L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 177, June 10, 2002
A Brief Legislative Review
Special to TLE
Prior to the destruction of the World Trade Center, the current administration, in the person of Attorney General John Ashcroft, tried to pass a number of repressive, and unconstitutional enactments as a part of the "war on crime" and the "war on drugs". They were generally given little chance of passage.
However, Since September 11, 2001, there have been literally hundreds of bills submitted to either the House of Representatives, the Senate, or both, regarding "terrorism". A recent review of statutes via the Library of Congress "Thomas" search engine, (http://thomas.loc.gov/) showed 576 propose bills with the word "terrorism" alone filed with either house since September 11th. While some of these are unrelated, (i.e., a few seem, on very cursory review, to appear to refer to abortion, or other topics), most appear to be a part of the "war on terrorism".
So, after September 11th, Ashcroft and company joined the fray, by merely re-captioning many of their proposals as "anti-terrorism" legislation. Possibly the greatest legislative obscenity fostered by the Ashcroft fascism factory to date, and sponsored by some of his legislative pet trolls, is the USA Patriot Act. Congress, of course, enacted it reflexively.
There are any number of dangerous, ridiculous, abusive and/or clearly unconstitutional provisions in that law. The following is a partial list only.
Sec.101: Counterterrorism fund. Establishes a slush fund which need not be re-authorized from year to year.
Sec.104: "Requests for technical assistance". The military can be brought in for "technical assistance" by civilian agencies in numerous cases, in contravention to the Posse Comitatus Act.
Sec.105: Electronic snooping. The Secret Service shall develop a national network of "electronic crime task forces" for purpose of "preventing, detecting, and investigating various forms of electronic crimes, including terrorism. (Translation: May develop more abilities to spy upon people, including American citizens, for any alleged crime. Not limited to investigations relating to espionage or terrorism).
Sec.203: Sharing of information. Takes down post-Nixon protections against spreading around information, including tax information, to criminal investigative agencies, at the determination of a government official that it, in some way, it might have something to do with foreign intelligence or counterintelligence.
Sec.215: Secret Warrants. Amends the Foreign Intelligence Surveillance Act (FISA), to allow it to get and serve secret search warrants to anybody, demanding information on anything, on the certification that, in the opinion of an FBI agent, it has something, anything, to do with "terrorism" or espionage. Yes, I said "secret", and I said "everything".
That a search warrant must be signed by a judge is of little comfort. Any law enforcement organization worth 2 cents already has a list of judges who will sign anything.
Further, just to make it even easier, FISA established a special court and special judges appointed by the Chief Justice of the U.S. Supreme Court, (and therefore even more predisposed to sign anything put in front of them). The hearings are "in camera", (i.e, secret), "ex parte", (i.e., the victim or his attorney are never told about the proceeding, not permitted to attend even if they knew about it, and no public record of the proceeding is kept), and may consider "secret evidence" (which would probably include massive amounts of unreliable hearsay, but since it cannot be viewed, will never be questioned).
So far, this provision has apparently been used at least three times, according to an editorial by liberal writer Nat Hentoff, in the Legal Times, on such dangerous, anti-American organizations as libraries and/or book stores. (The Hentoff article can be found at: http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename= law/View&c=Article&cid=ZZZHRP0H4ZC&live=true&cst=1&pc=0&pa=0).
Sec.223. Impediments to suing or prosecuting federal government or officials.. Under Sec.223, if you wish to sue the government for violating your rights, by way of any the above provisions, you are limited to a Bench (i.e., non-jury) trial. Despite the secrecy provisions, making it virtually impossible to find out if they have screwed you, you must bring an action within two years of the event, or within two years of "...the date upon which the claimant first has a reasonable opportunity to discover the violation", or you lose the right to sue. The act does not define what "reasonable opportunity" means.
Next, the government can apply for a stay (i.e., a stopping) of the proceedings, for as long as a tame judge is willing to stay it.
There are several provisions of the law, (so mealy-mouthed as to be laughable) that say that the government can not use this against protected political activity, (such as free speech). But, that was true long before this law was enacted. (A fact which has never stopped the FBI from doing want it wanted). However what is the penalty if someone targets you for your political beliefs and protected activities? No much. The following is too nauseating to describe, so I have merely reprinted the appropriate provision below:
"Sec. 223(d) Administrative Discipline.--If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination." -- Sec.223(c)(1)
Of course, the way this usually works, if someone does demand a criminal prosecution of an agent or other person for violating someone's rights, (for example, murdering them), someone will offer up this little gem as an exclusive remedy against the agent. My guess is, they will probably get away with it, too. So, they can destroy your business, your home, incarcerate you, and even kill you, and all they get (at most) is a few days off without pay.
Finally, this is the "exclusive remedy" for anyone damaged by government actions, taken pursuant, or purported to be taken pursuant, to this Act.
As a part of their "war on terrorism" Reichsmarshall Ashcroft and Co. have gone so far as to indict an attorney defending an muslim clergyman, on the grounds that answering questions from the press constituted communicating terrorist information; (and virtually guaranteeing that the next hundred defendants, foreign or domestic, accused to terrorism or other anti-government activities will be unable to secure competent defense counsel); demanded the "right" to bug all communications between (certain) defendants and their attorneys; broken into offices and searched them, with no notice, under "secret" warrants, (in clear violation of two hundred years of constitutional jurisprudence), and engaged in the sort of behavior that only a Lavrenti Beria or a Heinrich Himmler would consider a proper part of "law enforcement". And this is just the beginning. It is the nature of things like this that they start slowly, against those people the public dislikes most, and grow over time, both in type and frequency of use, and in type of target, (i.e., victim). If it is allowed to stand, it is only a matter of time before it is read more and more broadly, before the word "terrorism" is applied to more and more activities, and before more statutes like it are written, under the rubric of "national security", with more secret warrants, "no-knock" searches, for more alleged "crimes". It is coming.