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Repeal the USA Patriot Act -- Part VI: National Security & Civil Liberty
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Source: Truthout

This is Part VI of a six-part series on t r u t h o u t on the USA Patriot Act. This part discusses national security and some steps we can take to retain both our security and our liberty.

Repeal the USA Patriot Act

Part VI: National Security & Civil Liberty

by Jennifer Van Bergen

t r u t h o u t | April 6, 2002

This is a time of fear. What is even more frightening to some people than the terrorists attacks we suffered - or perhaps one should say, on top of the attacks -- are the warlike measures of President Bush. Others feel that Bush is doing a good job of protecting us, while yet others think that he is a crook, but even if he is, it is good to have someone like that doing our dirty work for us.

Terrorism is a big issue. National security is a big issue. Civil rights is a big issue. Who is right: the hawks or the doves? (Thomas Jefferson, himself the Great Dove, resorted to the dark uses of slanderous hack writers, treasonous double agents in foreign pay, and, it is suspected, even assassins.)

I have no doubt that Al Qaida is a dangerous terrorist network. It is dangerous. It is lethal. Its members hate Americans of all creeds and races. And they will do whatever they can, even destroy themselves, in order to destroy us and our way of life.

But, these dangers do not require us to abandon our commitment to the democratic ideals of our Constitution. If democracy cannot stand up to terrorism, it is not worth much. This is the time of all times for democracy to show its colors. All the colors that make up this nation of immigrants. A free and open society is the true antidote to terrorism. This neither requires blind self-exposure to danger nor blind policing.

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The Eagle does not have to mean war. It can mean foresight, insight, and the ability to soar above paranoid prejudices.

To look in the face of terror, one must be willing to see into the darkness. It is not a comfortable thing to do. Many of us want the dirty work done, as long as we don't have to look into that darkness ourselves. But, looking at terror is not the same as abandoning fairness. The USA Patriot Act does abandon fairness, in many respects.

National security does not require this. As Bruce M. Ramer testified on behalf of the American Jewish Committee during the House Judiciary Subcommittee Hearings on the Secret Evidence Repeal Act (H.R. 2121) of 2000: "There is nothing inconsistent in assuring that law enforcement authorities are properly equipped to respond to the threat of terrorism while, at the same time, assuring that immigrants and refugees are treated fairly and decently."

Mr. Ramer's recommendations are worth noting here. He proposed adopting the procedural protections that were originally enacted in the Alien Terrorist Removal Act (ATRA) of 1996. This Act was amended by the immigration reform law later in 1996, which removed some of ATRA's protections. ATRA applied only to alien removal cases. It was intended to kick in only where an alien "would pose a risk to ... national security." Once that was determined, ATRA established rules that assured the basic procedural protections of the alien's right to a public hearing, representation by counsel, the opportunity to examine evidence, including an unclassified summary of classified evidence, and to introduce exculpatory evidence.

These due process procedures were not preserved in the 1996 Anti-Terrorism and Effective Death Penalty Act, and although more and more federal courts were finding portions of that law unconstitutional, many of the same provisions were again enacted in the USA Patriot Act. As I pointed out in Part I of this series, one might question the lucidity of our congressman in doing this - and, thus, the legal validity of the Patriot Act.

Ramer's recommendations do not answer the question of how one determines that an alien, or an American for that matter, is a risk to national security, but it does address the problem of the use of secret evidence.

As Parts III and IV of this series show, the ability to use secret evidence opens the door for wide abuse of civil rights. Under the USA Patriot Act, although the Supreme Court has rejected indefinite detention of aliens in deportation, an alien can be detained his entire life on the basis of evidence he has no opportunity to meet or refute. This is appalling and unacceptable in a democratic society.

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In addition, in the cases in which an alien has finally been given the opportunity to challenge the secret evidence, courts have found no basis for detention. For example, the case of Hany Kiareldeen, released after 18 months of detention in October 1999, apparently held solely on accusations made by his wife during a custody battle. Upon his release, she disappeared with their child. Or Nasser Ahmed, released after three years in solitary confinement on no charges. Or Anwar Hammad, never charged with a crime, never found to have been engaged in or associated with terrorism, released after over four years. Or Dr. Mazen al-Najjar, a respected university professor, a stateless Palestinian, and a resident in the U.S. for 18 years before he was detained. After several years in prison, al-Najjar was released in December 2000, the judge finding the classified evidence insufficient grounds to hold him. Free for about a year, he was then taken again into custody, where he currently remains, on deportation proceedings.

To date, secret evidence has been used largely in immigration cases. It is clear that under the USA Patriot Act, its use will be extended to cover domestic criminal cases. Only recently, the Department of Justice announced its plans to use secret evidence to justify financial sanctions against an American Muslim charity based in Chicago.

No person should be detained, indicted, or convicted on secret evidence alone in order to protect national security. The idea is an oxymoron. The true threat to national security is a government that can jail people on evidence that couldn't stand the light of day.

The phrase "a threat to national security" should not be used so often that it sounds like the boy who cried wolf. Americans need to question how a threat to national security should be determined. Do we simply round up all the Arabs or Muslims, like in the movie, "The Siege"? Why not then round up all the peace activists, environmentalists, and political opponents?

There should be procedures established to determine what meets the criteria of "a threat to national security." At this time, at best, federal judges are merely given the opportunity to view classified evidence in camera and ex parte, and apply their own individual, personal judgment as to whether revealing the evidence would endanger covert operations or operatives or national security, the evidence is adequate grounds to further detain the alien suspect, whether and what portions of the secret evidence should be summarized in an unclassified summary for the defendant to challenge, and whether such a challenge would be sufficient to successfully refute all the charges.

Judges must now use their best judgment to make these determinations, but they have no standards or baseline criteria to follow in making such determinations.

This is, as I say, at best. At worst, judges are not even given an opportunity to review such evidence or to determine whether the indictees or detainees are held on the slightest rational ground. Judicial oversight must never be relinquished, especially on cases that concern national security or use secret evidence.

The USA Patriot Act raises many additional concerns. This series has raised only a few of the worst ones.

In closing, it is worth quoting the words of a senator speaking before one of our early congresses. On June 21, 1798, the last day of the congressional debates on the Alien and Sedition Acts, Senator Edward Livingston spoke the following words to the Senate:

"If we are ready to violate the Constitution, will the people submit to our unauthorized acts? Sir, they ought not to submit; they would deserve the chains that these measures are forging for them. The country will swarm with informers, spies, delators, and all the odious reptile tribe that breed in the sunshine of despotic power ... The hours of the most unsuspected confidence, the intimacies of friendship, or the recesses of domestic retirement, afford no security. The companion whom you trust, the friend in whom you must confide, the domestic who waits in your chamber, are all tempted to betray your imprudent and unguarded follies; to misrepresent your words; to convey them, distorted by calumny, to the secret tribunal where jealousy presides - where fear officiates as accuser, and suspicion is the only evidence that is heard ... Do not let us be told that we are to excite a fervor against a foreign aggression to establish a tyranny at home; that like the arch traitor we cry "Hail Columbia" at the moment we are betraying her to destruction; that we sing "Happy Land," when we are plunging it in ruin and disgrace; and that we are absurd enough to call ourselves free and enlightened while we advocate principles that would have disgraced the age of Gothic barbarity."

The USA Patriot Act returns us to the age of Gothic barbarity. This Act does not belong in a democracy. It should be repealed. If it is not repealed, it should be amended to remove those provisions, which violate the civil rights of citizens and immigrants.

Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter.

Jennifer Van Bergen is an Editor and a regular contributor to t r u t h o u t.

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