February 1, 2005
Opportunities for Civil Liberties in the Upcoming Patriot Act Debate
To: Civil Liberties Advocates and Defenders
From: Kate Martin, Director, Center
for National Security Studies
The stage is set for a major public debate on civil liberties post 9/11. This year, Congress must decide whether to extend provisions of the now infamous Patriot Act. In addition, civil liberties issues will inevitably be raised in the confirmation hearings of Alberto Gonzales and other nominees. There is a real opportunity to strengthen the public’s awareness of, and opposition to, civil liberties abuses.
There is already greater opposition to civil liberties abuses than anyone thought possible in October 2001 when the Patriot Act was adopted and hundreds were being rounded up and jailed in secret.
- The opposition is so energized that anti Patriot Act resolutions and ordinances have been adopted in more than 360 cities and in 4 states.
- Courts have challenged administration policies; most importantly, the Supreme Court rejected the Administration’s position in the three enemy combatant cases last June.
- Concern about civil liberties is deep and widespread enough for Democratic presidential candidates to have emphasized that their attorney general would not have been John Ashcroft.
What is the opposition to the Patriot Act about?
As the editorial page of the Washington Post put it: The opposition to the Patriot Act is in fact “discomfort over the administration’s broader disregard for civil liberties,” including:
- Mass secret arrests of Arabs and Muslims followed by;
- Detentions without charges, incommunicado detentions, physical abuses by prison guards culminating in secret trials, and denial of access to the courts;
- Discriminatory enforcement of the immigration laws based on ethnicity and religion leading to arbitrary detentions and deportations;
- Jailing Americans incommunicado as “enemy combatants” without access to lawyers or the courts;
- Abuse of the material witness authority;
- Prosecutions apparently based on guilt by association (using the material support provisions of the Patriot Act, which are not sunsetted);
- Discriminatory criminal prosecutions and unconstitutional pretrial detentions;
- Eavesdropping on attorney-client communications;
- Much expanded secret wiretaps and searches of Americans’ homes and offices (under FISA not under Patriot Act sneak and peak authority);
- Spying on lawful political and religious activity;
- Massive growth in surveillance technologies with no legal protections against abuses and the ability under section 215 of the Patriot Act to secretly seize library records and commercial databases.
Most of these abuses do not stem from the Patriot Act, much less those few provisions set to expire in December 2005.
The Administration’s defense of the Patriot Act
In the past three years administration supporters have mounted an organized and far-reaching campaign to demonstrate the reasonableness and law enforcement usefulness of the few Patriot Act provisions set to expire. Again and again they have tried to shift all discussion about civil liberties abuses to questions about specific provisions of the PA, for example in setting the agendas for Judiciary committee hearings.
What can we do?
- Immediately begin to publicly articulate the broader view of post 9/11 civil liberties abuses.
- Demand that Congress and the administration focus more broadly on civil liberties abuses rather on a few Patriot Act provisions.
- Make a record around the country and in Washington of those broader abuses.
- Continue to build political support for investigating and remedying such abuses.
- Work for a much broader agenda than a few amendments to the Patriot Act .
Conclusion
We must ensure that our civil liberties advocacy reflects the broader understanding of the civil liberties threat already latent in the large and growing grass-roots advocacy . We must not squander that grass-roots energy by declaring that what we seek from the congress and the Administration is simply amendments to a few sections of the Patriot Act.