Companion Guide to DOJ's Report from the Field: The USA PATRIOT Act at Work
"The report that we are releasing today provides a mountain of evidence that the Patriot Act continues to save lives," Attorney General John Ashcroft claimed at a press conference at which he released the report. This biased 29-page report released on July 13, 2004, attempts to (1) justify the USA PATRIOT Act, (2) tout its success in preventing terrorism, and (3) silence the critics of specific sections, such as 213 and 215 without even mentioning the sections of concern, much less whether and how often they have been used.
A careful or honest reader will find that the report fails on all three counts. Unfortunately, a casual reader who is inclined to take the DOJ at its word, such as House Judiciary Chairman James Sensenbrenner, may overlook the report's numerous flaws and pronounce the report a successful defense of the entire USA PATRIOT Act. Sensenbrenner focused on the use of the Act to rescue a kidnapped Wisconsin grandmother and to imprison her captors. But many doubt that the octagenarian's rescue justifies the Executive Branch's expanded powers under the USA PATRIOT Act, or that she could not have been rescued without the Act. Sensenbrenner accuses the Act's critics of cherry-picking.
BORDC researched news stories about every conviction described in the DOJ report and found key details left out, along with several surprising quotes from prosecutors and judges that conflict with the report's claim. We hope you find our research helpful. If your legislators consider the DOJ's report proof positive that the USA PATRIOT Act is being used properly and is saving lives, you may want to review the report side by side with this guide in order to refute some of its many exaggerated claims and raise the many questions that the report does not answer.
The DOJ report does not...
- Explain how the DOJ is using the controversial sections of the USA PATRIOT Act we'd all like to know about, which would contribute to our national debate. Even the number of times that sections 213 and 215 and national security letters have been used is classified (until or unless the Attorney General finds it politically expedient to declassify it).
- Provide information on how the crimes could have been solved without the USA PATRIOT Act or, in several cases, how the prosecutor could have obtained a conviction had he or she not threatened the defendant with a longer sentence or even with being named an "enemy combatant."
- Describe embarrassing cases, such as the Detroit case in which Attorney General Ashcroft twice violated a court-imposed gag order, for which he was formally and publicly admonished; the recent acquittal by a jury of University of Idaho student Sami Omar Al-Hussayen; or the decision of Federal Judge Audrey Collins that part of the USA PATRIOT Act's material witness section is unconstitutional.
- Demonstrate that even a single charge of terrorism using the USA PATRIOT Act's tools has stuck.
- Show that the USA PATRIOT Act has helped to identify anyone connected with the September 11 attacks or with the anthrax or ricin attacks.
- Indicate how many of us are under surveillance.
Here are our observations, which follow the DOJ report section-by-section, with emphasis on the 68 convictions the DOJ selected for the report out of a total of 179 convictions since the USA PATRIOT Act was passed.
The words "terrorist" and "terrorism" are used 26 times in this 1.5-page introduction.
Look closely, and buried within the section's last paragraph is a very weak mea culpa: "As the Attorney General has affirmed, 'The fight against terrorism is now the first and overriding priority of the Department of Justice.'" As the 9/11 Commission learned, "terrorism" was not on Mr. Ashcroft's list of priorities until after September 11, 2001. Prior to that date, he had cut funding for counterterrorism.
II. Enhancing the Federal Government's Capacity to Share Intelligence
Most of this section concerns the so-called cultural wall, which the DOJ and others in the Bush Administration describe as a legal wall. Here is a quote from page 4: "During the 1980s, the Department operated under a set of largely unwritten rules that limited to some degree information sharing between intelligence and law enforcement officials." Another mea culpa, perhaps, to make up for Mr. Ashcroft's erroneous testimony before the 9/11 Commision, accusing commission member Jamie Gorelick, a Clinton appointee, of having erected the so-called "wall." As "proof", he conveniently declassified a memo written by Gorelick during her tenure. He seems to have heard the message from the Foreign Intelligence Surveillance Court that the "legal wall" was a cultural one that was largely erected during the Reagan and Bush I years. We assume it was this cultural wall to which U.S. Attorney Patrick Fitzgerald refers on page 4 of the DOJ report.
Among the terrorism cases mentioned, the cases of the "Portland Seven" and the "Lackawanna Six" are lauded as success stories. Section 218 of the Act, the report asserts, was instrumental in these and other cases because it has "brought down [the] 'wall' separating intelligence from law enforcement agents" (p. 4). Not only is this untrue -- no such wall exists legally, nor does section 218 even address communication between these two bodies -- but other investigations have called into question the report's characterization of these cases.
Here are the results of our research into the convictions given as examples:
Lackawanna Six: Although their defense was strong, the defendants were informed that they could be named "enemy combatants" if they did not accept guilty pleas. Five people pled guilty to providing material support to Al Qaeda. One person pled guilty to conducting transactions unlawfully with Al Qaeda. Washington Post, July 29, 2003.
Portland Seven: Maher (Mike) Hawash pled guilty of conspiring to contribute services to the Taliban. He said he was staggered by the September 11th attacks and by the anti-Islam backlash that followed. He testified against the other defendants in exchange for dropping the remaining charges. Ahmed Bilal and Muhammad Bilal pled guilty to conspiracy to contribute services to the Taliban and weapons charges. October Lewis pled guilty to money laundering. Battle and Ford pled guilty to one count of conspiracy to commit war against the U.S. Their failed plan to fight against U.S. forces in Afghanistan was not terrorism but an attempt to support that country's Muslim population. The Oregonian, February 10, 2004.
Virginia "jihad" case: "A federal judge imposed a life prison sentence yesterday on one member of the alleged 'Virginia jihad network' and an 85-year term on another. In an unusual criticism of her own ruling, she said she found it "appalling" but had no choice under strict sentencing guidelines." Washington Post, June 16, 2004. Sentences were for firing weapons in Pakistan. None of the defendants was ever charged with any plans for terrorism in the U.S.
Enaam Arnaout: This is a case involving the retroactive power of the USA PATRIOT Act to convict people for their material support many years ago to organizations that have recently been named "terrorist organizations" by the Secretary of State. Mr. Arnaout, Executive Director of Benevolence International Foundation (BIF), used BIF donations to provide boots, tents, uniforms, and an ambulance to units of the Bosnian army defending against the Serbian army. In the fall of 1995, his foundation provided hunting boots to civilians and fighters in Chechnya following the 1994 invasian by the Russian Army. Finally, in 1997, he purchased justice department uniforms for the Chechen government. Arnaout's statement, February 10, 2003.
Khaled Abdel Latif Dumeisi: Convicted of spying on Iraqi dissidents. U.S. District Judge Suzanne B. Conlon remarked, "I don't think anyone at the trial would conclude that Mr. Dumeisi was a sophisticated spy." Associated Press, March 31, 2004.
III. Strengthening the Criminal Laws Against Terrorism
The introduction to this section gleefully proclaims that "Section 805 of the USA PATRIOT Act bolstered the ban on providing material support to terrorists by clearly making it a crime to provide terrorists with 'expert advice or assistance.'" It does not mention that last December Federal Judge Audrey Collins found this section "unconstitutionally vague." Read Professor David Cole's testimony on this topic, which he presented to the U.S. Senate Committee on the Judiciary. The government does not need to prove that a defendent meant to support a terrorist group or that the support he or she provided could have supported any terrorism. There is also no mechanism by which to challenge the terrorist group's classification. Cole reports that one man who provided funds to Hezbollah aimed at causing the group to end its terrorism received a 145 year sentence.
Similarly shocking is a case Cole is handling in which the government recently used USA PATRIOT Act section 411 "to seek the deportation of two long-time lawful permanent residents, Khader Hamide and Michel Shehadeh, for allegedly having provided 'material support' to a 'terrorist organization' by distributing PLO magazines in teh 1980s, when it was fully lawful to do so. (The magazines were then and are still available in libraries across the nation.)"
Nevertheless, the introductory paragraphs to this section boast that the DOJ has "charged over 50 defendants with material support offenses." No evidence is offered that a single charge was for acts that contributed to terrorism.
According to the introduction to this section, USA PATRIOT Act 371 was needed to get around a Supreme Court ruling, which said that people who innocently took more than $10,000 of their own money, acquired legally, out of the country without reporting it or getting a license could not be made to forfeit their money if they did it unknowingly. Thanks to the USA PATRIOT Act, our government is confiscating millions of dollars from innocent people, including up to $659,000 from Alaa Al-Sadawi (who preached against terrorism, according to court papers: New York Daily News, July 15, 2003) and $1.7 million out of the "millions" James Gibson stole from his clients. The USA PATRIOT Act has not helped authorities locate Mr. Gibson and bring him to justice.
This section avoids the sore subject of the anthrax murders that took place just prior to the passage of the USA PATRIOT Act, focusing instead on the story of a graduate student (page 13) who hid some anthrax lab samples. There was no evidence to indicate that he meant to use the samples as a weapon, so he avoided a trial by completing a "pretrial diversion program."
Section 814 serves to increase prison terms for perpetrators of crimes against "federally protected computer." For example:
Rajib Mitrab: The USA PATRIOT Act expanded Mitra's term from what would have been two years to eight years for a childish prank. Assistant U.S. Attorney Tim O'Shea said Mitra's crime stemmed more from immaturity than ideology." Madison Capital Times, July 15, 2004.
Mass Transportation Protection
Kelley Ferguson: The unnamed "cruise ship passenger" in this story was a pregnant 20-year-old on a cruise with her parents who wanted to return to her boyfriend as quickly as possible. She unwisely wrote two threatening notes and left them in a restroom. Upon questioning, she confessed, and thanks to the PATRIOT Act's section 801, she received a two-year prison sentence. Honolulu Advertiser, May 16, 2003.
Richard Reid: BORDC is surprised that the DOJ admitted that, while it attempted to use Section 801 to convict "the shoebomber", who was actually caught and immobilized by his fellow passengers and crew while he was attempting to light a fuse on his shoe. After all, the attempt to use this section failed when the judge refused to accept the classification of an airplane as a "mass transportation vehicle" and dismissed the charge. The DOJ report explains that the PATRIOT Act was amended to fix this problem (as though it would otherwise be perfectly legal to set off bombs in airplanes!). We wonder why no other PATRIOT Act sections can be amended or fine-tuned to fix their problems.
IV. Removing Obstacles to Investigating Terrorism
The introduction to this section describes but does not name Dwight Ware Watson (AKA "tractor man"). This disgruntled tobacco farmer went to Washington, D.C., to complain that U.S. tobacco policy had ruined him and other tobacco farming families. He drove his tractor into a shallow pond and claimed he had organophosphate bombs. Blocks were closed and traffic was backed up. When his tractor was searched (This is where USA PATRIOT Act section 219 comes in. Weren't any vehicles searched before the USA PATRIOT Act was passed?), he actually had two cans of insecticide and a practice grenade that was incapable of exploding. CNN, June 23, 2004.
Here are a few more examples:
American Media, Inc.: The report proclaims this use of section 219 "noteworthy." It enabled FBI agents to get a warrant to search the premises. It is doubtful that the employers of the first person to contract anthrax via a letter, who later died of the disease, would have fought off the FBI, but thanks to section 219, "investigators saved valuable time" in the investigation, which continues--still unsuccessful--these many years later.
Edward S. Feltus: Thanks to an alert recipient in New York, who alerted the police when he or she received forged documents sent from Texas and meant for Mr. Feltus (unnamed in the description) in New Jersey. The addressee pled guilty to "aiding and abetting the transportation of false identification documents." The writeup explains that section 219 sped the process by which law enforcement agents got a warrant for searching Feltus's Vermont property. "The searches in Vermont subsequently revealed over 10,000 rounds of ammunition...." Why does the DOJ not want us to know that the weapons were far from Vermont--in a Noonday, TX, storage locker leased by William Krar, the man who'd sent the documents? Los Angeles Times, January 7, 2004.
Susan Lindauer (who is awaiting trial): Ms. Lindauer is "charged with ... participating in illegal financial transactions with a state sponsor of terrorism, specifically Iraq." The former journalist and Capitol Hill staffer claims she was trying to avert a war. The indictment mentions "an unsuccessful attempt to influence United States foreign policy," namely a letter from Lindauer to her second cousin, White House Chief of Staff Andrew Card. NBC News, March 11, 2004.
The next few pages of the report are full of hypotheticals and explanations of how various sections might work, including sections 507 and 508, which would enable the government to obtain "student education records without the student's consent." Prior to September 11, 2001, the FBI somehow obtained information from flight schools about students learning to fly planes who were not interested in learning how to take off and land. A lack of these USA PATRIOT Act sections did not prevent them from taking Zacarias Moussaoui into custody before the terrorist attacks on September 11.
V. Updating the Law to Reflect New Technology
This section describes successes using pen register trap-and-trace devices and obtaining internet and email records from providers. The report mentions a number of cases that clearly were not related to terrorism, namely:
- Indiana child pornography
- Operation Hamlet child pornography (19 convictions)
- Operation Artus child pornography (5 convictions)
- Kentucky sexual assaults (2 convictions)
- West Virginia assault of estranged wife
- Louisiana letters containing white powder
- Phishers credit card fraud using the internet
- Western Pennsylvania abduction of a 13-year-old girl by a man she'd met online
- Wisconsin kidnapping of an 88-year-old woman
We have a little more detail on the following cases:
United Self Defense Forces of Colombia (3 convictions): Two pled guilty of conspiring to provide material support to a foreign terrorist organization and conspiring to distribute 5 KG or more of cocaine. A third pled guilty of material support alone.
Jared Bjarnason: Without section 212 ... "it is not clear that investigators would have been able to locate and apprehend Bjarnason" before he carried out his threat to burn a mosque to the ground. Nor did they try other means, but his message gave a timeframe of "three days." Daily Times (Pakistan).
South Pole Research Station: The DOJ's account implies that the situation was life-threatening to the 50 scientists. However, according to a July 14, 2004, Newsweek story by Michael Isikoff and Mark Hosenball, "an FBI official said today, FBI officials quickly concluded that the South Pole station's 'critical infrastructure' support systems were not endangered." The article goes on to say that "others familiar with the South Pole case say it is unlikely that the Patriot Act would have made much difference.... The National Science Foundation, as a federally funded entity, would have had no reason not to voluntarily cooperate with the FBI by turning over records. 'I don't know how the Patriot Act came up in this,' says Peter West, a spokesman for the NSF."