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Action Alert 

Attack on the Bill of Rights

19 October 2001

The two houses of Congress are now negotiating the details of an anti-terrorism bill that would severely compromise the Bill of Rights, especially the first amendment rights of free speech, petition, and public assembly, and the forth amendment right against unreasonable searches and seizures.

The bills are known in the Senate as the Uniting and Strengthening America Act (USA Act) and in the House as the PATRIOT Act. A more accurate title would be the "J. Edgar Hoover Memorial Trash the Bill of Rights And Silence The Opposition Act." This title is apt because the legislation harks back to the political repression of past eras rather than to the present situation of high-tech global terrorism and digital internet communications.

The bills are based on a draft submitted by Attorney-General John Ashcroft within days of the September 11th disaster. The Bush Administration wanted ­- and had in preparation -- the legal means to intimidate its political opponents. Opportunistically, they’ve used the September 11th tragedy to ram their bill through Congress. An unprecedented coalition of Republican libertarians and Democratic liberals initially joined forces to fight the Ashcroft bill. As Brad Johnson of the conservative Free Congress Foundation told the Milwaukee Journal Sentinel, "We know that we have to be happy with whatever rules we put in place for when Ted Kennedy is the attorney-general." Fair enough. The genius of the Bill of Rights is that it compels political factions to agree: "I won’t put you in jail for your political ideas when I’m in power if you won’t put me in jail for my political ideas when you’re in power." The Bush Administration wants to break that historic consensus.

Alas, this left-right coalition buckled. Few politicians have the guts to stand up for principle in an emotionally frightening war-time situation. Vermont’s Senator Patrick Leahy, chairman of the Senate Judiciary Committee and a critic of the Senate bill’s questionable provisions, joined 95 other Senators in supporting the bill, leaving Wisconsin Democrat Russ Feingold to stand alone in opposition.

Leahy had hoped to improve the bill when it reached the House/Senate conference committee. Initially there was hope of this possibility. On October 3rd, Republicans and Democrats on the House Judiciary Committee had unanimously approved a bill that gutted the provisions in Ashcroft’s draft that undermined civil liberties. But House GOP leaders ignored their vote and imposed a bill more to Ashcroft’s liking and akin to the Senate version. This passed the House 337 to 79 with three Republicans and Independent Bernie Sanders joining 75 Democrats in opposition. The success of the GOP maneuver in the House leaves little room for Leahy to influence the conference committee.

The twin bills tackle two subjects. The important area dealing with real issues of safety and security demand creative thinking and careful scrutiny by law enforcement and public health officials, constitutional scholars, and experts in high technology. We not only need to know why our intelligence was so bad leading up the attack of 9/11, but how we can best protect ourselves in this new era of global terror. In its haste to do something, Congress gave short-shrift to these issues. Congress also kowtowed to special interests. Provisions to track money- laundering by tightening oversight of banks and other financial institutions were passed by the Senate and the House Judiciary Committee over the opposition of the Bush Administration. Then lobbyists for the banking industry went to work. Important investigatory tools that would have enabled law enforcement agents to track terrorists by their financial dealings were deleted from the House bill.

Among the other flaws of the bill, as detailed by the ACLU , are "Sneak and Peak Searches," which allow the government to obtain secret warrants to enter homes, offices and places of business and download computer files without first informing the subjects of the search, and "Forum Shopping," which allow police to obtain a search warrant from any jurisdiction in the country regardless of where the search is to take place. If a judge in Vermont won’t provide a warrant to search a home in Vermont, the police can go to Texas or anywhere else to obtain the warrant.

The most dangerous part of the bill is Section 803 of the Senate Bill which creates a new crime, that of "domestic terrorism." Domestic terrorism is defined vaguely as to include the intention to "intimidate or coerce a civilian population" and to "influence the policy of a government by intimidation or coercion." Any political demonstration can be deemed coercive and intimidating, as can speech or writing. A demonstrator (or an undercover police agent) who throws a rock or damages property (already illegal under existing law) could provide the government with the pretext to charge demonstrators with an act of terrorism. Moreover, any person who provides assistance to the demonstrators would also be liable for prosecution as a terrorist. The provisions regarding "domestic terrorism" are not meant to protect the country from real terrorists. They are, instead, an intimidating and coercive threat to free speech and public assembly.

There is no doubt that we need to improve our law enforcement procedures to guard against terrorism and to prosecute those who attempt to carry out terrorist acts. But there’s a difference between giving up conveniences and privileges for the sake of public safety and giving up rights and freedoms to impose conformity and create an illusion of popular support for political programs. The bills in Congress were too hastily written to deal with the essential issues or safety and security. As written, they are repressive and politically motivated.

"There is no doubt that if we lived in a police state, it would be easier to catch terrorists...," Feingold said in a speech to Congress. "But that wouldn't be a country in which we would want to live.... That country wouldn't be America." One of the goals of the 9/11 terrorists was to undermine our freedoms by fomenting political hysteria. With the so-called anti-terrorist bill now being negotiated in Congress, the terrorists are succeeding in that goal.

Marty Jezer.
Copyright © 2001 by Marty Jezer

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