The Clipboard: Liberty in the Balance, Part I

From an article¹:

The FBI is counting mosques, and law enforcement has asked hundreds of libraries about your reading habits.

There are secret lists governing whether you can get on an airplane, secret surveillance of e-mail and the Internet, and new warrants allowing the government to search your home, your bank records and your medical files without your knowing it.

When FBI agents were told last year that terrorist training included scuba diving techniques, the agency asked for -- and got -- the names and addresses of more than 10 million Americans certified as divers.

Immigrants nationwide have been jailed indefinitely over visa violations that in the past would have been ignored, and about 13,000 face deportation.

Others have languished in cells while officials lied to their families about where they were.

And thousands have fled the United States, seeking refuge in Canada.

For countless American citizens and immigrant residents, the echoes of Sept. 11, 2001, continue to resound in what a growing number of critics contend is a loss of basic civil liberties stemming from the federal government's anti-terrorism campaign. (link)

An excellent article about civil liberties and national security.

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Complete text of the article, Liberty in the Balance -- Liberty in the balance: Security collides with civil liberties, by Sam Stanton and Emily Bazar

The FBI is counting mosques, and law enforcement has asked hundreds of libraries about your reading habits.

There are secret lists governing whether you can get on an airplane, secret surveillance of e-mail and the Internet, and new warrants allowing the government to search your home, your bank records and your medical files without your knowing it.

When FBI agents were told last year that terrorist training included scuba diving techniques, the agency asked for -- and got -- the names and addresses of more than 10 million Americans certified as divers.

Immigrants nationwide have been jailed indefinitely over visa violations that in the past would have been ignored, and about 13,000 face deportation.

Others have languished in cells while officials lied to their families about where they were.

And thousands have fled the United States, seeking refuge in Canada.

For countless American citizens and immigrant residents, the echoes of Sept. 11, 2001, continue to resound in what a growing number of critics contend is a loss of basic civil liberties stemming from the federal government's anti-terrorism campaign.

"The government is treating us like we are all terrorists," said Kourosh Gholamshahi, a 36-year-old Sacramento resident and Iranian immigrant who spent nearly a year in jail over a deportation order he ignored. "We are not all the same ... What kind of Constitution is this? What kind of democracy is this?"

Critics, both liberal and conservative, say it's a democracy that has gone too far in the aftermath of the Sept. 11 attacks by giving the federal government enormous new powers and scope in the areas of law enforcement and surveillance.

Supporters of the new laws insist that same democracy is protecting its citizens' rights, as well as their lives, by defending the nation from new terrorist attacks.

Earlier this month, on the eve of the second anniversary of the Sept. 11 attacks, President Bush said Congress still has not gone far enough and called for even greater federal powers in terrorism probes.

And Attorney General John Ashcroft has embarked on a national tour to shore up support for tough new laws passed in the wake of the attacks.

"These tools let us connect the dots, they enable us to save innocent lives," Ashcroft said during an appearance in Sacramento in July.

Rather than creating sweeping new powers, Ashcroft and his allies argue, the government largely is using law enforcement tools and techniques that have been available for years.

Yet the dispute has sparked a national debate, with more than 160 communities voting to oppose some of the powers authorized under the USA Patriot Act, the toughest new law being used in the government's war on terrorism.

After initially brushing aside such actions as the protests of uninformed liberals, the Justice Department has decided to take on the critics directly, issuing talking points to officials and urging them to address community concerns by appearing at public forums.

From Washington, D.C., to Alaska, Ashcroft and other federal officials have tried to allay fears that the government is imperiling civil liberties.

"America operates sometimes on an interesting dichotomy," Michael Mason, former head of Sacramento's FBI office, said at a forum in Grass Valley in March. "The one is a desire for absolute safety, and the second is a desire for no erosion of civil liberties."

"Believe me," he told the skeptical and sometimes jeering crowd of about 100, "I am as concerned as anyone about the erosion of our civil liberties."

But the very definition of liberty is being challenged in the way some cases are being handled.

Consider these instances:

* Two middle-aged peace activists from San Francisco find themselves singled out by authorities as they try to board a flight to Boston for a family visit. Jan Adams and Rebecca Gordon are held and questioned for hours before being released at San Francisco International Airport because their names apparently popped up on a secret government "no fly" list. Both are suing the federal government, with the help of the American Civil Liberties Union, in a bid to gain more information about such lists.

* A 40-year-old public defender surfing the Web on a library computer in Santa Fe, N.M., finds himself surrounded by four local police officers, then handcuffed and detained by Secret Service agents after someone apparently overhears a political debate in which he suggests that "Bush is out of control." Andrew O'Connor's experience in February, during which he was questioned about whether he was a threat to the president, led to legislative hearings in New Mexico over the Patriot Act and government secrecy.

* Barry Reingold, a 62-year-old retired phone company worker, gets into an intense debate at his San Francisco gym over the bombing of Afghanistan and his criticism of President Bush, and is awakened at his Oakland apartment a week later by two FBI agents who want to talk to him about his political beliefs.

The impact on the immigrant community has been more severe, and Kourosh Gholamshahi is a case in point.

From the time he came to the United States 18 years ago fleeing persecution in Iran, Gholamshahi has forged a new life in Sacramento, living quietly and marrying an American woman. He found odd jobs, including work as a busboy at Denny's and as a security guard for state office buildings.

Gholamshahi sought political asylum in 1989 but was denied, and he was ordered deported back to Iran.

For years, he continued living in the United States illegally. Before Sept. 11, that was a common occurrence, with the government infrequently following up on such cases unless an immigrant came to the attention of law enforcement.

But Gholamshahi's 13-year-old deportation order caught up with him in the summer of 2002. With the government newly focused on Middle Eastern men and Ashcroft's post-9/11 declaration that any violation would be used to expel possible terrorists, he found himself shuttled from jail to jail as he awaited his fate.

In stints in Sacramento, Yuba County and a detention facility in Florence, Ariz., he was housed at times among suspected murderers and white supremacists, and confined to cramped cells up to 22 hours a day.

While authorities had the right to detain Gholamshahi, his advocates say, the conditions under which he was held were too extreme for someone accused of an immigration violation; they argue that, like many Middle Eastern men, he was singled out because of his ethnicity.

"Kourosh is a person who has no criminal background," said Gae Geram, a Sacramento immigration bond specialist who fought to win his release. "Wanting to stay here is his only crime."

Gholamshahi was released from the Sacramento County jail in May, after a federal court agreed to hear his appeal for asylum.

The final decision on his fate remains uncertain, and his detention echoes that of thousands of others who still face the possibility of deportation.

Among them are hundreds of immigrants who found themselves rounded up after Sept. 11 during a sweep aimed at detaining those suspected of terrorist ties, something Gholamshahi was never accused of.

The Justice Department's inspector general issued a scathing report in April on the handling of the 762 detainees, saying there were "significant problems" with the way some were treated and uncovering evidence that family members and lawyers were kept in the dark about where the men had been taken.

The Justice Department rejected much of the criticism, contending in a rebuttal statement that its "actions are fully within the law and necessary to protect the American people."

Ashcroft has made the same arguments repeatedly.

"I don't believe the Patriot Act goes too far," Ashcroft said during a July press conference in Sacramento. "The Patriot Act took tools which were available against a number of other criminal activities and extended them to the fight against terrorism."

To date, federal courts have given the government wide leeway in its pursuit of suspected terrorists, ruling that it may keep secret the names of the 762 immigrants detained in the sweeps.

Courts similarly have said immigration hearings involving such suspects may be held in secret.

In addition to those legal tools, the Bush administration has created a new category that allows U.S. citizens to be classified as "enemy combatants" who can be held without charges and denied access to lawyers.

"It's a new term of art used by the government," said Kevin Johnson, associate dean for academic affairs at the University of California, Davis, law school. "It relies in part on some World War II case precedent.

"But it's really a new term created by the Bush administration. They didn't use that term in World War II. They're using it differently and more expansively and more aggressively."

Jose Padilla, the Chicago man alleged to have plotted a "dirty bomb" attack in the United States, was detained in May 2002 and declared an enemy combatant but never charged with a crime. He was denied access to an attorney and turned over to military authorities. Yaser Hamdi, a Louisiana-born man captured as a Taliban fighter in 2001, is being held under similar conditions.

The use of such tactics has stunned many legal experts, who say it hearkens back to the anti-communist witch hunts of the 1950s.

"If you arrest a U.S. citizen on U.S. soil, he has rights," Johnson said. "He has a right to counsel that's guaranteed by the Constitution.

"He generally has a right to some kind of hearing about his detention that's guaranteed by the Constitution. He has due process rights."

The Justice Department and the courts disagree, and since Sept. 11 authorities have used a variety of methods to hold people suspected of terrorist ties.

In February, longtime University of South Florida computer sciences professor Sami Al-Arian was charged with being the U.S.-based leader of a Palestinian terrorist group believed to have killed more than 100 people in the Middle East.

The charges have shocked many in the Tampa area, who know Al-Arian as a man who campaigned vigorously for President Bush's election and was invited to the White House to discuss Arab and Muslim issues.

But Al-Arian, who maintains his innocence, had been under secret surveillance by intelligence agencies since 1994, and Ashcroft says it is the Patriot Act that allowed that evidence to be used in his indictment.

Since the passage of the Patriot Act, the Justice Department said, it has ordered reviews of 4,500 intelligence files to determine whether the new standards would allow prosecutors to file terrorism charges, and courts have issued 18,000 subpoenas and search warrants in connection with anti-terrorism investigations.

Elsewhere, authorities have detained nearly 50 individuals since the Sept. 11 attacks and held them -- in secret -- as "material witnesses" for federal grand juries investigating terrorism, the Justice Department said.

Almost all those witnesses were released within 90 days, according to the department, with a handful, including so-called "20th hijacker" Zacarias Moussaoui, eventually charged with a crime.

The government maintains such actions affect only a small number of Americans, but citizens nationwide are voicing concerns about how far the country is willing to go in the name of security.

"They're trying to carve out new areas of the criminal justice system in the name of anti-terror, areas that would put people in judicial limbo," said New Mexico state Sen. Cisco McSorley, an Albuquerque Democrat who tried last spring to pass a statewide resolution opposing the federal government's new powers.

"I want the Bill of Rights to work. But it is being destroyed by this administration."

The backlash has been building steadily since the passage of the Patriot Act in October 2001. Two months after the measure passed, the City Council in Ann Arbor, Mich., responded to federal sweeps aimed at Arab immigrants by passing a resolution calling on the federal government to ensure "that all individuals are afforded their appropriate rights to due process."

Since then, through grass-roots organizing movements that have astonished even skeptical observers, critics have persuaded more than 160 communities and the legislatures in Alaska, Hawaii and Vermont to condemn the law as too broad an attack on civil liberties.

"These new powers threaten the civil rights and civil liberties of Salinas residents, and particularly affect those of Latino, Arab-American, Muslim and South Asian backgrounds," reads the resolution passed by the Salinas City Council on May 13, when the community became the 106th nationwide to approve such a measure.

Many libraries also have taken a stand, crafting new policies designed to protect the privacy of their patrons from government probes. In Woodland, Santa Cruz and Palo Alto, libraries are shredding readership records to protect patron privacy.

Among the provisions opponents find most troubling:

* The FBI has broader authority to seek information on citizens' reading habits at libraries and bookstores, as well as financial information and medical records. Critics complain that the threshold for obtaining the information is not "probable cause"; instead, agents must convince the Foreign Intelligence Surveillance Act court, a secret body that oversees investigations against terrorism suspects, that the information being sought may prove relevant in a criminal probe. The law bars anyone, librarians, for instance, from disclosing that they have been asked for such records.

* Some search warrants can be kept secret for 90 days, the so-called "sneak-and-peek" provision that allows the government to go into someone's home or business without the target knowing it.

* The government, in some cases, can jail someone for providing aid to groups it links to terrorism. Critics say anyone who donates to an aid group, for instance, may later find themselves accused of helping terrorists.

The secrecy extends beyond the provisions of the Patriot Act, particularly when it comes to air travel.

Some individuals trying to board airliners have found themselves detained without explanation, many apparently because their names are similar to those on secret government watch lists.

Jan Adams and Rebecca Gordon sued after being detained at San Francisco International Airport in 2002. They say they believe their names were similar to names on government no-fly lists, although they also wonder whether their prominence as editors of an anti-war newspaper led to their being singled out.

The idea that anyone would be singled out for airport searches because of their political beliefs is "preposterous," said Brian Turmail, a spokesman for the Transportation Security Administration. "That is not and never will be criteria for any no-fly list."

Yet details of how someone ends up on such a list -- or how many people are on it -- remain secret because of what the government says are security concerns.

When the ACLU sought information on why Adams and Gordon were stopped, the FBI responded to Freedom of Information Act requests by saying it had no such records.

Eventually, however, officials at San Francisco International Airport turned over documents indicating that 339 passengers had been stopped or questioned at the facility in connection with no-fly lists between September 2001 and last March.

Many apparently were stopped because they looked Middle Eastern, according to descriptions in the nearly 400 pages of reports, including this stop made on Sept. 19, 2002:

"Female, brown hair ... Middle Eastern ... Subj is not on a 'no-fly' list but her name is a close match."

Such tactics have some Americans asking whether they're being forced to give up too many personal freedoms.

"Does this sound like the United States, or does this sound like 1950s Russia?" asked Tim Armstrong, a 56-year-old Vietnam War veteran and ad salesman for a radio station in Juneau, Alaska, where citizens are banding together against the federal government's new efforts.

It's a question being asked by Americans on both ends of the political spectrum, with liberal and conservative groups finding themselves in an unusual alliance.

"This whole thing scares me," said Robert K. Corbin, a former president of the National Rifle Association and member of the group's executive council. "I believe very strongly in the Bill of Rights, and I don't want anybody to screw around with it."

Corbin noted that his group, widely viewed as conservative, has found common ground with the ACLU in voicing concerns over the Patriot Act. The stakes are so high, Corbin believes, that opposing groups must work together.

"I'm just afraid that the Patriot Act is like the war on drugs, where people are willing to give up their freedoms for security," he said. "And I'm not."

Ashcroft's defenders say the attorney general has been unfairly portrayed -- from the halls of Congress to Saturday Night Live skits -- as a paranoid crusader bent on curtailing citizens' freedoms.

"I don't think it's a stretch to say that the guy has been vilified in the popular media and perhaps is the most unpopular politician in the country," said McGregor Scott, U.S. attorney for the Eastern District of California, which is headquartered in Sacramento.

"He's got the second-toughest job in this country. If he utilizes the tools that have been given to the Department of Justice by Congress, he's attacked and vilified by the ACLU and others as taking away civil liberties.

"On the other hand, if he's not strong enough and we get attacked again, he goes down in history as the attorney general who let us get attacked, and that's a difficult position to be in."

Ashcroft has said he intends to use his department's powers to protect the nation from another terrorist attack, and that doing so requires quick and innovative methods of gathering information.

So last year, on the eve of the Memorial Day weekend, FBI agents began showing up in dive shops around the country asking for lists of certified divers.

Acting on a tip from a detainee at the government's prison facility in Guantᮡmo Bay, Cuba, agents had learned that some terrorists might have been trained in underwater attacks.

Harried shop owners dealing with holiday customers had little time for such a search, but the Professional Association of Diving Instructors, the biggest certification group in the world, had the names.

"We agreed to provide the information, but with some caveats that they agree it was proprietary information and that it was provided to the counterterrorism division for the single purpose of investigating possible terrorist acts using scuba," said PADI Vice President Jeff Nadler.

With that agreement in hand, PADI turned over CD-ROMs listing 10 million Americans and their addresses -- a database the FBI apparently is still using.

"We were just contacted recently for more specific information to try and track down an individual, so it's still ongoing," Nadler said.

There was little partisan acrimony when the federal government began enhancing its ability to keep watch over would-be terrorists.

One month after the attacks of Sept. 11, Ashcroft asked Congress for sweeping new powers to help combat future terrorism. The request came in the form of a bill titled "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism."

It was dubbed the USA Patriot Act, and with the rubble of the World Trade Center and the Pentagon still smoking, it was a hard pitch to resist.

In fact, it was almost impossible, because many in Congress knew little or nothing about what was actually in the bill.

"The final version of the Patriot Act that was passed into law was rewritten between midnight and 8 o'clock in the morning behind closed doors by a few unknown people, and it was presented to Congress for a one-hour debate and an up or down vote," U.S. Rep. Peter DeFazio, D-Ore., said in a telephone interview from his Oregon office. "It was hundreds of pages long, and no member of Congress can tell you they knew what they were voting for in its entirety.

"It was time to be stampeded, and who wanted to be against the USA Patriot Act at a time like that?"

As it turns out, there weren't many politicians willing to face voters in the next election and explain why they voted against patriotism. Only one senator -- Democrat Russ Feingold of Wisconsin -- and 66 House members, including DeFazio, voted against it.

Even as the measure was being pushed through, some House and Senate members who voted for it said they had misgivings, but reasoned that it was palatable because many of the act's provisions automatically expire at the end of 2005.

In recent months, however, a tougher follow-up version has been drafted, and at least one influential lawmaker has suggested making the Patriot Act permanent.

President Bush endorsed the need for such measures on Sept. 10, suggesting, among other things, that subpoena power be given to terrorism investigators rather than just judges or grand juries.

For now, the focus of much of the new anti-terrorism efforts has been on immigrants, although one provision of the unofficial "Patriot Act II" would give the government the right to strip some Americans of their citizenship.

That proposal has further outraged critics who say the country is on a dangerous new course, one that eventually could diminish civil liberties for all Americans.

"When the government says, 'We're sacrificing their rights, you American citizens need not worry,' the promise is illusory," said David Cole, a law professor at Georgetown University and author of the new book, "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism."

"When you look at history, in virtually every crisis, the first targets are foreigners. The government argues that the threat emanates from abroad ... But, eventually, government officials grow accustomed to exercising these authorities and seek out ways to extend them to U.S. citizens."

reference=http://www.sacbee.com/content/news/projects/liberty/story/7457444p-8400138c.html