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The
Patriot Act was passed six weeks after 9/11. There were no
public hearings, committee reviews or congressional debates and
many in congress later admitted that it passed before they had
time to even read the entire bill. Acting out of feelings
of vulnerability, anger and fear, it was quickly adopted without
critical analysis. Civil libertarians challenge this act
as too high a price to pay for some fantasy of national safety.
It sacrifices our freedom of speech and association in the name
of national security, and it undermines our Fourth Amendment
rights of protection from unreasonable search and seizure.
The
Patriot Act attacks our privacy rights by expanding the
surveillance powers of the FBI and other law enforcement
agencies. This includes tracking e-mail and internet use,
examining library and bookstore records, obtaining sensitive
personal records from third parties such as doctors, and
monitoring financial transactions. The people being
placed under surveillance need not themselves be suspected of
any terrorist or criminal activity. “Sneak and peak”
searches allow covert searches of your home or office with
“delayed notification”. Property can be copied or
taken without informing the person and no time limit is set on
how long notification can be delayed. The FBI may seize
“any tangible thing” related to an ongoing investigation.
For example, this could include notebooks, audiotapes or
computer discs, files or records in the possession of a
journalist working on a story about terrorism.
A
foreign Intelligence
Surveillance Court operates in secret, approving wiretaps and
electronic surveillance. Before the Patriot Act,
surveillance was limited to the gathering of foreign
intelligence, but now it is being used for domestic spying and
even for criminal investigations. This court meets twice a month
in Washington, D.C. and is made up of eleven federal judges.
Warrants are issued which can then be applied by law enforcement
agencies to an infinite number of specific situations.
“Roving surveillance” permits investigation, not only of the
original suspected individuals or organizations, but also of
everyone that has contact with them or is associated in any way.
Court orders routinely contain a gag order preventing anyone,
including the person being targeted, from revealing that the
investigation is taking place. Obviously, this eliminates
the possibility of a legal challenge or court review of how the
warrant is being enforced. Warrants cover multiple persons
at multiple locations, existing for an extended period of time.
Thus a court order for access to the computer records of an
organization could produce information on thousands of people
over several months or even years.
The
American Bar Association has called for closer congressional
oversight of these investigations, concerned that a body of
secret case law and precedents are being developed without
judicial review. Executive orders restrict the ability of courts
to hear constitutional challenges to this act, and Attorney
General Ashcroft continues to claim that specific information
about how the Patriot Act is being interpreted is classified and
that it cannot be released to the House Judicial Committee.
The Patriot Act is the first law in American history that is
protected from this judicial review process.
Section
802 of the Patriot Act creates the crime of domestic terrorism.
The Secretary of State can arbitrarily classify any organization
as domestic terrorist if they are intended to influence the
policy of the government or the population by intimidation or
coercion. Any violent acts dangerous to human life that violate
state or criminal law for the purpose of influencing government
policy could result in that organization or individual being
classified as a domestic terrorist. Such a classification does
not require that the organization have any contact with a
foreign government or with an international terrorist group.
MAJOR
PROVISIONS OF THE PATRIOT ACT
* Increased government surveillance powers with less
or no meaningful congressional or judicial oversight
*
financial transactions, and conduct national roving wiretaps
* Broadened
the definition of “domestic terrorism” so that it could
possibly include domestic protest groups and activists of civil
disobedience
* Sneak-and
Peek Searches-cover searches of a person’s home or office
conducted without notifying the person of the execution of the
search warrant until after the search has been completed
*
Allows the Department of Justice to indefinitely detain
non-citizen immigrants without criminal charges
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The F.B.I. Messes Up
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The Justice Department and the
Federal Bureau of Investigation ought to hang their
heads in shame over the mistaken arrest and jailing of a
Muslim lawyer in Oregon who was supposed to be a
material witness in the Madrid train bombing case. The
arrest turned out to be based on a faulty fingerprint
identification by F.B.I. "experts." That
finding was ultimately retracted when more careful
Spanish investigators concluded that the fingerprint had
actually been left by a different man. Federal
authorities apologized for the error and the unjustified
jail time, but they still have a lot of explaining to
do. The case smacks of a rush to judgment based on
flimsy evidence. Clearly fingerprint analysis is not the
gold standard it is cracked up to be. The method itself
is not foolproof, and the analysts who provide the final
judgment sometimes make the wrong call.
The fiasco started when the Spanish
police sent the F.B.I. digital photographic images of
some partial latent fingerprints taken from a plastic
bag found in a van linked to the Madrid bombings. An
automated searching system compared the images with
millions of prints on file and came up with possible
matches. F.B.I. analysts made the final judgment that a
print submitted from Spain was identical to prints on
file for Brandon Mayfield. Three F.B.I. examiners
considered the match to be a "100 percent
identification" of Mr. Mayfield. A court-appointed
examiner agreed.
Shortly thereafter, the Spanish
authorities cast doubt on that judgment, but the Justice
Department sought Mr. Mayfield's detention anyway, based
on the F.B.I.'s insistence that it had identified the
right man. Investigators offered other evidence that
appeared to cast suspicion on Mr. Mayfield. He had
represented a man in a custody dispute who later pleaded
guilty to conspiring to help Al Qaeda fight American
forces in Afghanistan. He had attended a local mosque
and placed ads for his law practice in a publication
whose owner was linked to terrorists. A phone call was
made between his home and the number of the local
director of an Islamic charity who was suspected of
terrorist ties abroad. All that now looks coincidental.
The F.B.I. blames its error on an
image of substandard quality sent by the Spanish police.
But it is shocking that the F.B.I. would initially
express certitude based on one partial print. The United
States attorney in Portland insists that religion had
nothing to do with the investigation because Mr.
Mayfield was not under suspicion when the F.B.I. first
analyzed the prints. But the decision to lock up Mr.
Mayfield was clearly influenced by his Muslim ties. It
is sobering evidence that the current legal crackdown on
suspected terrorists can yield injustice for those who
are innocent.
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