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20 years

March 5, 2003

By Jon Christian Ryter
Copyright 2003 - All Rights Reserved
To distribute this article, please post this web address or hyperlink

n 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).
     The stealth and speed with which Congress addressed the tragedy in Oklahoma City occurred largely because President Bill Clinton climbed up on his homeland security soap box and demanded that the GOP Congress, in no uncertain terms “...take swift, certain and severe action...” against domestic terrorism. With public opinion fanned to a fever pitch to protect the American people from both foreign and domestic terrorist activity, Congress obliged by attempting to legislatively abolish the Bill of Rights (something Congress has been trying to do, one nibble at a time, since the communist-leaning New Dealers began to create the unconstitutional 4th branch of government--the bureaucracy--in 1933). (NOTE: Congress has no constitutional authority to enact laws that infringe upon or abrogate rights guaranteed to all American citizens under the Bill of Rights. If Congress feels one or more specific right guaranteed to the people by the Constitution are detrimental to the interests of the United States (such as free religious expression or the right of American citizens to own firearms), it has one option available to it, and one option only. With a 2/3 vote of both Houses, it may proffer a resolution to the States with the intent to amend the Constitution to abrogate or limit those specific rights or liberties which it believes are detrimental to the government’s mission to protect the people. It is then up to the States, and the people, to decide if they are willing to surrender those rights or liberties to the bureaucracy of the federal government. But Congress, and the money barons who sit invisibly behind the seats of government learned that the American people will not willingly cede to the central government of the United States any more authority to covertly intrude upon the lives of the American people. The federal government is generally successful in its efforts to infringe upon the civil rights of the American people only when the people are frightened into passivity. When security becomes more important than freedom, people will surrender liberty for safety. Unfortunately, it is not until liberty is lost that people realize they are no longer secure. That is what happened when the Murrah Building was blown up on April 19, 1995 and when the World Trade Center was struck by two hijacked 757 passenger jetliners on September 11, 2001--the American people were frightened into submission and allowed Congress, under the compelling interest clause of the 9th Amendment, to unconstitutionally limit their rights and liberties under the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Amendments, and to further blur the power of the people and the States under the 10th Amendment.)
     In October, 2001, it was President George W. Bush standing on a homeland security soapbox of hot ashes from the World Trade Center--who demanded that Congress move fast to enact legislation to protect the American people from terrorism as he promised a shocked and grieving nation that he would take the war on terrorism to the homelands of the terrorists. More than ever before the American people were frightened into passivity because not since the Civil War had the ugly scars of war slashed the face of America. And, unlike 1995 when America had a president it didn’t trust, America trusted George W. Bush--and America wanted those who took the lives of American citizens on American soil to pay the supreme price for violating the security of the United States. America was willing to surrender an ounce of liberty to achieve a pound of revenge.
     Congress reciprocated by passing the USA Patriot Act which, according to Congressman Ron Paul [R-TX], no member of Congress was allowed to read before it was passed and signed into law on October 26, 2001. (This was the tactic used by Franklin D. Roosevelt on March 9, 1933 when Congress passed the Emergency Banking Relief Act of 1933 that classified the American people as enemies of the federal government of the United States, and gave Roosevelt dictatorial wartime powers over the people of the United States in peacetime.) Most of the New Deal laws were passed without ever being read by anyone in Congress before they were voted on. Roosevelt created the precedent of forcing Congress to enact laws none of the members had ever read. Today it remains a common and very dangerous practice. Most Congressmen and Senators defend the practice by arguing that no one reads the bills that are proffered simply because they are too long and too tedious and it would consume more time than they have to read them. Further, the Congressman or Senator will argue that their legislative aides and chiefs of staff read the bills before the House and Senate and advise them of elements within pending pieces of legislation that might prove troublesome. Actually, what the staffers read are synopses of the legislation. With no one--not even those viewed as the champions of the conservative right--reading the bills they vote on, it is no wonder that the rights of the American people are being eroding, and that the rule of law no longer governs this nation.
     The original USA Patriot Act greatly expanded the right of the federal government to place under electronic surveillance foreign nationals suspected of being involved in terrorist activities, or suspected of supporting those who might be involved in planning terrorist activities in the United States or around the world . Where the Justice Department needed to present some form of circumstantial evidence to suggest wrongdoing existed in order to justify a wiretap or search warrant on American citizens, the USA Patriot Act allows the Justice Department to place foreign nationals under electronic surveillance based on suspicion of wrongdoing without any real evidence to support the notion that wrongdoing is likely. While the USA Patriot Act limits the Bill of Rights in several ways, it did not shatter it as the original version of the Anti-Terrorist Act of 1995 would have had if the American public not learned what was contained in H.R. 666.
     After 45-year old Kuwaiti-born Palestinian University of South Florida professor Sami Al-Arian was arrested on racketeering charges alleging that he raised money that funded the activities of the Islamic Jihad, the Palestinian Islamic Jihad and the Palestinian Liberation Organization terrorists that resulted in the murders of more than 100 people--including two Americans--through 13 suicide bombings in Israel between 1992 and 2002, the question was asked why, after Bill O’Reilly (The O’Reilly Factor) raised the question of Al-Arian’s participation in terrorist organizations, that it took the federal government a year to arrest him on a 50-count indictment.
     The Justice Department replied that until the USA Patriot Act was enacted which allowed “information-sharing” between the CIA (which by law could not be engaged in domestic information-gathering activities) and the FBI, the dossier the spy kids had accumulated on Al-Arian could not legally be shared with the FBI, nor could it be used to build a domestic court case against Al-Arian.
     From the moment the CIA was created from the OSS at the end of World War II there was a fear in the “John Birch” far right and the Marxist far left that if the role of the Central Intelligence Agency was not clearly defined and carved in stone, and the agency’s operating perimeters were not specifically mandated by law, the spooks would ultimately evolve into a secret spy agency of the White House that could be used to investigate and possibly assassinate the President’s political enemies. While the centrists, who were becoming very concerned about the growing influence of Stalinist communism in the United States, poophahed the fears voiced by both the far right and left, it seems the fears of both were justified.
     The “Plumbers,” who “fixed” the leaks in the Nixon White House were primarily CIA assets who knew how to ferret information--and they knew how to keep their mouths closed in the event they were caught. The Nixon assets who broke into the office of Daniel Ellsberg’s psychiatrist (the Defense Department bureaucrat who released 7,000 pages of top secret Pentagon documents on Vietnam to the media) and the Democratic National Committee headquarters at the Watergate Hotel were led by a former CIA agent, G. Gordon Liddy. Liddy was offered several deals to roll-over on Nixon or the Nixon lieutenants he reported to who were close enough to topple the presidency. Unlike several of the “plumbers” who demanded money for their silence, Liddy remained loyal to Nixon and, as a result, felt the full brunt of “Democratic justice.” Even after serving his time, Liddy declined to publish his own memoirs until the statute of limitations had expired and his accomplices could not be charged for their roles in the Watergate break-in. In addition to the CIA’s known role in covert Nixon activities during the Watergate Era, there is still a lingering suspicion on the part of a good many Americans that the CIA was involved in the assassination of John F. Kennedy. Even more Americans feel there is a basis to believe that President Bill Clinton may have used clandestine CIA operatives to silence former Friends of Bill who knew too much about the illegal or unethical Arkansas business dealings engaged in by Bill and Hillary Clinton collectively or Hillary Rodham Clinton separately. Anyway you look at it, the American people are suspicious of any government agency that is allowed to operate in secret without very public civilian oversight.
     And that is one of the things that is now giving Americans misgiving not only about the USA Patriot Act in application, but moreso about its rumored encore--the Domestic Security Enhancement Act of 2003 (USA Patriot II)--secrecy. More and more, the “big brother” aspects of the Patriot Act--protecting us from ourselves--are reminiscent of George Orwell’s prophetic New World Order book, “1984.” Orwell, before he wrote his famous novel that became a hit cult movie starring Edmond O”Brien, Jan Sterling and Michael Rennick, was a dyed-in-the-wool New Worlder. Orwell was an academician who was “on board” with the concept of world government. As he watched the globalist plans evolve during the 1940s and 1950s, Orwell began to see the dark side of the utopian vision, and wrote “1984” as a warning what the world could expect if the globalist dream merchants successfully sold the world’s populations that global government would be a good thing for mankind.
     Frighteningly, the intrusive fiction spawned by Orwell’s fertile mind will very likely become a literal reality if the Ashcroft sequel to the USA Patriot Act is enacted. Actually, the original USA Patriot Act already comes close in legalized intrusiveness. Under the Patriot Act, the FBI now monitors public computers in libraries and other public facilities. Around 9:00 p.m. on February 13, 2003, two Santa Fe police officers entered the St. John’s College student library, handcuffed and arrested former public defender Andrew J. O’Connor while he was visiting a political chat room on the library’s public computer. O’Connor’s arrest was requested by the Secret Service from Albuquerque who were waiting for O’Connor at the local Santa Fe police station. Secret Service agents questioned O’Connor for five hours. The Secret Service, who had been monitoring the public-access computers at all of the area libraries recorded a prior chat room conversation in which O’Connor ostensibly threatened President George W. Bush--or at least said something the Secret Service construed as a threat--since after interrogating O’Connor for five hours, they released him. (This article is not concerned with whether or not O’Connor came under the scrutiny of the Secret Service and the FBI because he made an inappropriate remark about the President of the United States that could be construed as a threat, or even if O’Connor was linked to other “persons of interest” that placed him on the radar screen of federal law enforcement. This discussion is focused exclusively on the increased ease with which the federal government can, since the passage of the USA Patriot Act, intrude on the privacy of American citizens--not whether or not that scrutiny is justified.) That, also, is not to say that heightened scrutiny has not been needed since September 11, 2001--or that terrorist acts might very well have been short-circuited had the CIA been allowed to work openly with the FBI in domestic intelligence prior to the passage of the Patriot Act.
     O’Connor admitted to the Santa Fe New Mexican newspaper that he spoke briefly--face to face--with a woman wearing a “No War With Iraq” button (who was in the library that evening). He told her he felt Bush was out of control. But, he added in his comments to the media, he didn’t recall saying anything that could legally be construed as a threat against Bush. He told the newspaper he is “...allowed to say that [because] there’s this thing called freedom of speech.” Earlier that same day officials at St. John’s College (as well as Santa Fe Community College and the College of Santa Fe) issued a bulletin warning students and faculty members that the FBI had issued an alert that there were “suspicious” people on the campus within the past four weeks. Connor admitted to the Santa Fe New Mexican that, at one time, he was involved with a pro-Palestinian group in Boulder, Colorado. What O’Connor failed to explain to the New Mexican, and what the newspaper apparently failed to ask O’Connor, was why the 40-year old practicing attorney (who logically should have personal computers in his home and in his office) was using a computer in a public library to visit political chat rooms--unless he feared that Big Brother had wiretapped his personal computers, or that he was afraid that the government might seize the hard drives of his computers to get a record of his email traffic and chat room conversations. It was obvious O’Connor wanted to make sure he had complete anonymity when he visited chat rooms or emailed acquaintances or business associates. In defense of O’Connor it should be noted that a growing number of attorneys (particularly those who have successfully subpoenaed the email communications of litigants, or have subpoenaed and retrieved erased data from the hard drives of the litigants’ computers) stopped linking their office computers to the Internet after the passage of Oxley-Manton in 1998 because it allowed surreptitious surveillance of the hard drives of anyone’s computer without any public disclosures.
     Prior to the USA Patriot Act, the FBI could not have easily tapped O’Connor’s chat room conversations (particularly on a public computer) without first convincing a judge (who would have had to have authorized the wiretap) that O’Connor--the target of the wiretap--posed an imminent threat and that the FBI had reason to believe that O’Connor would be using a specific computer at the St. John’s College library. Under the USA Patriot Act, O’Connor’s past association with anyone who was a “person of interest” to the FBI would justify a wiretap.
     The most frightening aspect of Patriot Act II is that it clones the authority found in the Enabling Acts of both the Republic of Germany and the parliamentary democracy of Italy during the Great Depression which spawned the dictatorships of both Adolph Hitler and Benito Mussolini. And, just as the members of Congress voted on the USA Patriot Act without ever having an opportunity to read the bill and debate the unconstitutional partial abrogation of the Bill of Rights contained within it, the Domestic Security Enhancement Act of 2003 legislatively voids the Bill of Rights and creates a utopian Big Brother society in which the government sees its primary role as protecting us from ourselves.
     When the USA Patriot Act was passed on October 26, 2001, New York Times columnist William O. Safire reported the following day that President George W. Bush had seized dictatorial powers. Because the pictures of September 11 were still embedded in America’s mind, and because America was still petrified with fear, Safire’s observation was discounted as the liberal remarks of the nation’s most liberal newspaper. The Bill of Rights had taken its worst beating in the nation’s 227-year history but it would be several months before most Americans realized that the umbrella that shielded their rights could no longer stop the rain. At that time, America would react to the USA Patriot Act but, at that time, it was too late.
     On February 7, 2003 the Center for Public Integrity (an inside-the-beltway government watchdog group) issued a report that it had secured, on January 9, 2003, a draft copy of an encore to the USA Patriot Act that was called the Domestic Security Enhancement Act of 2003. Rumors that there was a Patriot II in the making had been circulating around the Capitol beltway for several months before CPI secured a draft of the bill. The rumors were denied by Bush Administration insiders and by Attorney General John Ashcroft--whose staff actually drafted the legislation. Even after Ashcroft sent copies of the 120 page draft legislation to House Speaker Dennis Hastert and Vice President Dick Cheney (as the president of the US Senate), House Judiciary Committee spokesman Jeff Lungren said that Ashcroft had not chosen “...to [share his] thoughts on [this]. Obviously, we’d be interested, but we haven’t heard anything at this point.” Senior members of the Senate Judiciary Committee minority (the Democrats) admitted they had been hearing for months that a Patriot II was in the making, but they had been told by the Bush people as recently as the third week in February that no such legislation was being planned. Mark Corallo, the Deputy Director of the Justice Department’s Office of Public Affairs said he was unaware of a Patriot II draft. “I’ve heard people talking about revising the Patriot Act,” he admitted. “We are looking to work on things the way we would do with any law. We may work to make modifications to protect Americans.” When Corallo was told that the Center for Public Integrity had a copy of the 120 page draft bill, he seemed puzzled. “This is all news to me,” he flustered. “I’ve never heard of this.”
     Yet, both Cheney and Hastert had. Both of them had copies of the draft. Barbara Comstock, the Department of Justice’s Director of Public Affairs did damage control. “Department staff [members] have not presented any final proposals to either the Attorney General or the White House. It would be premature to speculate on any future decisions, particularly ideas or proposals that are still being discussed at staff levels.”
     While it might be premature to speculate, the reality is that select “friends of George” in the House and Senate are now attempting to enact some of the more damning aspects of Patriot II by concealing them in pork barrel amendments that are never read by anyone on either side of the aisle when they are attached, like bloodsucking leaches, to a variety of innocuous bills that are completely unrelated to national security that will keep those Patriot II civil rights abrogations under the radar screen until they have been enacted. At that time, when they are discovered, there will be cries of alarm from both sides of the aisle--but there will be no one to blame. That puts the American people squarely behind the proverbial 8-ball.

Section 101 of Patriot II designates individual terrorists or terrorist cell groups as foreign powers and strips them of any protection under the UN’s “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 ball’s 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 didn’t 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 Brother’s 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 Department’s 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 agency’s 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, don’t 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 America’s 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 America’s 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.

Section 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.
     While most of those who have scanned the cumbersome text of the USA Patriot Act (something we all wish Congress had done before voting on it) have come away with the view that the original Patriot Act gave President George W. Bush the authority to confiscate the property of anyone in the United States who engages in any acts against the United States in a time of war. Not true. Every president since Woodrow Wilson has possessed this authority under the Trading With the Enemies Act of 1917. In 1933, Franklin D. Roosevelt’s New Deal Congress (which also never read the Emergency Banking Relief Act of 1933) amended the 1917 provisions and classified the citizens of the United States as enemies of its government, granting Roosevelt even broader seizure rights. Today, those unconstitutional seizures which violate the 4th Amendment, are practiced not only by the federal government, but by every State, county and local law enforcement agency that confiscates the automobiles owned by “johns” who proposition prostitutes from their cars, or when they seize the assets of drug dealers at the time of arrest on the grounds that the property and assets were purchased with illicit funds. Under RICO--another blatantly unconstitutional act--the Justice Department is allowed to confiscate every seizable asset of those suspected of “racketeering” including savings and real estate holdings that are unrelated to their “criminal activity.” The government, which merely “freezes” the assets and makes them unavailable to the accused in financing his or her “day in court,” has argued successfully in court that it has not violated the 4th Amendment because ownership of the accused’s assets are not transferred to the government’s pocket until after he or she is convicted. The government merely deprives the accused of the use of those assets.
     In October, 2002, when the rumors that there was a Patriot II in the making first surfaced, the Senate Judiciary Committee (which was still under the control of the Democrats) decided to hold a hearing in the Senate Judiciary Subcommittee on Technology, Terrorism and Government Information to find out. Several Justice Department officials were called to testify. (At that time, Ashcroft’s people, at the direction of the White House, were working closely with Homeland Security chief Tom Ridge and FBI Director Robert Meuller to close the legal loopholes that could be exploited by anyone accused of terrorism.) Before the hearings commenced, Assistant Attorney General Viet Dinh (the principle author of Patriot I) admitted in a media interview that the Justice Department was continuing to evaluate the affect Patriot I was having but would not admit that a sequel was in the making. On October 9 Ashcroft read a prepared statement to the Committee but took no questions. Deputy Assistant Attorney General Alice Fisher followed Ashcroft, fielding the questions of the subcommittee on terrorism. Fisher admitted that Justice was looking at potential proposals on follow up on Patriot I as the Justice Department explored new options that would work in the government’s war on terrorism. But, that was about all she said. Neither she nor Ashcroft admitted that a sequel to Patriot I was being drafted. Like most congressional inquiries, this one was a waste of taxpayer money since the senior leadership of Congress--which already knew far more than Fisher--didn’t want this cat out of the bag any more than Ashcroft did.



Just Say No
Copyright 2009 Jon Christian Ryter.
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