SENZA CENSURA n.9
Italy, october 2002
USA PATRIOT ACT
Purpose: Destroy Internal Dissidents
This article intends to examine effects and consequences of the antiterrorism measures implemented last year in the US and to show how they violates the civil liberties of all American citizens. October 26th 2002, the Congress has launched the new anti-terrorism legislation, denominated USA PATRIOT ACT, introducing the new federal crime of "domestic terrorism", which criminalizes the activities of protest and internal dissents. The increased ability of monitoring guaranteed to the executive, seriously threatens individual privacy while the possibility to incarcerate for an indetermined period of time and to deport foreigners on the base of their activities and political associations denies non residents their Constitutional rights. Representing the only senator to vote against this action, the senator of the Wisconsin Russell Feingold has affirmed:
"There is no doubt that if we lived in a police state, it would be simpler to arrest presumed terrorists. If we lived in a nation that allows the police to search your house to any schedule and for any reason; if we lived in a nation that allows the government to search our mail, to record our telephone conversations to intercept our e-mails for whatever reason; if we lived in a nation where the individuals are incarcerated for an indefinite time for what they think and they write, or on the impression that they are about to undertake a criminal action, then the government would discover and would surely arrest more terrorists. Probably however that would be a country where we would not like to live. (...) We will lose any war without shooting a hit if we will sacrifice our individual liberty."
In the few cases in which the Bush administration hasn't gotten the authorization from the Congress for thesee operations of domestic espionage, It has been authorized via executive fiat. On the base of laws and interim directives, protected from total secretiveness, the administration has questioned on the only base of simple suspicious, arrested without allegations and prisoner without justification nearly two thousand individuals of medio-Oriental and Asian nationality. At the moment the only individual that will face a trial for crimes concerning the attacks of September 11th is Zacarias Moussaoui, arrested however well before that date. Through this type of operations, the Bush administration has announced at a federal level practices of profiling based on race and/or religion for a long time already in practice thanks to the local police departments all around the US. According to the official figures, 752 people have been incarcerated after September 11, not for suspicious connections with the terrorists but for violation of the norms on the immigration. In June those who remained in jail were 81. All the other have been released or deported. We don't know who much has had the one and who the other destiny, but for sure a lot of individuals have been outcast from the United States without any kind of trial, without enjoying some constitutional rights.
After the attacks of September 11th, the magistracy has initially sustained these exceptional measures, but with speech held by the President of the Court of Appeal of Cincinnati, the situation it's changing: "Behind the closed doors, democracy dies". With this sentence the magistracy disavows the president on the secretiveness of the trials. A few days later the ad hoc court (created in the seventies to avoid the "private" use of the secret services in which Nixon was particularly separate - Foreign Intelligence Surveillance Act, FISA) was watching over on the legality of the FBI investigations. The core of the applications concerned the possibility to pass to "ordinary" investigators "informations gathered by the FBI, revolving in this way the most severe standards. This already happens, but only in particular situations and previous authorization of the court. Ashcroft wanted that the practice became routine but the court seeing a "the tendency to the abuse", has denied this possibility.
After a year from the passage of this anti-terrorism legislation it is possible to report the executive's attempt to gain more and more powers and to underline how a number of these laws interpretes strategies specifically intended to destroy domestic political dissents. During the war in Vietnam, Security Forces were broadly used to fight domestic dissent: through counterintelligence operations denominated COINTELPRO the American government has conducted a secret war against political dissent utilising violent and illegal tactics. The US Government was trying, like it's doing today to compare lack of patriotism to betrayal and treasure. The dissidents were branded as " enemy" and as such they were treated. The federal crime of domestic terrorism, in this sense, including the crime of association, work as deterrent for activists and militants intimidated even more by the actual repressive climate aggravated by the restriction to the Freedom of Information Act, a law approved in 1976 through which Congress and the average citizens are able to get reserved documents and to monitor the activities of the administration.
A Matter of Patriotism
Few days after the attacks of September the 11th, Bill Maher, conductor of the television show Politically Incorrect, has defined as cowards the American bombardments on Afghanistan; the same day the secretary of the communication of the White House highly crossed by that affirmation has told the American citizens that "you/they should be careful to what they say" since "these are not times for sentences of this kind." Still more alarming the affirmations of the minister of Justice Ashcroft, head of the department of justice and of all its divisions (FBI, INS, Bureau of Prison and of the public American district attorneys): "those people that frighten all the individuals lovers of peace with threats concerning the loss of the rights (...) your tactics help the terrorists since they erode the national unity and they weaken our determination. (...) They strengthens the enemies of the United States."
The attitude of the American administration underlines a clear impatience towards any dissent; this attitude of clean refusal has created a political climate in which whoever has criticized the government politics has been object of investigations and visits from agents of the local departments of police and FBI.
After September the11th, the investigations based on information received from informants or from citizens are more and more common. October 23rd 2001, Barry Reinghold, retired, was questioned by FBI agents because he had sustained that " this war doesn't have as objective the single capture of terrorists, it concerns above all the corporative affairs and oil" during a training in gym. The 26 October of 2001, AJ Brown, student of the university of the North Carolina, was questioned by FBI agents for an "anti-American poster " in her room - the poster criticized Bush campaign in support of the capital punishment during his campaign as governor of the Texas. The November th 2001, FBI's agents showed up at the Art Car Museum to inspect the works of art of the current exposure, "Secret Wars", in order to the search disparaging or dangerous material to the life of the president.
These "accidents" bring two sentences of the Supreme court to the mind: one pronounced during the presidency of Lyndon B Johnson, the second during the Reagan administration. Both the cases were concerning citizens arrested and convicts because their affirmations were considered threatening to the life of the president of the United States. In 1966, during a demonstration against the war in Vietnam, then seventeen year-old Robert Watts howls "If they had to give me a weapon, the first man that I want shoot is LB Johnson." An undercover investigator from the military espionage arrested Watts "cause he threatened the life of the president" according to a 1917 statute. The March 30th 1981, the day when an attempt to the life of the president Ronald Reagan, the employee Ardith McPherson joking with a colleague affirms "If they had to try again, I hope really that kill him." McPherson was signalled to the management for her affirmation and she was fired. Examining the context in which those sentences were pronounced, the Supreme court sustained that it dealt with agitated reactions, protected from the First Emendament, not real threats against the life of the president. On this basis, the Supreme court overturned the sentence of Watts and it ordered that A. McPherson was inserted again to the job.
Despite these decisions have represented a positive development for the defense of individual expression, from October the 26th 2001 the government has implemented three new surveillance programs that will entirely consists of information coming from citizens. In January 2002, the department of justice distributed a brochure in which it exhorted citizens to report to the authorities " anything suspicious they notices, both the most anomalous and the most absurd." In March of 2002, Ashcroft affirmed he wanted to increase the funds of the Neighboorhood Watch Program up to two million of dollars with the purpose to expand the objectives of the program from the criminal investigation to the war on terrorism. Last August operation TIPS (Terrorist Information and Prevention System)has gone off. This program will recruit million of informants among the common citizens that will operate as "eyes and additional ears in support of the local Police Departments and of investigative agencies."
With a certain irony the representative of Ohio, Tennis Kucinich, observed: "It seems that we're going from the Information Society to an Informant society. One information a day and in one year we will be all locked. We can do this way: we put some fences all around our borders and then probably we will feel surer there."
These operations of intelligence have been accompained by a psychological and methodic campaign to eliminate any form of domestic dissent, focused on the elimination of any criticism towards the administration; they operated in this sense through the work of two conservative organizations with strong bonds with the president Bush.
In November of 2001, the American Council of Trustees and Alumni has published an essay with the title "Defending Our Universities are Failing America and What can Be Done About It": the document in question accused the universities to be little patriotic and documented 117 affirmations done inside American campuses in which "the blame is turned first to America". The teachers' names "guilty" to have pronounced those sentences were publicly diffused and omitted only in a second time. Two victims of this black book have been Hugh Gusterson, professor of anthropology at the MIT and Eric Foner, professor of history near Columbia University in New York; commenting the essay by ACTA, Foner has affirmed that "explicit purpose of the ACTA is to intimidate all those who have different opinions. Luckily, the teachers don't have to take an oath of fidelity yet."
The document by ACTA has been followed in March of 2002 by a big advertisement published on the New York Times and sponsored by the Americans for Victory Over Terrorism, an organization that counts among members a number of influential republican, among which William Bennet, that has operated as secretary of education in the Reagan administration and as "Czar of the Drug War" with the Bush-father administration. The document by AVOT underlined and criticized professors', entertainers' and journalists' affirmations that the organization considers not patriotic.
As the positions of AVOT and ACTA are legitimate since protected from the first Amendment equally discordant opinions should be approved: insinuating that who expresses different opinions is an enemy of the nation means trying to eliminate any form of opposition and criticism towards the administration" - the comment of a lawyer and activist from the Center for Constitutional Rights.
Crime of association
The First not only protects the liberty of expression but also the liberty of association with the explicit purpose to allow the exercise of collective political activities. The Supreme court has established that the simple affiliation to an organization that has objectives both licit and illegitimate cannot be considered valid evidence for an incrimination: in the system of American justice the guilt has to be personal and necessarily has to concern specific crimes. The laws that have created the new federal crime of "domestic terrorism", included in the Patriot Act, they introduce the crime of association criminalizing in this way numerous American citizens who have expressed opinions in support and/or who have furnished material support to organizations that the secretary of state has labeled as terrorist - 33 organizations included in the Foreign Terrorists Organizations. The Material Support Statute included in the Anti Terrorism and Effective Death Penalty Act (AEDPA, 1996), strengthened by the new anti-terrorism measures, considers a crime punishable with 15 years, or with life sentence in the case of victims, to furnish material support to a FTO. The concept of "material support" it implicates the "training", "personal" and/or "suggestion or support " to any FTO: the criminalization of such activities prevents any the practice of political activity with purposes of pacific resolution of conflicts and activities such as writing letters and supporting petitions for these organizations, or sustaining the cause of a FTO in front of the Congress or the United Nations and even instructing FTO's members on laws and on international rights. If the Foreign Terrorist Organizations had been in vigor during the eighties, the African National Congress would have been labeled as "terrorist" and thousand of busy U.S. citizens in actions to erase the aphartheid in South Africa would be found as convicts to face long periods in jails.
The statute of the FTO allows only people belonging to a "terrorist organization" to oppose to their designation but the secretiveness of the procedures and the indeterminateness of the initial evidences makes any attempt practically vain. The analysis of the standards to be considered "terrorist" are very vague, the only constant seems to be that all these organisations haven't denied the use of violence as form of struggle and political opposition. Moreover the preventive character of the "War on terrorism", the list of the candidates, and the limitations to the civil rights for US citizens will increase in the months to come.
For non citizen, according to the new laws on terrorism, the Bush administration has the power to arrest and deport individuals for their associations with organisations included in the FTO. Section 411 of USA Patriot Act include all those people who have furnished support not only included to organisations included in the Foreign Terrorist Organisations but also in the Terrorist Exclusion List and in the list of the organisations "considered but not officially designated". Section 412 concerns the possibility to hold an individual for an indefinite period and to deport through the INS in case the secretary of state "has reasons to believe" that the individual is implicated with a FTO, TEL and DND.
In a country in which the government can support militarily and economically organisations like the Talebans and a few years after the same government considers the same people their worse enemy, non residents that have strong bonds with social and political movements in their countries of origin could be incriminated and/or deported according to recent events.
The Cost of the political activism
The cost of political non violent activity, already considerable before the attacks of September the 11th, is considerably increased. Activists and organisations have been put under surveillance, they were considered as a place for undercovers, for investigations and disrupt as a result of the introduction of the new crime of domestic terrorism. With the new directives for Investigative agencies of May 30th 2002, all the premises been for the rebirth of the ignoble programs known as Cointelpro have been set forth.
The new crime concerns all "dangerous actions for human life and actions in violation of the laws" if they were "meant... to influence the government politics through intimidation and coercion" and in the case "they happen in the jurisdiction of the United States ".
Any action of civil disobedience inside the United States violates at least three some five elements that contribute to the definition of the "domestic terrorism": it constitutes a violation of the present laws, if meant to influence government politics and they happen on the American ground. Many actions of civil disobedience, included road blocks, would also be considered "dangerous actions for the human life", meant to influence government politics using "intimidation and coercion", complying in this way the two lacking elements.
As a result, activities of protest previously judged and condemned with light sentences, they are the potential federal crimes now.
The new powers granted to investigative agencies allow to gather data concerning activists and militants and to store them in the RISS (Regional Information Sharing System), a database readily available by local, government and federal police officers. Before the passage of the PATRIOT ACT, to be included in this database a direct connection to a specific crime was necessary and at that time "domestic terrorism" was not considered a crime. As Gerald Lynch, a federal employee confirms: "the PATIOT ACT makes it simpler to record [[infos concerning suspicions of terrorism] in database so that any information would be easily available."
The first internal guideslines on domestic espionage were issued in 1976 as direct consequent of the conclusions drawn by the Church Committee concerning the illegal operations conducted by the FBI. May 30th 2002, Attorney General John Ascroft introduced the new guidelines: the terrorist emergency has created the conditions through which the FBI will be able to operate without any limits in field of political espionage, just like in the Cointelpro era.
The guidelines new authorise FBI agents to begin an investigation "when facts or circumstances point out that a crime has been or will be committed". Investigations are authorised from the legal office and from the special agent in charge and it can be protracted till one year without any authorisation from the general district neither any judge. Once one became the target of an investigation, the guidelines don't give any real guarantee for what concern the use and the diffusion of personal data, even in case of legal activities. According to this official document, the FBI has the possibility to collect information on members, on the economic resources, on the activities and on the objectives of a particular organisation. Once one became the target of an investigation, the FBI agents is authorised to use " any technique he deems necessary", as indicated by the Department of Justice: these techniques vary from the use of confidential informants, to undercover activities and counterintelligence operations, to electronic eavesdropping to seizures.
In case the FBI lacks necessary evidence to begin an investigation but there is information and/or indications of possible criminal activities, the agents can ask the authorisation to their supervisor for a "preliminary investigation" that can last up to 180 days: also in absence of any evidence, the FBI can use "any resource to identify threats or terrorist activity."
Given the vagueness of the Ashcroft's guidelines and the ambiguity of the crime of domestic terrorism, it is very probable that whoever is committed to social and political opposition will be targeted for surveillance and victims of trials and long sentences.
After September the 11th, the local police departments, with technical support from the Department of Justice and from the FBI, have resuscitated the infamous "Red Squads", the units with assignments of political investigation, sadly famous during the "kingdom" of Hoover, whose activities vary from the monitoring the literature of groups considered subversive to questioning demonstrators, from the creation of informants to infiltration.
In the city of Denver, a city of liberal and progressive tradition, for instance, the Police Department has created "Spy Files" concerning the political activities of 3200 individuals and of 208 organisations at least. Among the groups set under investigation there are the American Friends Service Committee (a pacifist religious group that has received the nobel for peace) and Amnesty International, both labelled as " extremists and criminal organisations".
In March 2002, the American Civil Liberties Union, an association of progressive lawyers, moved a charge against the Denver Police Department afferming that surveillance activities of such entity frighten and prevent many individuals from exercising their lawfull political activities; many activists fear they might be labelled "extremists". In 1972, in Laird vs Tatum, the court stated it's necessary to show "specific damages or threats of future damages" and that the simple fear produced by such investigations is not a valid motivation to undertake a charge.
En another precedent: the Court of the Appeals of the 3° District following Tatum granted the chance to undertake à la charge because the agents divulged confidential information to organisations private and to TV networks without any other intention than damaging political activists.
The Government Secretiveness
The events of September the 11th have been used, on one hand as pretext to widen the powers of the Bush administration, on the other, to limit the access to government information with the explicit purpose of censoring from public scrutiny the activities of the executive.
The Bush administration has refused the applications, conducted under the Freedom Of Information Act and the Right to Know Law of New Jersey, to get information concerning two thousand, or more, individuals arrested during the investigations of the post 9/11 and it has classified all the information concerning procedures of trials and deportations of non-residents through the directives of the Judge Michael Creppy.
The Bush administration has reduced the chance to access to government documents, it has persuaded the press to reduce coverage concerning US Army activities and it has admitted to have spread false information to the foreign countries and press.
Despite in 1993 president Bill Clinton affirmed "For more than a quarter of century, FOIA represented a mean to strengthen our democratic principles. The statute is based on the principle that an informed citizen is essential in the democratic process. The more citizens will be informed the better they will be governed " while Janet Reno incited the diffusion of declassified government documents. On the 12th of October2001, the "politics of the secretiveness" began; Ashcroft has imposed a politics of strong secretiveness. Larry Klayman, of Judicial Watch, noticed in this attitude "an extreme arrogance on the side of the government, as if decisions and politics could not be criticised."
Bush restricted the access to the Reagan administration's classified documents, documents that would have had to be declassified on January the 20th 2001 according to a 1978 Presidential Record Act. And the historian Stanley Kutler underlines "We must be clear about it: the decisions Bush took doesn't have anything to do with national security; this decision is functional to the very exclusive club of ex and future presidents."
With the restriction to the FOIA and to the Presidential Record Act, sensitive information whose meaning and definition are so vague that could include any information the Government could simply judge embarrassing.
The Bush administration has adopted a meticulous supervision on information concerning the military activities of the US Army preventing the press from spreading any of news. In truth, the US media have shown too much complaisant in the acceptance of all the limitations and the restrictions coming from the White House; the 5 national televisions - ABC News, CBS News, NBC news, Cable News Network and Fox News Channel - and the main newspapers have signed joined accords with the Government respectively on October 10th and 11th 2001.
February the19th 2002, the New York Times has revealed that the Pentagon created the Office of Strategic Influence, whose only purpose was the dissemination of false information to foreign media, to produce propaganda in support of the government and also to hack informative system of foreign countries.
With the full powers granted to the president in a moment of national emergency and collective hysteria, a congressional supervision to prevent potential abuses is very necessary in light of potential governmental abuse but with the administration refusal to answer those interpellations and to cooperate with members of the Congress, the us government seems to have cracked the system of monitoring of the executive, a peculiar element in the system of American Government. An example among others concerns Tom Ridge, responsible of National Safety: the Government has not allowed him to be questioned by Congress quoting his status of presidential adviser, meaning he was not an executive's member.