Internet Articles (2015)
By Jon Christian
the aftermath of the Alfred P. Murrah Building bombing in Oklahoma City
on April 19, 1995 there was a rush by the Clinton Administration and the
Republican-controlled Congress to enact legislation that would expand
the authority of State and federal law enforcement agencies to investigate
and detain suspected terrorists, whether foreign or domestic. Even before
the dust had settled in Oklahoma City and the ruins of the federal building
where 182 American men, women and pre-school children died at the hands
of domestic terrorist Timothy McVeigh, the Anti-Terrorist Act of 1995
was making its way through Congress at warp speed. By the time the American
people discovered that a bill called the Anti-Terrorist Act of 1995 was
making its way through Congress, S.735 had already flown through the U.S.
Senate on a 91-8 vote and was on its way to the House Judiciary Committee
as H.R. 666 (an ominously prophetic bill even though it would eventually
be H.R. 2703 that would be enacted).
Section 101 of Patriot II designates individual terrorists or terrorist cell groups as foreign powers and strips them of any protection under the UNs enemy combatant designation.
Section 102 classifies any information gathering, regardless whether or not those activities are legal or illegal, as clandestine intelligence gathering activities of a foreign power--regardless who is doing the intelligence gathering. If the President wished, news gathering by legitimate media people could be construed as an illegal activity, and the dissemination of the news without the consent of the Department of Defense, Homeland Security, or the Justice Department, a felony.
Section 103 allows the White House and Congress jointly to reactivate the War Powers Act of 1917 as amended in 1933 and apply the punitive elements of that act domestically against the citizens of the United States without Congress declaring that a state of war exists.
Section 106 is the first blatantly open abrogation of the Bill of Rights--in particular the 4th Amendment prohibition against unreasonable search and seizure. It goes without saying that Congress cannot constitutionally abrogate protections provided by the Constitution. A constitutional amendment is required. And, it is a safe bet that if such a resolution was passed by 2/3 of both House and sent to the States for ratification, that any State legislator who voted to steal the protection of the Bill of Rights from their citizens would never get reelected. Section 106, which would not stand a snow balls chance of ever remaining in a closely scrutinized Patriot II bill, will be one of those secret abrogations attached to one of those sacrosanct pork barrel amendment attached to some innocuous bill nobody cares about. Section 106 gives extremely broad authority to star-chamber FISA courts (Foreign Intelligence Surveillance Act) that will convene in secret, in secret locations, to authorize no-knock searches and to grant immunity, after-the-fact, to federal agents that engage in illegal, warrantless searches that produce incriminating evidence against those suspected of terrorism.
Section 109 abrogates the 5th Amendment privilege against self-incrimination. The secret FISA courts will be allowed to issue contempt citations against individuals, groups or corporations that refuse to incriminate themselves or others who stand accused of wrongdoing.
Section 110 rephrases the language of the USA Patriot Act with regard to the sunset clause that rescinds the Police State authority (after five years that was granted to the federal government in the first piece of legislation) by declaring that the first Patriot Act is not sunsetted.
Section 122 reemphasizes that the federal government has the right to engage in any form of surveillance on those suspected of planning to engage in terrorism, whether domestic or foreign, without the need of a court order authorizing the surveillance.
Section 123 reiterates that the government no longer needs warrants to search a home or business, and that their investigations can entail dragnet-style sweeps and that ...the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes. Over and over again in the draft of Patriot II, the Justice Department remarks that the new powers will be used to fight international terrorism, domestic terrorism, and other types of crime. The Justice Department, in tailoring new rights for cops, wanted to make sure that ...other types of crime was emphasized without appearing to emphasis it since the majority of the warrantless searches would be conducted by federal law enforcement officers to find incriminating evidence against other types of criminals--some of whom didnt break the law until what they did was classified as a crime after they did it since the President is now allowed to classify activities as criminal after-the-fact and charge those who committed these new crimes even though their activity was not criminal when they did it.
Section 126 grants the federal government access to all public and private sector information databases on all citizens, regardless of the nature of the databases. The government will be granted the unbridled right to secure every piece of information about you from your bank records to your educational records and your medical history--both physical and mental. There will be no element of your personal life that will be exempt from Big Brothers scrutiny.
Section 128 allows the federal government to place gag orders on both federal and State grand juries, and to take over any State proceeding if the Justice Department feels the federal government has a compelling interest in the grand jury action. This prerogative eliminates one of the last two vestiges of real power possessed by the people--control over the verdicts of grand juries and trial juries. Section 128 also prevents individuals or organizations from attempting to squash federal subpoenas.
Section 129 eliminates all remaining whistleblower protection for federal employees. Congress attempted to enact this legislation a year ago, but the measure was defeated. Uncle Sam definitely does not want the American people to know what their government officials and bureaucrats are up to.
Section 201 of Patriot II allows the Attorney General to deny just about every request for information under the Freedom of Information Act.
Section 202 allows the government to conceal from the public worse case scenario reports as mandated by the Clean Air Act on the grounds that publicizing this information is tantamount to providing terrorist organizations with a road map to easy acts of terrorism. Since revealing this type of information could provide terrorist cell groups with opportunities to infect hundreds if not thousands of people by capitalizing on hazardous situations, in this instance the Justice Departments assessment is correct even though it will allow corporations to keep their activities with toxic, biological, chemical or radiological materials concealed from public scrutiny.
Section 205 allows government officials to keep their agencys financial dealings secret. Anyone attempting to pry into how specific government agencies are spending the public money may find themselves open to criminal scrutiny themselves. Left-wing organizations are now arguing that Section 205 allows top Bush officials (like Dick Cheney) to keep their personal financial dealings (like his problems with Haliburton Corporation) secret. They further argue that advocacy groups which attempt to investigate any personal wrongdoing on the part of these officials can be considered a terrorist. In point of fact, Section 205 allows certain agencies--like the Department of Homeland Security, the Department of Defense, the Justice Department and the CIA, to place a cloak of secrecy around their appropriations so that their programs can remain shielded from public scrutiny. That, of course, negates the principles of open government and violates the tone of the Constitution.
Section 301 to 306 (particularly 303) authorizes the creation of a DNA database on suspected terrorists and Other unlawful activities. While the obvious intent of Section 303 is to collect DNA from suspected terrorists, the perimeters are expansively defined to include anyone who associates with a suspected terrorist or terrorist group, or non-citizens who are associated with groups suspected of supporting, either financially or philosophically, organizations linked to terrorism. The other unlawful activities clearly suggests that anyone arrested for any crime, misdemeanor or felony, will have a DNA sample taken. Section 301 to 306 authorizes the States, counties and municipal governments to collect DNA samples from suspects arrested in their jurisdictions and at their discretion. So, dont be surprised if, in the event you are arrested for drinking while intoxicated, that your DNA is extracted from your urine sample.
Section 311 requires local police agencies to share information with the federal government. While not specified, it is likely what Section 311 is really attempting to target is local and State firearms registrations. Section 311 also federalizes local police agencies in times of emergency, placing them under the jurisdiction of the Department of Homeland Security, and under the immediate supervision of FEMA.
Section 312 will terminate all State law enforcement consent decrees that existed prior to September 11, 2001. Exempt are consent decrees dealing with racial or ethnic profiling or other civil rights violations that limit or prevent law enforcement agencies from gathering information about any individual or organization. The Ashcroft Justice Department argued that these consent decrees (most of which resulted from police abuse cases) could impede terrorist investigations. Section 312 would place severe restrictions on future court injunctions and make it much harder for ethnic groups to argue they are being profiled.
Section 313 provides liability from lawsuits for businesses--in particular large, transnational corporations or medical facilities--that agree to spy on their customers or patients for the federal government. Section 313 provides cover for companies who sign privacy agreements with their customers or patients in order to secure confidential information from them, and then pass that information on to the Department of Homeland Security or any other government agency that feels it has a need to know.
Section 321 is a strange one. It authorizes friendly foreign governments to spy on American citizens (I assume that authority comes when the American citizens are in that country) It further authorizes those governments to share the information they uncover with other foreign governments. And, it authorizes the United States to assist foreign governments in tracking aliens on American soil.
Section 322 eliminates congressional involvement in the extradition process and gives Homeland Security officials autonomy to extradite American citizens from--and to--any country they wish. This is an important distinction. In the past, when the United States attempted to extradite a citizen who had committed a crime, the US had to have an extradition treaty with that nation--and, the person extradited was sent to the United States. Section 322 allows the Homeland Security Department (or the Justice Department) to request extradition from countries with whom we have no extradition treaties. Further, it allows the government to have the detainee sent to still another nation for detention or trial. This will keep a suspected terrorist out of the reach of Americas liberal judges who might be inclined to either drop the charges against them, or allow the accused to get out of jail on bail. Section 322 also allows the United States to request extradition of criminals for 21st century crimes such as money laundering, cyber crimes and sex crimes against children--things that were not classified as crimes in the 18th and 19th centuries when many of our extradition treaties were signed. Because those crimes were not included in the original extradition treaties, the Justice Department could not seek the extradition of criminals who had committees those offenses and were now residing in those nations.
Section 402 is one of the most dangerous addendums to the Patriot Act. It could be called the no intent section of Patriot II. A US Court of Appeals recently argued that 18 USC 2339B concerning the training of terrorists as designated under section 219 of the Immigration and Nationality Act was unconstitutionally vague. The court held that those accused of recruiting and training terrorists could not be convicted under 18 USC 2339 because the law did not clearly define what terrorist training consisted of. Section 402 redefines 18 USC 2339B so that anyone who provides instruction or training of any type that is designed to enhance a particular skill to an individual or group that is used to perform a terrorist act against he United States, even if the instructor had no intent to provide such aid can be charged with supporting terrorism.
Section 404 provides an additional penalty of 5-years in prison (on top of whatever other sentence is meted to a person accused of terrorism) if they attempt to conceal the planning or execution of a terrorist act (or any other crime) with the use of encryption technology. Anyone advocating the overthrow of the government of the United States can, under the USA Patriot Act, be charged with planning to overthrow the US government. Thus, anyone making such claims over the Internet who also use encryption programs to prevent Big Brother from reading their mail, may find themselves charged with a crime--and simply because they are utilizing an encryption devise, find themselves in a prison cell for 5 years. The Smith Act of 1940 made it a crime to advocate the overthrow of the government of the United States even if no actual plans or action was ever initiated. The law was challenged before the US Supreme Court in Dennis v United States (341 USC 494) in 1951. The high court ruled that actual acts of violence were not needed to prove that groups which threatened the security of the United States had a propensity to commit violence against the American people. Based on The Smith Act of 1940 combined with Patriot II, most of the antigovernment militia groups in the United States who use encryption programs to protect the privacy of the data on their personal computers can be charged with a felony under Section 404. Once they are adjudged guilty of violating Section 404 of the Domestic Security Enhancement Act of 2003--even if they are not sentenced to prison--they will no longer be able to legally own firearms.
Section 405 provides law enforcement with the ability to hold considerably more people in jail without bail while they await trial [18 USC 3142 (e)] than ever before. Currently, those charged with first degree or capital murder cannot get bail. Neither can those charged with drug offenses that are punishable by prison terms of 10 years or more. But, other than those rare instances, most people accused of just about any crime can request bail, and if they can raise the bail demanded by the court, can secure their freedom while awaiting trial. Section 405 denies bail to those charged with terrorism or with aiding terrorists since the flight risk is extreme. According to the Justice Department in arguing for the inclusion of Section 405, ...This presumption is warranted because of the unparalleled magnitude of the danger to the United States and its people posed by acts of terrorism, and because terrorism is typically engaged in by groups--many with international connections--that are often in a position to help their members flee or go into hiding.
Section 408 provides mandatory lifetime parole supervision for convicted terrorists who are released from prison. Anyone convicted of terrorism who somehow manages to get paroled before their sentences are fulfilled, or even those who complete every day of their sentence will have a parole officer watching every move he or she makes for the rest of their natural lives. The USA Patriot Act notes that terrorists will pose a danger to America even after they have completed their sentences since the ideology that caused them to become terrorists will not have diminished during their imprisonment. In fact, it will become more persistent as the prisoner contemplates revenge for the years he or she was incarcerated. There is a downside to Section 408 as well. Those classified as terrorists by the Patriot Act or Patriot II if it is enacted who may never have seriously contemplated overthrowing the lawful government of the United States but are snared in one or more of the pitfalls of Patriot II and are convicted, face lifetime scrutiny from federal parole officers. Section 408 provides for the re-imprisonment of the parolee for not more than five years based on the whim of the parole officer. That means the federal government pretty much owns the parolee once he is released from prison.
Section 410 provides no statute of limitation for terrorism. Currently, in US jurisprudence, only murder has no statute of limitation. Under Section 409, committing a terrorist act--even if no deaths resulted--can be prosecuted for life. Nonviolent forms of terrorism, such as cyber terrorism are specified. This also includes individuals or groups who support the terrorist apparatus or who aid terrorism in any way. Those who aid the terrorist will not be able to escape prosecution simply because they managed to avoid being identified until long after the crime was committed, or they gained immunity by being protected by a government that refuses to extradite the terrorist for whatever reason.
Section 423 allows the Internal Revenue Service to suspend the tax exempt status of any organization, domestic or foreign within the United States that has been designated as a terrorist front--even without specific evidence to substantiate the allegation. Further, even without hard evidence that will stand up before a jury, the Homeland Security Department can freeze the assets of any group or organization that has been classified as a terrorist organization, or has financially supported a terrorist organization. Using RICO, the government can seize the personal assets of the officers or directors of those organizations before they are even arrested. Once again, the downside of Section 423 is that it can be applied against most of the patriot groups in the United States if those groups have ever vocally advocated the overthrow of Americas current form of government.
Section 427 works in tandem with Section 423 by allowing for the seizure of all assets of any person planning or perpetuating an act of terrorism against any foreign state or international organization while acting within the jurisdiction of the United States. What makes Section 427 particularly dangerous is the language. Section 427 is designed to protect international organizations in the United States. Three that come to mind are the United Nations, the World Bank and the World Trade Organization. By a strict interpretation of law, anyone who violently protests the WTO, the UN or the World Bank is guilty of terrorism. Once again, the assets of those found guilty of provoking terrorism against the UN, the World Bank or the WTO can be seized by the government. While this section, on the surface, sounds like it is merely trying to protect international organizations from terrorism, in reality, it is attempting to protect the supporters of world government from violent protest.
Section 501 gives the US government the right, by implication, to infer that a citizen has decided to surrender his or her citizenship voluntarily if that citizen [a] obtains nationality in a foreign state, [b] takes an oath of allegiance to a foreign state, [c] serves in the armed forces of any nation that is engaged in hostilities against the United States. Section 501 would amend 8 USC 1481 to make it clear that American citizens will relinquish their citizenship if he or she serves in a hostile foreign army or hostile terrorist organization. The provision makes it explicit that the intent to relinquish nationality need not be manifest in words but can be inferred by conduct. Prior to the USA Patriot Act, a naturally-born citizen could not be deprived of his citizenship unless he formerly renounced it. This is probably the scariest aspect of the Domestic Security Enhancement Act of 2003 because Section 427 possessed the ability to make American citizens men without countries. Other than the loss of life, there is no higher price that can be paid for an act of treason. And prior to Patriot II, it was a penalty to frightening to even contemplate.
Section 503 gives the Attorney General of the United States the authority to deport permanent resident aliens from the United States without a court hearing, and bar an alien from entering the United States based strictly on national security grounds. The Attorney General must have reason to believe that the alien poses a danger to the security of the United States. Currently, expedited deportation applies only to nonpermanent resident aliens or those who have committed aggravated felonies. Until now, aliens--even illegal aliens--may contest their deportations and remain free in the United States while their cases are being settled.
506 gives the Attorney General the prerogative to deport aliens or
expatriated Americans to whatever country he deems most beneficial to
the interests of the United States--or that is most detrimental to the
deportee. In the past, deportees were always sent to the country of their
origin, or to the nation from which they came into the United States.
That being the case, the person deported was generally sent to a nation
that favored their arrival. In the case of a terrorist, the United States
would simply be transporting an enemy to a safe harbor from which that
individual could immediately begin making plans to return to the United
States or to the lands of one of our allies in the industrial world. By
exercising this option, the Attorney General can deport an unwanted alien
or an expatriated America to any country he wants. And, with the imminent
and likely permanent threat of Muslim terrorism to the Christian world,
it is obvious that those deported will be sent to friendly allies who
will have assured the American government that the deportee will no longer
be a threat to the world. Section 506 poses a real danger to expatriated
Americans...particularly under Section 501 where the government will be
allowed to unconstitutionally infer that a natural-born American
has decided to surrender his citizenship. Rather than allowing the expatriated
American to go to a country where he is ideologically linked, the deportee
can, and likely will, be sent to a country philosophically opposed to
the ideological philosophy of the former American.