Civil Liberties Issues

Freedom of Speech, Religion, and Assembly

At various times in U.S. history, the government’s law enforcement branches have used their prosecutorial discretion to target citizens who voice their dissent. The law enforcement targeting of citizens who exercise their First Amendment rights to freedom of speech, freedom of the press, freedom of assembly, and freedom of religion since 9-11 is certainly no exception.

Freedom of Speech

The USA PATRIOT Act section 802 defines domestic terrorism so broadly that it could apply to an individual exercising his or her freedom of speech, expression, and assembly through acts of civil disobedience. The Department of Justice has not revealed how it is using section 802.

In June 2004, Buffalo, New York, artist Steve Kurtz was detained by law enforcement and had his home searched by FBI agents. Despite finding only harmless substances, which Kurtz uses in his politically motivated art projects, the FBI proceeded with a Grand Jury hearing to decide whether to indict Kurtz under the USA PATRIOT Act’s biological agents provision. On June 29th, Kurtz’s bio-terrorism related charges (USA PATRIOT Act section 817) were dropped.

Also pitting the USA PATRIOT Act against the First Amendment, Sami Omar al-Hussayen, a Saudi computer science doctoral student in Idaho, was charged with providing material support to terrorist groups (USA PATRIOT Act section 805) by being a webmaster. A jury acquitted al-Hussayen of all terrorism-related charges in June of 2004, and prosecutors subsequently dropped all remaining charges.

Moreover, Section 215 of the USA PATRIOT Act permits the FBI to seek records from bookstores and libraries of books that a person has purchased or read, or of his or her activities on a library's computer. This change puts people at risk for exercising their free speech rights to read, recommend, or discuss a book, to write an email, or to participate in a chat room, and thus could have the effect of chilling constitutionally protected speech. It also denies booksellers and library personnel the free speech right to inform anyone, including an attorney, that the FBI has asked for someone's reading list. For more information, go to the Reader Privacy web site.

Finally, the Justice Department frequently uses Section 805 of the USA PATRIOT Act, "Material Support for Terrorism," to imply that a person has some link to terrorism. In several cases, including that of the Lackawanna Six, it has made threats in order to obtain guilty pleas. Georgetown Law Professor David Cole's May 5, 2004, testimony before the U.S. Senate Committee on the Judiciary explains that in many cases, those who have been charged with "material support" have done nothing more sinister than to exercise their first amendment right to freedom of speech or freedom of association.

Freedom of the Press

The Department of Homeland Security (DHS) has also developed new policies to target foreign journalists who come to the U.S. on business.

Freedom of Assembly

Additionally, it was revealed that the FBI has been collecting information on antiwar demonstrators. Its October 15, 2003, memo asks local law enforcement to report “potentially illegal acts” to the nearest Joint Terrorism Task Force. The FBI's listing of what constitutes suspicious behavior shows how broad “domestic terrorism” may become: rehearsing for demonstrations, raising money via the Internet, and acquiring gas masks in case tear gas is used. Police in some cities may consider the mere act of demonstrating against a war to be suspicious activity that warrants additional investigation by counterterrorism forces. In February 2004, the DOJ issued subpoenas to members of a university group involved in anti-war demonstrations. After large public opposition, the subpoenas were dropped.

The Congressional Quarterly reported that in March 2004, Washington, D.C. police used undercover officers “to infiltrate political organizations in the absence of criminal activity” and “failed to acknowledge and protect individuals’ rights to privacy, free speech and assembly.” New York and other cities have also collected information on peaceful protesters.

In February of 2006, the ACLU filed a Freedom of Information Act request with the Department of Defense. The records which they obtained show that the Pentagon, through their TALON program tracked at least 189 different anti-military protests as of February 2006. See the ACLU’s report and more information about the initial FOIA request.

More information about the government’s continued attacks on association can be found on this PBS Frontline page.

Many of these activities are conducted under, the Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigation. These regulations were revised in 2002 to rescind anti-COINTELPRO regulations requiring probable cause for surveillance of religious and political groups, authorizing FBI monitoring without evidence of wrongdoing. Of particular note is Section VI(A)(2) of the guidelines, which allow FBI members to “attend any event that is open to the public.” For more information on what important revisions Attorney General Ashcroft made to the guidelines, read the ACLU’s analysis.

Freedom of Religion

In addition to having selective policies of enforcement that target citizens who exercise their First Amendment rights, the federal government has also been practicing religious profiling. The First Amendment guarantees free exercise of religion but some policies since 9-11 may have the effect of chilling religious exercise.

In the spring of 2004, the FBI detained Oregon lawyer Brandon Mayfield under the material witness statute based on a fingerprint that allegedly linked Mayfield to the Madrid train bombings of March 2004. In May, the FBI admitted they had made a mistake. Mayfield believes that he was targeted because of his Islamic faith. The FBI did not conduct as thorough a check as the agency should have, and maybe would have, if Mayfield were not Muslim.

The FBI, Joint Terrorism Task Force, and local police departments have interviewed and harassed members of mosques. For examples, read the Council on American-Islamic Relations October Plan Report (PDF)