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Repeal the USA Patriot Act -- Part V: Who's a Terrorist?
Fair Use Statement


<-- Return To TerrorSpeak

Source: Truthout

This is Part V of a six-part t r u t h o u t series on the USA Patriot Act. This part discusses how the Act punishes some people for engaging in innocent First Amendment associational activity, violates other civil rights of immigrants, uses secret evidence, curbs judicial oversight, and invades financial and student records.

Tomorrow, Part VI, the last part of the series, discusses national security and proposes a few steps we can take.

Repeal the USA Patriot Act

Part V: Who's a Terrorist?

by Jennifer Van Bergen

t r u t h o u t | April 5, 2002

Yesterday, in Part IV, I discussed the violation of constitutional protections under the USA Patriot Act, the blurring of lines between foreign and domestic investigations, the sharing of sensitive personal information between agencies, the sneak and peek law, and the Fourth Amendment violations under the new electronic surveillance provision. Today: who's a terrorist, indefinite detention of innocent immigrants, violation of immigrant's rights of association, and the invasion of financial and student records.


You think you know who the terrorists are? They are extreme fanatical Muslims from other lands, right? Think again. A terrorist could be anyone who tries to influence the policy of the government by intimidation or coercion, if their actions break any laws and are dangerous to human life, presumably including their own. A 1960's anti-Vietnam War protester would fit this definition.

Section 802 of the Act, borrowing from the definition of international terrorism contained in 18 USC 2331, creates the federal crime of "domestic terrorism."


Among other things, this section states that acts committed within the United States "dangerous to human life that are a violation of the criminal laws" can be considered acts of domestic terrorism if they "appear to be intended" to "influence the policy of a government by intimidation or coercion," or "to intimidate or coerce a civilian population."

This provision applies to United States citizens, as well as aliens.

One must ask what kind of legal standard this is. "Appear to be intended"? How does one determine that? This leaves tremendous latitude in the hands of zealots and paranoiacs. If a Senator wrote Ashcroft that he wanted documents from him, for all we know Ashcroft might think that the Senator was breaking the law and appeared to intend to influence policy.

This is not as far-fetched as you might think, given Ashcroft's interpretation of executive privilege. He appears to think (!) that any public request for information from him is an illegal incursion on his "right" to secrecy. In addition, with the Administration's views of what constitutes national security, who knows but that it even might view such a request as "dangerous to human life."

In commenting on this provision, Nancy Chang of the Center for Constitutional Rights writes: "Vigorous protest activities, by their very nature, could be construed as acts that 'appear to be intended ... to influence the policy of a government by intimidation or coercion.' Further, clashes between demonstrators and police officers and acts of civil disobedience - even those that do not result in injuries and are entirely non-violent - could be construed as 'dangerous to human life' and in 'violation of the criminal laws.' Environmental activists, anti-globalization activists, and anti-abortion activists who use direct action to further their political agendas are particularly vulnerable to prosecution as 'domestic terrorists.'"

Notice, further, that there is no requirement of imminent danger in this clause. In other words, you could tear down a fence, such as the protesters in Vieques, Puerto Rico did to oppose government nuclear testing there, and if somebody fell and bumped his head - or perhaps if it was only possible that someone might --, this could be grounds enough to call you a terrorist.

*Foreign Terrorist Organizations

Section 411 of the Patriot Act purportedly defines foreign terrorist organizations. However, as the ACLU points out, this provision "permits designation [of] foreign and domestic groups," since the provision defines these groups as "any political, social or other similar group whose public endorsement of acts of terrorist activity" - which, of course, under the Section 802 could mean lawful protest - which "the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities."

Again, how does one determine when a "public endorsement ... undermines" the U.S. government's "efforts" to "reduce or eliminate terrorist activities"? If you openly admire the bravery of your enemies, that could be considered a public endorsement.


In terms of undermining government efforts, Attorney General Ashcroft made perfectly clear he would interpret any public debate or dissent as just that, when he said such public discussion would "erode our national unity ... diminish our resolve ... give ammunition to America's enemies, and pause to America's friends."

This law transforms publicly beneficial discussion into a crime, and turns our law enforcers' slightest fears into acts of oppression against their own people.

*Supporting Terrorism

Under existing law (8 USC 2339b), an American citizen who gives money to an organization that the Attorney General or Secretary of State has designated a terrorist organization, can be prosecuted for the crime of "providing material support or resources to a designated foreign terrorist organization."

What is different now under the USA Patriot Act is the definition of a terrorist organization. The definition is much broader now.

The USA Patriot Act pulls together and redefines several different existing laws, none of which really define what constitutes a "terrorist organization." Under Section 411, a terrorist organization can now include not only organizations designated by the Attorney General, but those identified by the Secretary of State as having provided material support for, committed, incited, planned or gather information on potential targets of, terrorists acts of violence (drawing from 8 USC 1182).

Section 411, according to a report by the Congressional Research Service, therefore "recasts the definition of engaging in terrorist activities to include solicitation on behalf of such organizations, or recruiting on their behalf, or providing them with material support."

Thus, a terrorist activity is defined as an act in support of a terrorist activity. It's like saying "You're bad because you're bad."

You can be prosecuted for terrorist activity if you have supported or associated with an organization that is NOT even designated as a terrorist organization, since a terrorist organization can be anyone who provides material support to so-called terrorist activity, which could be someone supporting the Northern Alliance against the Taliban, or someone protesting the U.S. bombing of Afghanistan.

This is nearly a conundrum. It would be amusing if it weren't so alarming.



Immigrants fare much worse under the USA Patriot Act.

Under Section 412, any immigrant who innocently supports the activities of a designated terrorist organization could be deported or indefinitely detained. Again, the government can detain or deport an immigrant who provides lawful assistance to groups that are not even designated as terrorist organizations.

This violates the First Amendment, which protects the right of association for citizens and immigrants alike. The ACLU points out that "the history of McCarthyism shows the very real dangers of abuse" of the right of association.

It also violates the Eighth Amendment, which prohibits cruel and unusual punishment (indefinite detention), and the Sixth Amendment right to a speedy and public trial.

Further, an alien's wife and children can also be deported or detained, if they cannot prove they did not know of the terrorist activity.

An alien suspect may be held for seven days without being charged with any crime. In addition, a period of indefinite detention may begin when the suspect is charged with ANY crime, a crime that has nothing to do with terrorism at all, such as a minor visa violation that would not otherwise result in detention at all. Indeed, CNSS claims that the DOJ gave them a list of over 700 unnamed detainees, only five of whom were being held on terrorism charges.

In order to detain an alien, Ashcroft must "certify" that there are "reasonable grounds" to believe that that person is engaged in conduct which threatens national security or is deportable on grounds of terrorism, espionage, sabotage, or sedition.

"Yes, but," I hear you say, "these are terrorists!" And how do we know that, when we have only the word of John Ashcroft?

*The Sixth Amendment and Secret Evidence

Under the USA Patriot Act, the government may use secret evidence against either immigrants or citizens in these cases. The 1798 Alien Act (discussed in Part II of this series), as bad as it was, applied the evidentiary standards of the day. All evidence had to be presented in open court, subject to authentication, challenge, and cross-examination.

The Sixth Amendment protects the rights of citizens and immigrants alike to confront their enemies. Reliance on secret evidence violates this right.

Secret evidence was permitted under the 1996 antiterrorism laws, but numerous federal courts declared its use in violation of the Constitution, and over 100 congressmen had signed support for the Secret Evidence Repeal Act (H.R. 2121) in 2000 - an act that fell by the wayside in the wake of September 11th.

As one U.S. District Court judge wrote: "The [Immigration and Naturalization Service's] reliance on secret evidence raises serious issues about the integrity of the adversarial process, the impossibility of self-defense against undisclosed charges, and the reliability of governmental processes initiated and prosecuted in darkness."

U.S. Supreme Court Justice Jackson wrote in 1950: "The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected."

*The Sixth Amendment Right to Counsel

In a criminal trial, a defendant is entitled to have a lawyer assigned to them. Under the USA Patriot Act, immigration detainees are not entitled to such assignment.

This does not mean they have no right to counsel. It just means they have to obtain their own attorney. However, many detainees come from countries with few legal protections for their citizens, and, thus, have no idea they are even entitled to constitutional rights in this country, much less what those rights might be.

In criminal law, a suspect's invocation of his right to counsel protects him from further interrogation. Law enforcement may not ask any further questions of a suspect once he has asked for an attorney, until after he has consulted with an attorney and only in the presence of the attorney, if the suspect requests. Any information obtained from a suspect by law enforcement, including a confession, elicited after the right to counsel is invoked, is inadmissible in court.

It is clear from lawyers' affidavits in the lawsuit brought by the Center for National Security Studies (CNSS) against the Department of Justice (discussed in Part III of this series) that the right to counsel of immigrants is already being violated. Reports have emerged of detainees requesting and being denied access to counsel.

Again, this is an outrage in a democratic nation. Unless we Americans want to find ourselves under the same yoke, we should be raising a ruckus about this.



It should at this point be no surprise to readers that the USA Patriot Act requires financial institutions to monitor your financial transactions and share that information with other agencies (Sections 351 and 358).

The same with student records (sections 507 and 508). If the records are certified as "relevant to an investigation," educational institutions have no choice but to turn over student information, including fields of study, grades, coursework, financial information, and ethnicity.

Existing law provided adequate tools to conduct investigations. These provisions of the Patriot Act lead to more privacy violations that do nothing to further terrorism investigations.

Tomorrow, Part VI, the last part of the series, discusses national security and proposes a few steps we can take.

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.

<-- Return To TerrorSpeak

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