injusticebusters logo

U.S. tosses fourth amendment

Muslims denounce U.S. Patriot Act

LONG BEACH, CA - The USA Patriot Act, passed in response to the Sept. 11, 2001 terrorist attacks, is the biggest threat to democracy in the United States, Muslim leaders and activists said Saturday.

The denunciation at a Muslim-American convention came days after vocal protests were held over the detention of hundreds of Middle Eastern immigrants who voluntarily registered with the U.S. Immigration and Naturalization Service under new federal guidelines.

Speakers at the Muslim Public Affairs Council convention called on the public to challenge the Patriot Act, which they called an unconstitutional law that violates basic civil liberties.

They also urged the roughly 1,500 people attending the convention to demand the news media provide diverse perspectives on the potential war against Iraq to complement the official U.S. government stand.

"The Patriot Act is the biggest attack on democracy in America right now," council board chairman Omar Ricci said in his opening speech at the two-day annual conference.

The Patriot Act, approved in October of 2001, gave the government new powers to obtain personal information about U.S. citizens and allows the government to detain aliens deemed threats to national security and hold them without public acknowledgment.

It also has given federal law-enforcement agencies greater wiretap authority, access to student and library records and new Internet wiretap powers.

Bryan Sierra, a spokesman for the U.S. Department of Justice, defended the Patriot Act as "an incredibly valuable tool in the war on terrorism."

"Ultimately, the question of civil liberties and what infringes on the Constitution is a matter for the courts to decide," Mr. Sierra said in a telephone interview from Washington.

"But the ultimate goal here is liberty and safety and the security of Americans."

Francisco Arcaute, an INS spokesman in Los Angeles, declined comment Saturday.

Justice Department lawyer Joseph Zogby, who attended the conference, said he would relay the council's concerns about alleged civil rights abuses to the U.S. Attorney-General. He also said the department does not have control over INS policies.

Mr. Zogby, who works in the department's post-Sept. 11 hate crimes investigation division, urged people to register civil rights complaints.

Council board member Gasser Hathout compared the Patriot Act to the Sedition Act of 1789, which made it illegal to criticize president John Adams. He said civil liberties also came under attack in the 1950s from the U.S. House of Representatives Un-American Activities Committee and in the 1960s when the FBI investigated civil rights activists and Vietnam War opponents.

"I'm calling on people not to surrender their civil rights," Mr. Hathout said after a morning panel discussion.

"They are not mutually exclusive things, security or civil rights."

Mr. Hathout said he has statistics showing since the Patriot Act was approved, the number of federal subpoenas of phone and Internet records have been doubling every month and have reached into the thousands.

He also urged the audience not to be cowed into silence about the potential war with Iraq or restrictions on their civil liberties.

Panelist Amy Goodman, a host of the national radio program Democracy Now!, said the public can affect the media's coverage of the war. She recalled a Sally Jessy Raphael talk-show episode she participated in during the Persian Gulf War that was nearly cancelled before callers urged the show's producer to broadcast it.

Court's ruling gives FBI frightening new power that can't be reined in

My Two Cents

One month after Sept. 11 last year, the House of Representatives and the Senate both passed the USA Patriot Act -- a significant feat considering the document is 1,000 sections long. The act gave the government, particularly the FBI, significant powers that most would think violated the Fourth Amendment rights of American citizens.

My original thought on the act was that it was giving the government far too much power and taking away many liberties given to us by the Constitution. I had hopes the powers would eventually be ruled unconstitutional by the Supreme Court and those of us who believe in liberties would be content again, but that's not happening. In fact, the exact opposite is occurring.

On Tuesday, a special federal appeals court, the United States Foreign Intelligence Surveillance Court of Review, in its first decision ever, overturned the Foreign Intelligence Surveillance Act Court. The Court of Review's unsigned decision gave new powers to the Justice Department to use wiretaps to prosecute terrorists, rather than the original intent of obtaining only intelligence information.

So at this point, you are probably like, "What the hell does that jargon mean, and why do I care?" Well, basically it means intelligence wiretaps, which have a standard of proof lower than criminal wiretaps, can now be used to prosecute people for crimes they didn't even know they were under investigation for.

Basically, the criminal and intelligence sides of the Justice Department can share information more openly than they could before. The person most excited about Tuesday's decision was Attorney General John Ashcroft, who has already said, according to the New York Times, "that he would use it to greatly expand the use of the special intelligence court by prosecutors to obtain wiretaps of people suspected of involvement with terrorists." People suspected of involvement with terrorists really means anyone who looks foreign who says one bad thing about the government. Ashcroft also commented that "this is a giant step forward."

Yeah, a giant step forward for taking away more of our civil liberties. This country was founded on the assumption that all people have certain inalienable rights. As we all know, "all people" originally meant all white males. Eventually, however, it was expanded to include all people, regardless of race, gender, ethnicity or religion. But is that really true in America post-Sept. 11? I don't think so.

My real complaints, however, about the Court of Review's decisions are the court's lack of experience with this type of ruling and the fact that the decision cannot be appealed. This was the Court's first decision. All three members of the court, Ralph B. Guy of the United States Court of Appeals for the Sixth Circuit, Edward Leavy of the Court of Appeals for the Ninth Circuit and Laurence H. Silberman of the Court of Appeals for the District of Columbia Circuit, were appointed by conservative, liberty-hating Chief Justice William H. Rehnquist. This is a pretty important case to be heard by a court that has never heard anything before.

My other problem with this decision is that because of the unique court and circumstances involved, there is not a party that can appeal the decision. The only party in the case was the Justice Department, which obviously won the case. The ACLU and the National Association of Criminal Defense Lawyers both submitted amicus curiae (friend-of-the-court) briefs, but neither were actually parties in the case.

I see a definite conflict of interest here. Three judges, who are obviously allied with the Justice Department, rule unanimously on a case in favor of the Justice Department that cannot be appealed to the Supreme Court because there is no opposing party. What kind of case has no opposing party? In my opinion, the kind that has already been decided. Liberals and civil libertarians are often accused of being un-American because we believe we deserve to have certain rights, especially those concerning civil liberties.

In reality, we are more American than those who believe we should have our liberties limited because we think that all people should have all their rights protected. I'm sorry to be so judgmental of the government, particularly John Ashcroft, but let's face it: we all know most white males will never be suspected of being involved in terrorist activities, but people who look Middle Eastern at all, regardless of where they were born or whether they are citizens, are suspects automatically. The Justice Department has already taken enough of our liberties away. I think it's time we as citizens step up and say no. Sept. 11 was a tragedy enough itself; let's not turn it into a civil liberties tragedy as well.

Court overturns limits on wiretaps to combat terror

WASHINGTON, Nov. 18 - A special federal appeals court ruled today that the Justice Department has broad new powers under the antiterrorism bill enacted last year to use wiretaps obtained for intelligence operations to prosecute terrorists.

The immediate effect of the ruling by the three-member panel is that criminal prosecutors may now take an active role in deciding how to use wiretaps authorized by a special intelligence court and should have greater access to information obtained from them. For more than 20 years, prosecutors have been prohibited from making decisions on which intelligence wiretaps to apply for because the standards of proof are widely believed to be lower than for regular criminal wiretaps.

But the judges today said that the passage of the legislation, the USA Patriot Act, ensured that there is no wall between officials from the intelligence and criminal arms of the Justice Department. In fact, the judges asserted that the 20-year-old practice of keeping the two largely separate was never required and was never intended by Congress.

"Effective counterintelligence, as we have learned, requires the wholehearted cooperation of all the government's personnel who can be brought to the task," the panel wrote. "A standard which punishes such cooperation could well be thought dangerous to national security." [Excerpts, Page A19.]

Today's unanimous ruling was a significant victory for Attorney General John Ashcroft, who announced immediately that he would use it to greatly expand the use of the special intelligence court by prosecutors to obtain wiretaps of people suspected of involvement with terrorists.

"This is a giant step forward," Mr. Ashcroft said at the Justice Department, adding that he would swiftly increase the number of lawyers both at the Federal Bureau of Investigation and in prosecutors' offices around the country to seek authorization for new wiretaps and surveillance orders to combat terrorism.

"This revolutionizes our ability to investigate terrorists and prosecute terrorist acts," he said.

The ruling also adds momentum to the Bush administration's determination to shake off restrictions on how investigators have operated since the Sept. 11 attacks, including the lifting of restrictions on investigators using the Internet to compile databases for combating terrorists. It may also oblige the F.B.I. to share information gathered by its counterintelligence agents more readily.

Both the appeals court and the court whose opinion it overturned today were created solely to administer a 1978 law allowing the government to conduct intelligence wiretaps inside the United States. The three-member appeals court, the United States Foreign Intelligence Surveillance Court of Review, in issuing its first opinion ever, said that the lower court, the Foreign Intelligence Surveillance Act Court, had erred when it tried to impose restrictions on the Justice Department.

The Court of Review, which had never met before and essentially existed on paper, is made up of Judges Ralph B. Guy of the United States Court of Appeals for the Sixth Circuit; Edward Leavy of the Court of Appeals for the Ninth Circuit; and Laurence H. Silberman of the Court of Appeals for the District of Columbia Circuit. All were appointed to the panel by Chief Justice William H. Rehnquist of the Supreme Court.

Because of the unusual nature of the law on which the case was decided it is unclear whether anybody is in a position to appeal today's ruling to the Supreme Court. The only party was the Justice Department, which won; the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, who filed briefs, were afforded only friend-of-the-court status, which does not entitle them to appeal.

Ann Beeson, a litigation director at the civil liberties union, said her group was exploring whether to seek to be allowed to intervene as a party.

The case arose in May when the lower court, which decides whether to grant intelligence authorizations, ruled on an application submitted by Mr. Ashcroft's investigators. At the time, the court ordered the government to meet certain conditions to obtain the authorization to wiretap an individual who is identified in court papers only as a resident of the United States who is working as an agent of a foreign power.

The three members of the lower court ordered the Justice Department to show that the primary purpose of the application was for intelligence gathering and not a criminal case. Moreover, the court ordered that prosecutors in the Justice Department's Criminal Division could not take an active role in directing the activities of the intelligence division.

The notion of a separation arose in the 1980's and was put into department regulations in 1995. The reason was that the requirements for obtaining a wiretap for intelligence gathering were thought to be easier to meet than those for a straightforward criminal investigation. As a result, investigators were instructed not to try to avoid the stricter standards for a criminal investigation by pretending it was for intelligence.

Although the world of national security wiretaps has always been conducted out of public view, Mr. Ashcroft's challenge of the lower court ruling exposed the debate in the government over the balance between civil liberties and national security that heated up after Sept. 11.

In an unsigned opinion, the appeals court unanimously ruled that Mr. Ashcroft was correct in saying that the USA Patriot Act swept away the distinctions between the intelligence and criminal sides of the national security operations. Even more striking in the court's ruling was the strong assertion that the restriction that had been observed for two decades was never required.

The appeals court noted that the lower court had said there was a "wall" between the investigative and intelligence sides. But the judges today said that there is not and never was supposed to be a wall between the two and that the Justice Department contributed to this mistake by writing it into its regulations.

The appeals court was harsh in its language directed at the lower court for trying to retain a wall between intelligence officials and prosecutors. The panel said that the judges on the FISA court, as the lower court is known, were improperly trying to tell the Justice Department how to run its operations and that that was a violation of the Constitution's separation of powers between equal branches of government.

The lower court ruling was written by Judge Royce C. Lamberth, who was until recently the chief judge of the FISA court. Judge Lamberth had complained angrily that Justice Department officials had frequently misled the court by claiming they were seeking wiretap authorization for intelligence gathering but had been deceptive in that they were trying to obtain a wiretap for a criminal investigation.

The appeals court also asserted that the requirements for obtaining wiretap authorization under the intelligence law were not that different in a constitutional sense from the requirements for obtaining a warrant in a criminal case, challenging a widely held assumption. Applications for criminal warrants must comply with the Fourth Amendment's proscriptions against intrusive searches and require an official declaration that there is "probable cause" to believe the subject is involved in a crime. By contrast, the intelligence surveillance law requires only a showing that there is probable cause that the subject is the agent of a foreign power.