When New York's World Trade Center and Washington, DC's Pentagon were
attacked by terrorists on September 11, 2001, it shocked an often
complacent nation. In the ensuing urgent drive to "do something" to
protect Americans from further terrorist attacks, the Bush Administration
and the Justice Department were able to gain a wide range of legal powers
they had never had before, with almost no debate in Congress.
(For more information, see
the ACLU's "Safe and Free"
EFF's analysis of the USA Patriot Act, and
the ACLU report
"Bigger Monster, Weaker Chains: the Growth of an American Surveillance
Watch the ACLU's television special, Freedom Files: Beyond the PATRIOT Act.
The U.S. military detained hundreds of captured Afghan and Iraqi soldiers (including U.S. citizens) indefinitely in a legal no-man's land, without either the rights of P.O.W.'s under international law or the rights of criminal suspects under the U.S. Constitution.
The Justice Department called thousands of young Arab-American men in for "questioning", on no basis except the fact that they were young Arab-American men.
The Justice Department now claims the power to confiscate public-access
checkout records in libraries, and purchase records in bookstores,
to find out what specific people had been reading, and made it a crime
for librarians and bookstore employees either to refuse such confiscation
or to even inform their customers that their reading lists might be subject
to scrutiny by the Federal government.
(Imagine, for example, that you're running for Congress and have publicly opposed the President's position on a number of issues. The Federal government can now look up what books you've been buying or checking out, in hopes of finding something embarrassing that will damage your run for office.)
Personal data collected from students, currently protected by FERPA, is now much more easily available to law enforcement authorities; see a study conducted by the Association for Computing Machinery's U.S. Public Policy group.
The Fourth Amendment's protection against unreasonable search and seizure has been weakened: law enforcement agencies can now search your home, car, etc. without prior notice. (While they are still supposed to have a warrant in most cases, you no longer have the opportunity to confirm that they have a valid warrant, to check that they're only searching the places that they're authorized to search, or even that they're at the right address, before they search your property.)
The Justice Department and CIA can now demand individual credit reports and information on private financial transactions with no judicial review and no notice to the person being investigated, based on the unsupported claim that the information is "relevant to a violation of [any] law or regulation."
The right of free association has been curtailed, at least for non-US
citizens: as an ACLU
white paper puts it,
"the Secretary of State could designate any group that has ever engaged
in violent activity a "terrorist organization" - whether it be Operation
Rescue, Greenpeace, or People for the Ethical Treatment of Animals. The
designation would render the group's non-citizen members inadmissible to
the United States, and would make payment of membership dues a deportable
offense. Under the bill, people can be deported regardless of whether they
knew of the designation and regardless of whether their assistance had
anything to do with the group's alleged terrorist activity.
"The USA PATRIOT Act also allows for detention and deportation of individuals who provide lawful assistance to groups that are not designated as terrorist organizations. It then requires the immigrant to prove a negative: that he did not know, and should not have known, that his assistance would further terrorist activity."
The USA PATRIOT Act also prevents immigration by non-citizens who have ever advocated anything that "the Secretary of State determines undermines our anti-terrorism efforts." This significantly weakens the previous standard that such advocacy had to represent "incitement to imminent lawless action." (This Web page probably makes me an advocate of undermining anti-terrorism efforts; fortunately, I'm a U.S. Citizen, so they can't deport me... yet....)
Furthermore, if an organization that you gave money to ten or twenty years ago is declared to be a "terrorist organization" today, you become guilty by association after the fact. (This happened in at least one case described in the TV special, Freedom Files: Beyond the PATRIOT Act.)
Non-citizens whose home countries refuse to accept them back
can be detained indefinitely if the Attorney General has "reasonable
grounds to believe" involvement in any activity that threatens national
security or the safety of the community (not necessarily terrorism).
No court hearing is required, and no evidence need ever be presented,
for the non-citizen to spend the rest of his/her life in detention.
Some non-citizens have already spent years in such detention, but the
government's ability to detain was further broadened by the USA PATRIOT
act. In the face of numerous Freedom of Information Act requests to
find out who has been thus detained, whether they've been charged with
crimes, and whether they have access to legal counsel, the Bush
Administration has consistently refused to release any information.
As a result, there is no way to confirm
that the people thus detained are in fact non-citizens, that their
home countries do in fact refuse to accept them back, or that there is in
fact any reason at all to suspect them of dangerous activity.
In August, 2002, a Federal appeals court in Detroit declared unconstitutional the Bush Administration's policy of routinely holding deportation hearings in secret, excluding the press, public, and even family members. The government can still (as it always could) ask an immigration judge to close specific hearings on a case-by-case basis. However, in November, a Federal appeals court in Philadelphia upheld the practice of routinely (without a specific court decision) excluding the press from immigration hearings.
For the latest news on detentions and secret arrests, see ACLU:Safe and Free:Detention.
In early 2002, the Bush administration announced the TIPS program, which would effectively deputize millions of civilians --- delivery truck drivers, utility and cable-TV company employees, postal employees, mass-transit employees, etc. --- to report "suspicious activity" in and around homes they visited in the course of their work. In other words, people with no training in civil rights or criminal investigation, not to mention search warrants, were encouraged to "turn in" their neighbors and relatives, making an end run around the Constitution's limits on search and seizure by law-enforcement officials. In response to public outcry, the program was scaled down to not specifically recruit postal and utility workers (although they're still welcome to volunteer). Congress later banned the program.
In Fall, 2002, Admiral John Poindexter (remember him from the Iran-Contra hearings?) proposed a "Total Information Awareness" system that would make it easy to combine information in a wide variety of governmental and commercial databases in the search for potential terrorists. Now that the system has been authorized, as part of the law creating the Department of Homeland Security, the Federal government can combine information in your census form, your tax return, your E-Z-Pass toll records, your favorite grocery store's "savings club" records, your car insurance records, your doctor's medical records, your frequent-flyer records, your purchases at a bookstore and check-outs from a library (see above), your credit card records, etc. to build a case that you're a potential terrorist. Of course, since the database has to be kept secret, many of these records may be incorrect, and you'll have no way of finding out and correcting them. The law has a safeguard built in: one employee of the Department of Homeland Security is charged with making sure that the system isn't used to unreasonably violate anybody's privacy.
On Jan. 23, 2003, the U.S. Public Policy Committee of the Association for Computing Machinery (the leading professional organization for computer scientists) sent a letter to Congress expressing its concern that the TIA program would not serve to prevent terrorism, but would instead itself become a juicy target for terrorism, espionage, blackmail, and identity theft; that it would harm the economic growth of the U.S. information technology industry; and that it would result in millions of innocent, law-abiding citizens being incorrectly labelled as terrorists every year.
According to a journal article, both houses of Congress have agreed to prohibit the Pentagon from actually spending any money on the TIA program until these questions are resolved.
In 2003, we learned of the development of a similar program called MATRIX. Its intent is to search through government, corporate, and other databases for "patterns" and "anomalies" that suggest that someone might be a terrorist. It gets around the objections of Congress by being run by the states; each state has the option of participating in MATRIX or not, but it's still largely funded by the Federal government. However, it's operated by a private, for-profit company, whose founder was forced to resign when his cocaine-smuggling past hit the papers.
The Federal government has long had a way to conduct surveillance on suspected foreign spies without a search warrant, using the Foreign Intelligence Surveillance Act (FISA), which specifies that if the government is investigating a foreign agent primarily for national-security reasons, it can get its surveillance authorization through a special, secret FISA court rather than a regular criminal court. The FISA court hears only from the government, not from the person to be spied upon (who presumably doesn't know the proceeding is taking place), nor from any public advocate; it is thus inherently a one-sided proceeding. The FISA court is charged only with making sure all the blanks on the form are filled out and the request is "not clearly erroneous", but not to "second-guess" the government, so in its twenty-odd years, the FISA court has apparently only rejected one request. (I say "apparently" because its records are not public.)
The USA Patriot Act expands the criteria: FISA can now be used if national security is "a significant purpose", not the primary purpose, of the investigation. So an ordinary criminal suspect can be bugged under the FISA standards, rather than the stricter standards of criminal court, if the Attorney General says the person has some significant connection with a foreign power. Furthermore, the USA Patriot Act allows information gathered under FISA standards to be shared with ordinary domestic law-enforcement personnel; it seems likely that law-enforcement personnel who can't get traditional search warrants or wiretap authorizations will simply ask their FISA colleagues to collect the information for them, thus circumventing the legal standards in place for search warrants.
The rules for wiretaps have been expanded: once the FBI or CIA have obtained a wiretap order (through a regular court or FISA) for a particular person, they can "rove" to any phone or computer used by that person, and they can keep wiretapping after the connection is closed. For example (as I understand it), if a telemarketing company calls a suspected terrorist to sell him long-distance service, then calls you ten minutes later, the FBI may be listening to you.
Jan. 28, 2003: President Bush, in his State of the Union address, announced that he will integrate Federal intelligence-gathering into a single umbrella agency, the Terrorist Threat Integration Center, headed by the CIA. This raises concerns for civil libertarians: the CIA, FBI, and Defense Department each investigated and harassed thousands of US citizens -- mostly civil-rights and anti-war activists, including Dr. Martin Luther King -- in the 1960's, and in response Congress put barriers between them and limited the techniques they're allowed to use. The Bush administration evidently feels that these barriers and limitations will impede the investigation of suspected terrorists, and that they need to be eliminated; the ACLU and similar groups feel that once these barriers and limitations are gone, nothing will prevent the use of Federal enforcement powers to investigate and harass ordinary non-violent political dissidents.
Feb. 7, 2003: The Justice Department has drafted a sequel to the USA Patriot Act, the "Domestic Security Enhancement Act of 2003", or colloquially "Patriot Act II". This bill will further expand government surveillance capabilities (even for investigations having nothing to do with terrorism), further reduce the scope of the Freedom of Information Act, further reduce the ability and authority of judges to review and approve actions of Federal security personnel, and make it easier to arrest, imprison, and/or deport legal immigrants for any reason whatsoever.
The draft is dated Jan. 9, 2003, although as of the end of January the Justice Department was still denying rumors that a "Patriot Act II" existed at all. The full text of this preliminary draft is available at The Center for Public Integrity. You can also read the ACLU's analysis of the bill.
Official representatives of the Justice Department have repeatedly assured Congress and the news media that their new powers "don't apply to U.S. citizens," "don't change the standard of evidence," "cannot be used without convincing a judge," "are of no concern except to terrorists," or "cannot be used for broad `fishing expeditions'." These statements are in many cases flatly incorrect, and might be called "lies": many of the new powers in USAPA and the proposed Patriot II do apply to U.S. citizens, do change the standard of evidence, require convincing a judge only of the correctness of the application (not that any actual wrongdoing is suspected), do apply to non-terrorist acts such as peaceful political protest, and can be used for broad "fishing expeditions" with no specific suspect. See the ACLU report, "Seeking Truth from Justice".
July 1, 2003: The U.S. Defense department is developing a surveillance system to track, record, and analyze the movement of every vehicle in a city, e.g. to support troops in urban warfare. The system is to be tested on the military base at Fort Belvoir, Virginia, and then in a foreign city such as Kabul or Baghdad. DARPA spokespeople says the system couldn't easily be used for domestic law enforcement; privacy advocates disagree. See news story.