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. He is married to Brett Kaplan, and lives in Champaign, where he is a member of The Teachers for Peace and Justice.