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Can Patriots Survive the Patriot Act?

By Alan Caruba

Like everyone else I will be celebrating the Fourth of July as the birthday of our great nation, but I will be doing so with a nagging sense of foreboding about how much longer it will still be a nation that protect the rights set forth in the Constitution.

It is an aspect of politics, liberal or conservative, that those who believe in America’s historic role come together when the Constitution is threatened.

Walter M. Brasch, Ph.D., is as liberal as I am conservative. He teaches journalism at Bloomsburg University in Pennsylvania. His latest book, America’s Unpatriotic Acts: The Federal Government’s Violation of Constitutional and Civil Rights ($24.95, Peter Lang Publishing, New York) was recently published and it documents how the Patriot Act and its enforcement should scare the daylights out of everyone.

I find myself in the company of some of the most famed liberals, Noam Chomsky and Paul Krassner, among others, recommending that anyone concerned about where this nation is currently headed, read Dr. Brasch’s book.

Within six weeks of September 11, 2001, Congress approved the USA Patriot Act. Only a few of its members had an opportunity to read its 342 pages before they cast their vote. Only one of a hundred senators voted against it, joined by sixty-six of the 435 members of House of Representatives.

The great service Dr. Brasch has rendered is to have meticulously documented the ways elements of the Bill of Rights have been trashed. “Enforcement of the Patriot Act butts against the protections of six amendments to the Constitution: the First (freedom of religion, speech, press and assembly, and the right to petition the government for redress of grievances.) Fourth (freedom from unreasonable search). Fifth (right against self-incrimination and due process). Sixth (due process, the right to counsel, a speedy trial, and the right to a fair and public trial by an impartial jury). Eighth (reasonable bail and freedom from cruel and unusual punishment), and Fourteenth (equal protection guarantee for both citizens and non-citizens).”

The Patriot Act was written in secrecy and rushed through Congress at a time when Americans, including myself, were very scared. The prospect of more horrific attacks loomed large in our imagination. The fear of Muslim members of our population, both native-born and naturalized, was palpable. The desire for retribution against our enemies was satisfied initially by the use of military force in Afghanistan to drive out the Taliban.

None of this, Dr. Brasch, rightly concludes justified then or now rendering the Bill of Rights a mere platitude. The Act was a composite of three separate acts; the Foreign Intelligence Surveillance Act of 1978 (FISA), “passed during the Cold War when there had been increased worldwide terrorism, especially in the Middle East”, the Antiterrorism and Effective Death Penalty Act, passed in 1996, and what Dr. Brasch describes as “a massive overreaching bill that same year that did not meet Congressional approval.”

Much of the Patriot Act, Dr. Brasch concedes is non-controversial, being largely administrative or allowing funds for the pursuit of terrorists, permitting federal law enforcement to hire more translators (in 2001 the FBI had, perhaps, two on staff who could translate Arabic or Farsi. As a result, information that might have prevented 9-11 went untranslated.) More importantly, however, “Prosecutors, from small towns to the federal government, already had legal and constitutional authority to pursue anyone they believed was either knowledgeable about a crime or had committed a crime.” (Emphasis added).

On October 26, 2001, the Patriot Act gave the Justice Department and others like the then-Immigration and Naturalization Service, vast new powers to operate in secret. It “reduces judicial oversight of telephone and Internet surveillance.” It “also allows secret searches to seize an individual’s property without notifying that person even after the seizure (Section 806); and ‘sneak and peak’ searches (Section 213) without notifying the citizen, to allow a search (of) the premises when the subjects are away, not just for investigation of potential terrorism cases, but also for ‘any criminal investigation.’”

Anyone who has read my weekly commentaries knows I am no friend of Muslims who think ill of the United States or who plan to harm it. When the Twin Towers were first bombed in 1993, one of the conspirators lived in my former hometown. However, that man received a fair trial. Under the Patriot Act, there is simply no way of knowing how many Arab-Americans have been rounded up and/or deported without having had any connection to 9-11.

Even now, having supported the invasion of Iraq to eliminate the threat of Saddam Hussein to his own people and every other nation in the region, I find myself troubled by the way the government of the United States has concocted something called “an enemy combatant” and kept them far from any judicial or congressional oversight in Camp Delta in Guantanamo. One worries, too, that the justifications for the invasion have proven vacant.

Simply stated, if the United States is to be the exemplar of freedom, it must conduct itself within the limits of the Constitution and with respect for the Geneva Convention. When such laws are jettisoned in the name of “national security”, there is no security for any American.

Even the Justice Department’s inspector general, in 2003, reported that the detention of individuals in the United States was “indiscriminate and haphazard” and that there were “significant instances” of “a pattern of physical and verbal abuse” that included beatings of illegal immigrants, most of whom were Muslim or Arab, almost all of whom were imprisoned, notes Dr. Brasch, for minor offenses. Why does this remind me of the shameful internment of Japanese-Americans during World War II?

David A. Keene, chairman of the American Conservative Union, spoke out against what occurred in the wake of 9-1 and the USA Patriot Act. “Where I fault with (the Department of) Justice and the attorney general is in the disingenuous way they defended the Patriot Act and then tried to imply that anyone who faults the act is either in league with terrorism or not sensitive to terrorism.”

Another conservative, former member of Congress, Bob Barr, expressed grave reservations about Sections 411 and 412 of the USA Patriot Act that permit the Secretary of State to designate American groups as “terrorist organizations.” Under Section 802, it permits the government to define any organization opposed to government policies or which is involved in civil disobedience as being a terrorist threat to the security of the United States, and denies them the right to advocate their views or fund-raise to secure support for them.” Barr said this “has an Orwellian effect on speech and political advocacy, especially direct action advocacy, arguably the most effective grassroots technique to influence political change.”

To be a true conservative, one must extend these and other enumerated Constitutional rights to liberal and other organizations with whom one may vehemently disagree.

It is the worst kind of foolishness to think that the federal government is going to nobly enforce the USA Patriot Act without yielding to the temptations of its authoritarian powers. This piece of legislation needs to be significantly reformed to insure judicial oversight remains an essential element of investigate actions and law enforcement.

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