Ashcroftian Propaganda

Warning: Long post.

From today's Philadelphia Inquirer: "'It is clear that our attorney general needs to brush up on his understanding of and appreciation for the Constitution and Bill of Rights,' said Larry Frankel, legislative director of the American Civil Liberties Union of Pennsylvania. 'Rather than lecturing a select audience about his dubious achievements, Attorney General Ashcroft should spend a few hours at the Constitution Center educating himself about his obligation to protect our most cherished freedoms.'"

Nice quote. I couldn't have said it better.

Ashcroft has kicked off his "Victory" tour with a new Department of Justice website, Preserving Life & Liberty. (Link via TalkLeft.) The basic idea is that the PATRIOT Act is no big deal and it does important things; it authorizes the investigation of real terrorists and protects innocent Americans; it's very popular and everyone voted for it. Nothing to see here. Move along.

It struck me that the "Life & Liberty" tag is a direct response to the ACLU's "Safe and Free" campaign. One page on the site specifically attacks the ACLU for promoting three "myths" about PATRIOT. Let's analyze this a little more closely, shall we?

"Myth: The ACLU claims that the Patriot Act 'expands terrorism laws to include "domestic terrorism" which could subject political organizations to surveillance, wiretapping, harassment, and criminal action for political advocacy.' They also claim that it includes a 'provision that might allow the actions of peaceful groups that dissent from government policy, such as Greenpeace, to be treated as "domestic terrorism."' (ACLU, February 11, 2003; ACLU fundraising letter, cited by Stuart Taylor in “UnPATRIOTic,” National Journal, August 4, 2003)

Reality: The Patriot Act limits domestic terrorism to conduct that breaks criminal laws, endangering human life. 'Peaceful groups that dissent from government policy' without breaking laws cannot be targeted. Peaceful political discourse and dissent is one of America’s most cherished freedoms, and is not subject to investigation as domestic terrorism. Under the Patriot Act, the definition of 'domestic terrorism' is limited to conduct that (1) violates federal or state criminal law and (2) is dangerous to human life. Therefore, peaceful political organizations engaging in political advocacy will obviously not come under this definition. (Patriot Act, Section 802)."

Look closely at the definition of domestic terrorism again: Conduct "that (1) violates federal or state criminal law and (2) is dangerous to human life." Note that the definition does not require violent intent. Neither does it require that anyone actually be injured, or even that anyone intended the conduct that created the dangerous situation.

Protest groups like National Right to Life, Greenpeace, ACT-UP - you name your favorite group - engage in civil disobedience all the time. 'Civil disobedience' is committing a nonviolent crime - usually, trespass - to demonstrate one's willingness to be jailed as a protest against an unjust law or policy. The civil rights movement was founded on a bedrock of civil disobedience. Such protest is "peaceful", even though it is not lawful. Nevertheless, sometimes people get hurt during demonstrations. A crowd that is passionate about an issue can get out of hand. Or individuals who are unstable might commit acts of violence, even though they have no links to the organizers of the protest. Or an accident occurs. Or the police get out of hand and hurt people without provocation, which is what happened most recently in Philadelphia and other cities around the country during the anti-war protests.

So, almost by definition, civil disobedience is conduct that violates federal or state criminal law and is dangerous to human life. So, next time the NAACP conducts a sit-in that blocks a city street, the authorities can claim that "criminal conduct" created a risk that "is dangerous to human life" because it is possible that an emergency vehicle could not get through. Or someone might get hit by a car that didn't stop for the protesters. As a result, the NAACP can be labeled a "terrorist organization", its assets seized, and anyone who speaks on its behalf, works for them, or sends them a contribution can be charged with "supporting terrorism." Again, substitute an ideological organization that you are sympathetic to, if you don't support the NAACP.

"Myth: The ACLU has claimed that 'Many [people] are unaware that their library habits could become the target of government surveillance. In a free society, such monitoring is odious and unnecessary. . . The secrecy that surrounds section 215 leads us to a society where the ‘thought police’ can target us for what we choose to read or what Websites we visit.' (ACLU, July 22, 2003)

Reality: The Patriot Act specifically protects Americans’ First Amendment rights, and terrorism investigators have no interest in the library habits of ordinary Americans. Historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. If terrorists or spies use libraries, we should not allow them to become safe havens for their terrorist or clandestine activities. The Patriot Act ensures that business records — whether from a library or any other business — can be obtained in national security investigations with the permission of a federal judge."

Obviously, business records can be vitally important in an investigation. The objection to Section 215 of PATRIOT is not that the records can be seized, but how they can be seized. And let's be clear, we're not just talking about libraries. Section 215 permits the government to seize your credit card records, your health records (HIIPPA notwithstanding), your ISP records, your insurance records, your school records, your employer's records, your travel records, your bank records, your charitable contribution records, your phone records, and anything else they want on you. Also, Section 215 orders can be incredibly broad fishing expeditions. Nothing prevents the government from getting an order that would require a company - say, Yahoo! or Visa - from turning over all of its records on all of its customers. Worst of all, Section 215 orders are accompanied by a permanent gag order. The company receiving the order can never, ever tell you - or anyone else - that it has received the order. And they have no legal right to resist complying with the order. This makes Section 215 orders totally unlike ordinary grand jury subpoenas, which can both be challenged and eventually are made public.

Continuing the response:

"In national security cases ... the government can now ask a federal court (the Foreign Intelligence Surveillance Court), if needed to aid an investigation, to order production of the same type of records available through grand jury subpoenas. This federal court, however, can issue these orders only after the government demonstrates the records concerned are sought for an authorized investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a U.S. person is not conducted solely on the basis of activities protected by the First Amendment." (Emphasis added.)

That last sentence is totally misleading. First, it says that if the target of an investigation is not a U.S. person, then the government may apply for a Section 215 order even if the application is based solely on activities protected by the First Amendment. However, the order gives the government access to all records, even those that include information about U.S. persons. Say the government goes to an ISP to get all the e-mails and other records stored there on a non-U.S. citizen that it is targeting because that person has spoken out against a U.S. ally's government. The Section 215 order will get all the e-mails to and from that person, including those from U.S. citizens who were also just exercising their rights of free speech and association. Obviously, the government can game this rule if it wants to find something out about you. It can target all the non-U.S. citizens in an organization - by getting a blanket Section 215 order covering all such people, whether they can name them or not - and so get all the information it wants on you second-hand.

Second, the standard "conducted solely on the basis of activities protected by the First Amendment" is extremely low. All that would require is that the government articulate some reason - such as "Greenpeace is a terrorist organization" - and voila, the Section 215 order is not being requested "solely" because of free speech and free association activities.

Finally, what does "demonstrate" to a court mean in this context? Most people assume that a judge might have some ability to say no to the request for the Section 215 order. Nope. Subsections 215(b)(2) and (c)(1) define what happens in these cases: "Each application ... shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section." (Emphasis added.) Get that? It says that the government "shall specify" - not "shall prove." In other words, the government merely needs to assert that the records are sought for an authorized investigation, and when they do, the judge "shall issue" the order. No discretion. No looking behind the request. No proof needed. It's an order issued by a rubber-stamp judge.

"Myth: The ACLU claims that the Patriot Act provision about delayed notification search warrants 'would allow law enforcement agencies to delay giving notice when they conduct a search. . . . This provision would mark a sea change in the way search warrants are executed in the United States.' (ACLU, October 23, 2001)

Reality: Delayed notification search warrants are a long-existing, crime-fighting tool upheld by courts nationwide for decades in organized crime, drug cases and child pornography. The Patriot Act simply codified the authority law enforcement had already had for decades. This tool is a vital aspect of our strategy of prevention – detecting and incapacitating terrorists before they are able to strike.

In some cases if criminals are tipped off too early to an investigation, they might flee, destroy evidence, intimidate or kill witnesses, cut off contact with associates, or take other action to evade arrest. Therefore, federal courts in narrow circumstances long have allowed law enforcement to delay for a limited time when the subject is told that a judicially-approved search warrant has been executed. This tool can be used only with a court order, in extremely narrow circumstances when immediate notification may result in death or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or serious jeopardy to an investigation. The reasonable delay gives law enforcement time to identify the criminal’s associates, eliminate immediate threats to our communities, and coordinate the arrests of multiple individuals without tipping them off beforehand. In all cases, law enforcement must give notice that property has been searched or seized.

The Supreme Court has held the Fourth Amendment does not require law enforcement to give immediate notice of the execution of a search warrant. The Supreme Court emphasized 'that covert entries are constitutional in some circumstances, at least if they are made pursuant to a warrant.' In fact, the Court stated that an argument to the contrary was 'frivolous.' Dalia v. U.S., 441 U.S. 238 (1979)."

This is actually the only area in which the Justice Department has a point. It is of course true that, in terrorism investigations, that if possible we would prefer that the target not know he or she was being investigated, for all the reasons that DOJ gives. And, in this instance, there is real judicial review. Section 213 of PATRIOT requires that the court must find there is evidence that makes it reasonable to believe that it would be harmful to disclose the fact of the search, requires that no tangible item be seized or electronic communication intercepted, and that notice eventually be given within a reasonable time. On balance, this doesn't strike me to be as much of a threat. Of course, it is an empirical question whether the government is abusing this power, by cowing judges into granting such orders when they are not warranted.

Overall, the "myths" that Ashcroft accuses the ACLU of promoting are actually all things that are true and should be opposed. The expansion of the definition of "domestic terrorism" to include peaceful, non-violent protest and the ability to seize records on everyone without any kind of judicial review is a real threat to everyone's fundamental rights under the Constitution. The spin from Ashcroft is both vicious and obvious.

Update: Corrected typo per comments.

Comments

[Teaflax]

Excellent dissection of the disinfo that Ashcroft et cohortes are trying to spread. On minor niggle - because it's a pet peeve, and the third time I see it in less than a day - but it's "voila", it has nothing do with a string instrument.

[Mithras]

T- Thanks. That'll teach me to proofread.

[Kevin]

If angels were in charge, the patriot act would be great. The truth is, the system is run by human beings who have a long track record of abusing their authority. THINK PEOPLE!!!