties one year after 9/11 is therefore complicated and 
contested.

Ashcroft’s attack on the BIA is clearly intended to destroy the possibility 
of checks and balances regarding immigrant deportation hearings, yet as the 
Haddad case demonstrates, US courts may not roll over as easily as Ashcroft 
and Bush may have hoped. A similar power struggle is evident in recent 
Washington gamesmanship. Suspecting as we all do that Ashcroft is attempting 
to circumvent the rule of law, the House Judiciary Committee (HJC) has 
recently requested information from the Justice Department regarding its 
handling of Patriot Act powers.

The Justice Department has responded by sending written answers not to the 
HJC but to the House Intelligence Committee (HIC) (see NY Times, 15 August 
02, A14). This misdirection is politically important, for the generally 
critical HJC plans to hold hearings into the response to 9/11, whereas the 
in-bed-with-the-administration HIC does not. In effect, then, the Justice 
Department has sent its answers to a dead letter office, to a bureaucratic 
black hole where no one will study their response. The HJC could therefore 
use support from activists in making an even more forceful and public push 
to make the Justice Department submit to the lawful process of checks and 
balances.

As always, then, it is up to grassroots activists to use their First 
Amendment rights to hold the government accountable. Indeed, more than ever 
the old motto “use ‘em or lose ‘em” appears to be true: for democracy in 
America to survive, now is the time to make some noise.
For more printed information on these topics see the most recent press 
releases from the American Civil Liberties Union at www.aclu.org, the 
materials collected under “Justice and Human Rights” by Amnesty 
International at www.amnestyusa.org/usacrisis, and the documents under 
“Homefront Confidential” by The Reporters Committee for Freedom of the Press 
at www.rcfp.org; for audio updates listen to “Democracy Now” on WEFT, 90.1 
FM, Monday through Friday from 4:00-5:00 and “Free Speech Radio,” also on 
WEFT, every Monday through Friday from 5:00-5:30; to get involved locally 
log on to www.anti-war.net.

Stephen Hartnett is Assistant Professor of Speech Communication at The 
University of Illinois. He is the author of Democratic Dissent & The 
Cultural Fictions of Antebellum America, which recently won the Winans and 
Wichelns Memorial Award for Distinguished Scholarship in Rhetoric and Public 
Address. He is co-author with Robert James Branham of Sweet Freedom’s Song: 
“My Country Tis of Thee” and Democracy in America. His first book of poems, 
Democracy is Difficult: Investigative Prison Poems, will be published this 
spring. He has taught college in prisons for nine years and has spent the 
past four years working on The Waiting Room, an interactive art installation 
organized around community conversations about the death penalty.

For use by dryerase-members. Please send an email to 
imc-print at urbana.indymedia.org when reprinted.

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