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(DV) Goldsmith: USA Patriot Act -- The Broad Brush Debate







USA Patriot Act: The Broad Brush Debate
by Patricia Goldsmith
June 13, 2005

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Remember, in those first fragile days and weeks after September 11, 2001, when we told each other again and again that we had to go on with life as usual -- or else they win? We were afraid to go back into the city and face all the flyers on the walls, the National Guardsman in Penn Station; no one wanted to get caught on the subway; some people couldn’t get on an airplane. But we got through it. We may have developed a few quirks, like keeping the gas tank full and always having plenty of duct tape around, but for the most part we’ve gone back to normal life. Or have we? I believe that on the most fundamental level, we have not gone on as usual. With very little public debate of any kind, and with virtually no informed debate, we have abandoned many of our most cherished democratic principles.

In the truest sense, and to our increasing national grief, they have won.

A prime example is the infamous Torture Memo written by then White House counsel Alberto Gonzales for the purpose of declaring that the United States will not consider itself bound by the Geneva Conventions in its conflicts with terrorists. The Memo specifically exempts the military from the Conventions’ prohibitions on torture and its general guidelines on the treatment of prisoners.

It was a very dark day for this country when Alberto Gonzales, acting on behalf of the president and government of the United States of America, called the Geneva Conventions “quaint” and “obsolete”. On that day, the leadership of this country, by seeking to legally immunize themselves against the charge, announced their intention to become war criminals.

While making it clear that enemy combatants do not have rights, the Bush government nevertheless assured the world that they would choose to treat prisoners humanely “to the extent appropriate and consistent with military necessity.” It is this movement away from a system based on human rights to one based on the humanitarian largesse of the state that most clearly delineates the unthinkable proportions of the victory a small band of political Islamist extremists have gained over what is supposedly the most powerful country in the history of the world.

Predictably, there were fireworks last week when Amnesty International released its annual report on human rights violations around the world and singled out the United States for abuses at detention centers in Guantanamo, Afghanistan, Iraq, and a network of undisclosed locations -- a network Donald Rumsfeld might refer to as a known unknown.

But the damage doesn’t stop there; according to Amnesty International, the US’s egregious example is directly responsible for a spike in human rights abuses all around the world, especially in already repressive regimes. The administration, unwilling to answer these charges, fastened on the use of the word “gulag” in order to reframe a discussion about torture into a discussion about the discussion, a favorite tactic to diffuse public consciousness and head off meaningful debate about what we, as a country, now stand for in the eyes of the world.

Amnesty’s General Secretary Irene Zubaida Khan answered the administration’s verbal pyrotechnics with a challenge: “The administration’s response has been that our report is absurd, that our allegations have no basis, and our answer is very simple: if that is so, open up these detention centers, allow us and others to visit them . . . . Transparency is the best antidote to misinformation and incorrect facts.” [1]

But transparency is exactly what the Bush administration spends most of its time and energy avoiding. George Bush will talk about shutting down Gitmo, but he talked about razing Abu Ghraib -- excuse me, Camp Redemption -- before he changed his mind and started adding wings to houseguests rounded up during Operation Squeeze Play. Nor will Amnesty International be allowed to inspect Guantanamo, although detainees may once again be released en masse, without a word of explanation or any official accounting. There will be no revised policy and procedures. There will be no truly independent investigations, no high-level court-martials or dismissals, and most of all no recognition of a public debate on the underlying philosophical shift from international law to pre-emption, from democracy to fascism.

It was the unscheduled eruption of exactly that type of “broad brush” dissent that caused James Sensenbrenner, chairman of the House Judiciary Committee, to abruptly shut down hearings on the future of the Patriot Act. Ironically, in the midst of indignantly chastising the ACLU and others -- for trying to bring in unrelated matters like Guantanamo and the deportation of resident aliens whose only crime was being wrongly scooped up by an FBI on steroids -- Sensenbrenner allowed that the testimony of librarians who had been asked to hand over library records was indeed relevant. Give me the names of the librarians who actually received Section 215 FISA orders by next week, he thundered -- not seeming to remember that under section 215 of the Patriot Act, it’s illegal for the librarians to reveal that they were subpoenaed. [2] (See video clip here)

USA Patriot Act II would tighten the loop even further, allowing the FBI to issue so-called administrative subpoenas, without going to even a secret-court judge. In 2002, one FBI whistleblower came forward, at great personal and professional risk, to offer a countervailing insider opinion on the institutional effect of all this enforced secrecy. Special agent Coleen Rowley wrote a letter to then FBI chief Robert Mueller saying, “The vast majority of the one thousand plus persons ‘detained’ in the wake of 9-11 did not turn out to be terrorists. . . . [A]fter 9-11, Headquarters encouraged more and more detentions for what seem to be essentially PR purposes.” [3]

But try to prove it. According to the Christian Science Monitor, “Opponents of an enhanced Patriot Act are caught in a paradox that makes it difficult for them to prove that abuses have occurred, because of the secret elements in the law. . . . ‘We’re relying on the [justice] department itself to tell us whether they have abused the law,’ says Lisa Graves, senior counsel for legislative strategy at the American Civil Liberties Union.” [4]

Notice the newspaper article automatically assumes that under the USAPA, the burden of proof is squarely on those who oppose the loss of due process the USAPA represents.

Nevertheless it is possible to discern abusive intentions in the government’s ongoing extralegal attempt to broaden the definition of “terrorist”. By using that word with respect to domestic political enemies, Bush & Co. are able to jump track from constitutional protections that apply to citizens charged with crimes to the lesser standards they claim obtain with respect to “enemy combatants.”

For example, in July 2003, the Justice Department filed a complaint against the non-violent, direct action environmental group Greenpeace that claimed, “The heart of Greenpeace’s mission is the violation of the law.” It must not be doing a very good job carrying out its mission, then, since John Ashcroft had to invoke an archaic 1872 statute against “sailor-mongering” when Greenpeace activists boarded a commercial ship that was carrying mahogany illegally exported from Brazil’s rainforest. The 1872 statute, which forbids luring sailors from their ship with prostitutes and liquor, had been used only twice before. [5]

Fast-forward to May 2005, when John Lewis, the FBI’s assistant director for counter-terrorism, is addressing environmental activists, along with animal rights champions, in a different context -- this time not as mere criminals, but as domestic terrorists. “There is nothing else going on in this country over the last several years that is racking up the high number of violent crimes and terrorist actions,” Lewis said (emphasis mine). [6]

Lewis claims he made this statement on behalf of an FBI that had carefully examined the full spectrum of domestic violence, comparing animal rights and eco-activists to “rightwing extremists, KKK, anti-abortion groups and the like,” [7] and still rates the rights groups as most dangerous, even though he concedes that most of them do not target human life -- yet.

So what exactly, are the “terrorist actions” that are sending such powerful signals of violence to come? Well, he singled out Stop Huntingdon Animal Cruelty, or SHAC, which protests Huntingdon’s use of animals to test pharmaceutical products. SHAC is accused of targeting companies that do business with Huntingdon and swamping them with phone calls and e-mails; overturning a Huntingdon employee’s car in the driveway of his home in New Jersey; and the destruction of some putting greens. [8]

A UK spokesman for SHAC scoffed. “It’s a funny terrorist organization that has never killed a human, never harmed a human and does not want to bring down the government.

“If they think we are terrorists then they probably think Greenpeace and Friends of the Earth are terrorists as well.” [9] Sounds like SHAC hasn’t kept up with Greenpeace’s dangerous sailor-mongering. They really ought to be careful, since consorting with terrorists is a crime in and of itself. Who knows when Greenpeace will cross the line?

It’s impossible not to notice the other thing animal rights people and tree huggers have in common -- I mean, in addition, of course, to being terrorists. They are extremely annoying to the multi-gazillion-dollar multinational pharmaceutical and oil industries. In this context, it is pertinent to note a provision in USAPA II that imposes “severe restrictions on the release of information about the hazards to the community posed by chemical and other plants (sec. 202).” [10]

If there’s a patriotic explanation for that gag order, I’d love to hear it. No, let me guess; I’m actually getting good at this: it’s just another example of our responsible wartime leaders protecting our democratic institutions through the miracle of privatization -- when you open your mind you can realize that the power to criminalize and de-criminalize is a fungible government asset that can be bought and sold like the rest. Just another case of doing well by doing good.

Patricia Goldsmith is a member of Long Island Media Watch, a grassroots free media and democracy watchdog group.  She is also a frequent contributor to She can be reached at:

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Other Articles by Patricia Goldsmith

* Torture: Knowing/Not Knowing
* The New Jim Crow
* The Nuclear Option
* Activist Judges
* Terry Schiavo: Never Forget


1. “Amnesty Defends ‘Gulag,’ Urges Guantanamo Access,” Reuters, June 2, 2005.

2. “Congressional Opponents Lash out at PATRIOT Act, Ashcroft,” Jeff Johnson, Congressional Bureau Chief, September 25, 2003.

3. “How ‘Patriot Act 2’ Would Further Erode the Basic Checks on Government Power That Keep America Safe and Free,” American Civil Liberties Union, March 20, 2003.

4. “Patriot Act, Part II: The political tug of war intensifies,” Linda Feldman, The Christian Science Monitor, June 9, 2005.

5. “Ashcroft Case Against Greenpeace Threatens First Amendment Rights,” Democracy Now!, November 13, 2003.

6. “FBI calls UK animal activists terrorists,” The Guardian, Jamie Wilson in Washington, May 20, 2005.

7. Ibid.

8. “Animal Rights Activists Face Trial under Terror Law,” Reuters, June 4, 2005.

9. Ibid, see footnote #6.

10. Ibid, see footnote #3.