Brigitte Anderson
President
Montana ACLU
William Rossiter
English and Humanities
Flathead Valley Community College
The abusive techniques used by the FBI in COINTELPRO from 1956 to 1971 included violations of both federal and state statutes prohibiting mail fraud, wire fraud, incitement to violence, sending obscene material through the mail, and extortion. More fundamentally, the harassment of innocent citizens engaged in lawful forms of political expression did serious injury to the First Amendment guarantee of freedom of speech and the right of the people to assemble peaceably and to petition the government for a redress of grievances (Church Committee Report, 1976).
Thus spake the Senate's 1976 "Church Committee" in the four thousand-page report taking the FBI and the CIA to task for snooping into American lives on the cynical pretext of "gathering foreign intelligence." In response to these abuses, Congress passed the 1978 Foreign Intelligence Surveillance Act (FISA), which, though flawed, was at least a considered attempt to rein in these runaway agencies. FISA was intended to maintain Constitutional safeguards for domestic criminal investigations, but to establish less rigorous rules for conducting "foreign intelligence" investigations. To conduct a search in a criminal investigation, for instance, the FBI needs a court-ordered warrant based on "probable cause," that is, the reasonable suspicion that a crime has been or will be committed. FISA investigations, on the other hand, allow warrantless searches of a "foreign power" or an "agent of a foreign power" for national security purposes subject only to oversight by the secret FISA court. The FISA strictures ostensibly prevented spying on U.S. citizens unless there was a tight nexus to criminal activity (see Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. section 1804 et seq.). But a skeptic might wonder at the judicial independence of the FISA court in these cases: between 1979 and 1998 it has approved over 10,000 FISA search or surveillance orders. From 1990 until 2000, only one was denied.
In all but extraordinary criminal investigations, Fourth Amendment protections prohibit secret searches and allow the target of a search to challenge the warrant's scope and validity. In addition, criminal investigators must usually report the results of a search to a judicial authority. These safeguards are intended to keep investigators accountable to a judicial authority. Under FISA, however, agencies can conduct a search without informing the target or reporting the results of the search to the judiciary. FISA searches and surveillance, then, operate with little judicial oversight and outside the Constitutional safeguards for criminal investigations--but do so on the grounds that the targets are foreign powers or their agents and that the search is for foreign intelligence, not for prosecuting crime.
Then came the monstrous attacks of September 11, 2001, and within six weeks President George W. Bush signed what Rep. Barney Frank of Massachusetts called "...a bill drafted by a handful of people in secret" (Dreyfuss, 2001). Exerting tremendous pressure on both houses of Congress, Attorney General Ashcroft and the Administration pushed through the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA-PATRIOT ACT) of 2001 (a title worthy of Orwell, usually abbreviated USAPA). This act drastically cuts back on the checks and balances that protect Americans' civil liberties and privacy, weakens the already permissive guidelines of FISA, makes it easier for investigative agencies to apply these weaker FISA standards to what should be domestic criminal investigations, and returns to investigative agencies the powers to violate constitutionally protected rights. Among the most troubling provisions of USAPA are:
It again (or further) blurs the line between domestic criminal investigation and foreign intelligence surveillance, subverting the intent of FISA.
It strips the courts of what little authority they had to oversee search and surveillance operations and to review the results of these activities.
It expands enormously the government's power to spy on Americans and to invade their privacy, again reversing the intent of FISA.
A significant change under USAPA is that FISA court orders can now be used for any investigation as long as law enforcement certifies that intelligence gathering is "a significant purpose"--but not necessarily "the purpose"--of the investigation (Sec. 218, emphasis added). This clears the way for "fishing expeditions." FISA now authorizes large-scale investigations and surveillance of American citizens for intelligence purposes--i.e., without any probable cause to believe that a crime or potential crime is involved. To use FISA procedures for domestic investigations, the FBI need only certify that any part of the investigation involves foreign intelligence gathering or investigation of terrorism. In addition, information gathered by the FBI in a FISA investigation can, under USAPA rules, now be shared with the CIA and other agencies (Sec. 203; Sec. 901 et seq.), vesting the CIA once again with power to spy on Americans (an abuse condemned by the Church Committee).
The USA-PATRIOT Act misunderstands the role of the judicial branch of government. It treats the courts as an inconvenient obstacle to executive action rather than an essential instrument of accountability. It upsets the checks and balances that form the architecture of our constitutional democracy (Weich, 2001).
USAPA dramatically expands the government's law enforcement powers nationwide and at the same time minimizes meaningful review and oversight by an independent, politically neutral judiciary. According to USAPA, in many types of investigation the court has no oversight function and is compelled to grant an order authorizing the search of records or property if the FBI certifies that the search is part of an authorized terrorism or intelligence investigation (See e.g., Sec. 215). Because there is no requirement to report the results or details of the investigation to the court, the agency is not accountable to the court or to the public for these actions.
By stripping the courts of any meaningful oversight function and blurring the distinction between criminal investigation and foreign intelligence gathering, USAPA erodes Constitutional safeguards to our privacy. Its provisions give law enforcement virtually unfettered access to private records and communications through wiretapping and other forms of electronic surveillance as well as through physical searches (see, e.g., USPA, sec 214, 215).
The Omnibus Crime Control and Safe Streets Act of 1968, which first comprehensively addressed wiretapping, required a warrant based on "probable cause," the likelihood that the target was involved in one of a list of severe crimes (18 USC 2516 and 2518). USAPA adds domestic terrorism (discussed below) to this list of crimes, expanding the list of possible targets of surveillance. It also expands wiretap authority significantly (Sec. 201).
USAPA now provides for court orders allowing the interception of any communications made to or by an intelligence target without specifying the particular telephone line, computer, or other facility to be monitored. Such "generic" search orders, which can now be served on unnamed and unspecified persons (Sec. 206), jeopardize the privacy of many who are not targets of surveillance--users in public libraries, computer labs, computer cafes, university facilities, and the like. Based on the suspicion that the target might use a facility, the FBI can monitor all communications to and from that facility. In addition, an Internet service provider (ISP) may now voluntarily hand over all content information and customer records to law enforcement with no need for a court order or subpoena if the provider believes there is an immediate danger of death or serious injury (Sec. 212).
Formerly, trap and trace orders and pen registers (recording of numbers dialing into and out of a phone line) could be in effect only within the geographic jurisdiction of the issuing court and could be applied only to telephone communications. USAPA now expands this type of surveillance to Internet communications and allows nationwide execution of this surveillance (Sec. 216; see also 219, 220). Here again, a federal magistrate must issue the pen register or trap-and-trace order as long as the applicant certifies that the information requested is "relevant to an on-going investigation" (Sec 216). Law enforcement can later fill in the name of the place where the order is to be used--making the order a virtual carte blanche that can be executed anywhere in the country. The burden of objecting to such an order would be particularly great for a small Internet service provider or client in a remote location; a small Montana ISP, for example, might have to challenge such an order in a New York Court.
In every federal criminal investigation, USAPA now allows government agencies to delay giving notice of a warrant and to conduct secret searches for electronic data and any other material as long as they certify that notifying the target might jeopardize the investigation (Sec. 213). This standard guarantees secrecy in virtually every case, a drastic departure from Fourth Amendment safeguards.
Further, the FBI can now obtain a FISA search order compelling any business or person to produce any document, record, or other item simply by certifying that such records are relevant to an intelligence or terrorism investigation. The target of the search does not need to be the subject of the investigation--someone casually associated with the subject can find himself or herself the target of a search. The FBI can now gain access to medical and mental health records, financial records, student records, video or library rental and circulation records, DNA from hair samples, fingerprinting information, employment records, and other sensitive personal data (Sec. 215; see also, e.g., Sec. 507 on disclosure of educational records and Sec. 508 on disclosure of information from NCES surveys). Under section 215 there is no requirement that the target be informed of the search before or even after it takes place. To the contrary, persons or entities such as an ISP, a bookseller, or a library served with such an order are subject to a gag rule which prohibits their disclosing the existence of a search, and appears even to prohibit their consulting legal counsel before complying (Sec. 215). This dragnet search power has the potential of ensnaring many innocent people. Here again, the courts have been stripped of any meaningful judicial review of these actions.
Having expanded the reach of intelligence agencies to investigate terrorism, USAPA expands the definition of terrorism as well. A person commits an act of domestic terrorism if he or she engages in activities that
involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
appear to be intended--
to intimidate or coerce a civilian population;
to influence the policy of a government by intimidation or coercion; or
to affect the conduct of a government by mass destruction, assassination, or kidnapping...(Sec. 802, emphasis added).
By USAPA standards, Greenpeace and PETA activists, NAFTA demonstrators, anti-war protestors, right-to-life organizations, forest closure protesters, and other such groups could be considered "domestic terrorist" organizations if their actions "appear to be intended" to intimidate or influence civilians by coercion or intimidation. "Harboring," "concealing," "lending material support [to]," and "aiding" terrorists, acts punishable under USAPA, are also defined so broadly that law enforcement agencies have enormous latitude in applying these labels (Sec. 803, 805). A local activist could be charged with "harboring, concealing or lending material support" if he or she provided lodging for a demonstrator who later became involved in a violent protest activity.
The USA-PATRIOT Act threatens the privacy of many Americans with its circumvention of Constitutional protections but in some ways, these risks are heightened on campus.
The Family Educational Rights and Privacy Act (FERPA), designed to protect student records from prying eyes, already allows law enforcement rather broad access to student information. After September 11, but before the enactment of USAPA, government readily obtained many student records using existing exceptions to FERPA privacy rules. Over 200 colleges and universities turned over to the FBI and INS student records, including information on students' ethnicity and their pursuit of such fields of study as flight training. USAPA, however, now allows even broader access (Sec. 507, 508).
Residing in the U.S. on an academic visa has now become precarious, and some commentators are already concerned that the best and brightest international students who might have been drawn to U.S. colleges will be reluctant to face onerous investigations and invasions of privacy and will choose to study elsewhere (Lehrer, 2001).
Like other non-citizens, foreign students and academics can be detained and deported for "providing assistance for lawful activities of a group the government claims is a terrorist organization, even if the group has never been designated a terrorist organization" (American Civil Liberties Union, 2001; USAPA, Sec. 411; Immigration and Nationality Act, Sec. 219).
Non-citizens who are detained must be charged within seven days with a criminal offense or an immigration violation. Those not found guilty of a terrorism offense, but who have committed even a minor breach of immigration laws may be deported. If their country of origin refuses to accept them--not unlikely, since they will now have a record of detention by the U.S. as a possible terrorist--they may be detained by the U.S. indefinitely, possibly even for life, as long as the Attorney General certifies that he has reasonable grounds to believe that they pose a potential security risk (Sec 412). Thus, a foreign student who overstays his or her visa, a common minor offense, could be facing deportation or, in the worst case, lifetime detention. Previous grounds for dismissal of the deportation proceedings such as hardship waivers for long-term residents that had committed only a minor immigration offense are also no longer available under the USAPA (Sec. 411).
Upon the written request of a detained alien, the Attorney General must review the certification every six months but there is no requirement for a hearing. The detainees can obtain a hearing only in a federal habeas corpus proceeding where they may seek a review of the legality of their detention. These procedures, however, do not appear to have been used much so far. This is not surprising, considering that many detainees may not know their rights or may lack the funds for legal counsel (Sec. 412).
Cyber-terrorism must be taken seriously, of course, but the USAPA may ensnare computer hackers whose obnoxious acts should be punished as ordinary crimes rather than as "domestic terrorism." The USAPA extends to all activities that "...caused (or, in the case of an attempted offense, would, if completed, have caused)...physical injury to any person; ...a threat to public health or safety; or...damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security" (Sec 814). Some computer crimes, although they have little or no relevance to any known kind of terrorist activity, have been added to the list of "domestic terrorist" crimes (Sec. 810, 811, 812, 813). The bright-but-immature student who decides to experiment with a computer virus could find himself or herself facing a charge of domestic terrorism rather than the more appropriate criminal charges for damages or "cyber-crime."
"Whoever knowingly possesses any biological agent, toxin, or delivery system of a type or in a quantity that, under the circumstances, is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10 years, or both." (USAPA, Sec. 817)
The vagueness of this language might make a student or researcher think twice about entering some areas of biology aerosol mechanics. Other fields of study might be similarly dangerous: scholars of Islam and the Middle East found themselves before cameras and microphones as news agencies sought explanations for the attacks of September 11. But when they "dared to expand their search for an explanation beyond a sinister focus on terror and security" they were accused of justifying terrorism and blaming the victims (Dallal, 2002). A tenured professor at the University of South Florida brought Muslim clerics into his classes in the early 1990s as a way of establishing dialogue between Muslim and American intellectuals; when it was discovered after September 11, 2001, that some of his guests had ties with Islamic Jihad, he was fired (Rothschild, 2001).
Free speech is said to be one of the first casualties of war, and the campus is often the locus of passionate, opinionated, contrarian and, sometimes, intemperate speech. When Attorney General Ashcroft accuses those who question the administration's policies of providing "ammunition to America's enemies," dissent becomes dangerous. In the current atmosphere of suspicion and fear, dissent of even the most reasoned and temperate kind could easily trigger the kind of investigation that the Church Committee condemned and that the USAPA permits.
Already Big Brother has spawned a number of siblings. For instance, the American Council of Trustees and Alumni (ACTA), counting Vice-presidential spouse Lynn Cheney and former Vice-Presidential hopeful Joseph Lieberman among its founders, has published a list of 115 "questionable" statements gleaned from student newspapers and demonstrations, faculty lectures and speeches, and other public and semi-public occasions (Martin & Neal, 2001). Some of these statements, such as the in-class remark of a New Mexico professor that Pentagon bombers "get my vote" are clearly ill-considered and perhaps reprehensible (Martin & Neal, 2001, p. 13). Many are not. "We should build bridges and relationships, not bombs and walls" (Martin & Neal, 2001, p. 14) is hardly the proclamation of a traitor or terrorist, yet ACTA condemns such statements as being insufficiently bellicose and possibly traitorous. Such (dis)loyalty lists can have no positive effect on the robust flow of ideas that should be the common currency of the campus./1/
Already, commentators both in and out of academe are becoming reluctant to offer comments or analyses that do not jibe with mainstream rhetoric, and with some reason: a library assistant at UCLA was suspended for sending an e-mail criticizing U.S. support for Israel. A freshman at Durham Tech in North Carolina was grilled for forty minutes by Secret Service agents and a police officer investigating a report that she had a poster that seemed to threaten the president (Astman, 2002).
Criticism becomes even more precarious for non-citizens. They may find themselves inadmissible to the United states if they associate in any way with a group issuing a statement that could be construed as a "public endorsement of acts of terrorist activity [that] the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities" (Sec. 411). A long-term resident professor leaving the country for a vacation could be denied reentry based on his association with a "political, social, or other similar group" that made a statement deemed subversive under the above standards (Sec. 411). Attorney General Ashcroft's recent admonition that anyone who criticizes the administration is giving aid and comfort to the enemy does not bode well for critical political speech. To paraphrase Ben Franklin's oft-quoted statement, unless we are as jealous of our liberties as we are of our safety, we may wind up with neither.
Be careful what you put in the Google Search. The Government may now spy on web surfing of innocent Americans, including terms entered into search engines, by merely telling a judge anywhere in the U.S. that the spying could lead to information that is "relevant" to an ongoing investigation (Electronic Frontier Foundation, 2001).
Under the USAPA, the investigating agency could intercept all communications to and from the university's computer lab where, it is to be hoped, "inquiring minds" are at work--and perhaps at risk. The foreign student communicating electronically with friends and family in a Muslim country, the graduate student doing research on Al Qaeda, the political scientist corresponding with a Sinn Fein member, the organizer of a campus Amnesty International e-mail campaign--any or all of these could be construed by law enforcement or a zealous Internet service provider as participants in terrorist activity and could find themselves the targets of intrusive surveillance. Here again, the person whose lines are tapped might not even be the primary target of the investigation. "If...your colleague is a target of a Foreign Intelligence Surveillance Act investigation, the government could tap all your communications on a shared phone, work computer or public library terminal" (Rosen, 2001).
Some provisions of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism act seem necessary and judicious. The act as a whole, however, seems based on the premise that safety and freedom are incompatible, and the efficacy of some of the Act's sweeping surveillance provisions is questionable. They may well dilute rather than focus and strengthen our resources to prevent terrorism. This Act was not carefully crafted, debated, and tailored to remedy actual problems with existing legislation. Rather, it was a package that Attorney General Ashcroft and the administration took off the shelves and eventually rammed through both the Senate and the House--essentially without debate, public hearings, or interagency input. Important questions were not debated. How could law enforcement and intelligence services have used their existing broad powers more effectively to combat and prevent terrorism? How did the September 11 attacks evade our intelligence services? Should there be any independent investigation and should any internal structural changes be made in our law enforcement and intelligence agencies, including the CIA? Is it fair and wise to make our Constitutionally guaranteed freedoms the whipping boy? Attorney General Ashcroft's statement that "...foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution" (Ashcroft, 2001), a circular argument if there ever was one, harks back to the bad old days of McCarthyism, COINTELPRO, COMINFIL, the White House Plumbers, and other insidious operations excoriated by the Church Committee. It regresses to the days when the Constitution did not apply to peaceniks, freedom riders, and Martin Luther King. President Bush said of the atrocities of September 11, "Freedom itself is under attack." He might have added, "...from without--and from within."
References
American Civil Liberties Union (2001). How the USA-PATRIOT act allows for detention and deportation of people engaging in innocent associational activity. Available at http://www.aclu.org/congress/l102301h.html
Ashcroft, J. (2001). Attorney General John Ashcroft and INS Commissioner Ziglar Announce INS Restructuring Plan. November 14, 2001, available at http://www.usdoj.gov/ag/speeches2001.html
Astman, K. (2002, January 8). Political dissent can bring federal agents to your door. Christian Science Monitor.
Church Committee. (1976). Intelligence activities and the rights of Americans, book ii a. (a) of final report of the select committee to study governmental operations with respect to intelligence activities of the united states senate, together with additional, supplemental, and separate views. Available at http://www.icdc.com/~paulwolf/cointel.htm
Dallal, A. (2002). September 11 and the academic profession. Academe, 88, i. Available at http://www.aaup.org/publications/Academe/02JF/02jfsco.htm
Donovan, D. (2001, November 27). Let's take away your civil liberties. Chicago Tribune. Available at http://www.globalpolicy.org/wtc/liberties/1127freedom.htm
Dreyfuss, R. (2001). John Ashcroft's midnight raid. Rolling Stone, 882, pp. 47-49, at 49.
Electronic Frontier Foundation. (2001, October 31). EFF Analysis Of The Provisions Of The USA PATRIOT Act That Relate To Online Activities. Available at http://www.eff.org
"FERPA" Family Educational Rights and Privacy Act. 20 U.S.C. § 1232g; 34 CFR Part 99. Available at http://www.ed.gov/offices/OM/fpco/ferpa1.html
FISA (1978). Foreign Intelligence Surveillance Act of 1978, FISA, 50 USC 1801 et seq.
Immigration and Nationality Act, 8 USC section 1101 et seq.
Lehrer, J. (2001). Online News Hour extra with Jim Lehrer: special for students. Available at http://www.pbs.org/newshour/extra/features/july-dec01/immigration.html
Martin, J.L., & Neal, A.D. (eds.) (2001). Defending civilization: How our universities are failing America and what can be done about it. A project of the Defense of Civilization Fund, American Council of Trustees and Alumni. Available at http://www.goacta.org/reports.defciv.pdf
Omnibus Crime Control and Safe Streets Act of 1968. (1968). 18 U.S.C. sec. 2510 et seq.
Poole, P.S. (1998). Inside America's secret court: the foreign intelligence surveillance court. Available at http://fly.hiwaay.net/~pspoole/fiscshort.html
Rosen, J. (2001, October 15). The Terrorism bill does too much and not enough: tapped out. The New Republic, p. 8.
Rothschild, M. (2001, December 21). Tenured Professor Canned; in McCarthyism Watch. Available The Progressive website http://www.theprogressive.org
USAPA (2001). USA-PATRIOT ACT, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56.
Weich, R. (2001). Upsetting checks and balances: congressional hostility to courts in times of crisis. Available at http://www.aclu.org/news/2001/n110101d.html
Notes
"Tattletales for an Open Society" is a website sponsored by The Nation magazine (http://www.thenation.com) on which academics have asked to be included on the ACTA blacklist. They have "outed" themselves as persons looking for peace and justice, echoing the majority of the statements that have earned their peers places on the original ACTA blacklist.[Back]