International Relations Committee
March 2003

LEAGUE POSITION
THE USA PATRIOT ACT
THE HOMELAND SECURITY ACT OF 2002
CIVIL LIBERTIES AFTER SEPTEMBER 11
TIMELINE: A BRIEF HISTORY OF RESTRICTIONS ON CIVIL LIBERTIES
REFERENCES

In the aftermath of September 11th, the people of the United States have been very concerned about the security of our people. Our elected officials have been taking steps to prevent additional acts of terrorism.

The history of the United States includes many examples of expansion and contraction of the

liberties of its people. Being a nation of immigrants has meant that the source of our strength at times has been the source of our fear. It is no different today. As we consider the acts passed by Congress in 2001 and 2002, once again the effects on immigrants are clear. In the effort to provide security for all, there is great potential for abuses of liberty.

LEAGUE POSITION (March 1982)

The LWVUS believes in the individual liberties guaranteed by the Constitution of the United States. The League is convinced that individual rights now protected by the Constitution should not be weakened or abridged.

THE USA PATRIOT ACT

(Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act)

H.R.3162 was introduced October 23, 2001 and was passed on October 24, 2001, without amendments, by the 107th Congress. The bill became Public Law No. 107-56. The provisions of three other anti-terrorism bills, passed earlier in the month, were incorporated as Title III in H.R. 3162. This act is not a stand alone law; most of its 132 pages amend existing federal statutes ranging from foreign surveillance to money laundering and were in the hopper before September 11.

According to the Congressional Research Service summary, major parts of the Patriot Act include:

Information Collection: Gives federal officials greater authority to track and intercept communications, both for law enforcement and foreign intelligence purposes.

Money Laundering: Requires collection and sharing of financial transaction information and vests the Secretary of the Treasury with regulatory powers over US financial institutions concerning suspected money laundering and

terrorist activities.

Alien Terrorists and Victims: Seeks to further close our borders to foreign terrorists by provisions controlling entry into the United States.

New Crimes, Penalties and Procedures: Seeks to detain and remove terrorists within our borders by creating new crimes, new penalties and new procedures for use against domestic and international terrorists, including increasing rewards for information, lengthening the statue of limitations applicable to crimes of terrorism, authorizing "sneak and peek" search warrants and execution of warrants nationwide and internationally.

Troubling provisions of the Act include:

Immigrants - The Attorney-General can detain non-citizens on his own say-so without a hearing. The Act authorizes deportation, based on any support to a disfavored group, without any requirement that the support be connected to a terrorist act.

Citizen’s Rights - Property can be seized without notice, without a hearing and on the basis of secret evidence. The government is given broad access to sensitive business and financial records of individuals without having to show evidence of a crime. Conversations with a lawyer may be monitored without a warrant or denied altogether and the right to a public hearing upon arrest

exists only with the Attorney General’s consent.

Privacy - The Patriot Act reduces judicial oversight of a host of investigative measures, including wiretaps, expands the government’s ability to track individuals’ internet use and gives federal officials expansive new powers that are in no way limited to investigating terrorist crimes. It authorizes the government to conduct wiretaps and searches in criminal investigations, without probable cause of a crime, as long as the government claims that it also seeks to gather foreign intelligence. The question arises that these activities are in violation of the Fourth Amendment.

Freedom of Association - Under the Patriot Act amendments to pre-existing emergency powers laws, the President can designate any organization or individual a terrorist, thereby freezing all their assets and criminalizing all transactions by them. Muslim charities have been shut down, some without any charges. One has been designated a terrorist organization and was given no notice or hearing prior to its designation.

THE HOMELAND SECURITY ACT OF 2002

This act establishes the Office of Homeland

Security. The primary missions of the department are preventing terrorist attacks within the United States, reducing the vulnerability of the United States to terrorism at home, and minimizing the damage and assisting in the recovery from any attacks that may occur.

The five major functions within the Department are:

• information analysis and infrastructure protection;

• chemical, biological, radiological, nuclear, and related countermeasures;

• border and transportation security;

• emergency preparedness and response; and,

• coordination with other parts of the federal government, with state and local governments, and with the private sector.

Secretary of Homeland Security, Tom Ridge, was appointed by the President and confirmed by the Senate in 2003. The senior management team will consist of up to twelve Senate-confirmed officials. It will be enlarged by other appointments that will not require Senate confirmation.

This cabinet-level agency will include 170,000 employees from the consolidation of all or part of 22 federal agencies into one umbrella department, an effort that will take two years or more. Establishing this sprawling new department is the largest reorganization of the federal government since the Defense Department, Central Intelligence Agency and other national security entities were created at the onset of the Cold War in 1947.

The Department will work with executive departments and agencies, state and local governments, and private entities to ensure the adequacy of the national strategy for detecting, preparing for, preventing, protecting against, responding to, and recovering from terrorist threats or attacks within the United States. It will periodically review and coordinate revisions to that strategy as necessary. President Bush’s FY-2003 Budget directs $37.7 billion to homeland security, up from $19.5 billion in 2002.

Advocates for the new department of Homeland Security say the nation needs to centralize the analysis of information on possible threats and protective measures. They feel the present responsibility for response by the government to terrorist acts is too fragmented over many agencies that do not communicate well. Advocates feel the President and Congress need correct information in a timely manner.

Opponents of the new department feel that civil rights and privacy rights will be compromised by the powerful new agency. Publishers and authors of historical books fear that documents previously available under the Freedom of Information Act (FOIA) will be sealed. The ACLU (American Civil Liberties Union) is concerned about implementation of the controversial neighbor-on-neighbor spying program called the Terrorism Information Prevention System (TIPS). Other worries include the lack of citizen input into advisory committees, assuring basic due process to non-citizens, and treatment of legal immigrants as a security threat.

CIVIL LIBERTIES AFTER SEPTEMBER 11

An appropriate balance between security and freedom requires the attention of citizens as well as the government. With more dangerous threats to our country and with our leaders’ need to respond to them, here are some issues of concern:

Targeting Immigrants - 1,500 to 2,000, mostly foreigners, have been detained as suspected "terrorists" under unprecedented secrecy. None has been charged with any terrorist act. The vast majority of those arrested on immigration charges have effectively disappeared; they are not listed on any public docket, hearings are closed to the public and presiding judges are instructed, if asked, to neither confirm nor deny that their cases exist.

Military Justice - The government is attempting to by-pass the civilian justice system with "military justice" whereby the authority is given to hold people in military custody incommunicado, without any individualized hearing into the basis for their detention, without access to a lawyer and without judicial review. The detainees can be tried, and ultimately executed, without independent judicial review and without anyone outside the military, including the defendant, ever seeing the evidence upon which the conviction rests. Even if a defendant manages to prevail in such a trial, the military will not release him.

TIMELINE: A BRIEF HISTORY OF RESTRICTIONS ON CIVIL LIBERTIES

Throughout American history, war or perceived security threats have provided the political rationale for government to scale back civil liberties. Usually these abridgements have had no effect on the conflict nor on our safety, but to completely restore our liberties can be tremendously challenging.

Since this nation’s founding tens of millions of immigrants have settled in the United States. Yet nearly every wave of immigration has faced fear and hostility, especially during times of economic hardship, political turmoil, or war. The following time-line provides some highlights of measures taken to either secure our rights or to limit them.

1776 Declaration of Independence.

1787 U.S. Constitution sent to states for ratification.

1790 Naturalization Act limits citizenship to free white men.

1791 Bill of Rights goes into effect.

1800 The Alien and Sedition Acts make it a crime to falsely criticize the government or government officials.

1840’s Mobs hostile to immigrant Irish Catholics burn down a convent in Boston and riot in Philadelphia during a depression.

1860’s President Lincoln suspends Writ of Habeas Corpus (Forbids a government from holding a person in jail indefinitely without a hearing before a judge) several times during the Civil War.

1870 13th, 14th, 15th Amendments and a Civil Rights Act abolish slavery, assure equal rights to all citizens, define "citizen" as anyone born in U.S. or naturalized, and extend voting rights to African American men.

1876 Posse Comitatus Act separates civilian and military authority and forbids use of Army to enforce civilian laws.

1882-1917 Exclusion Acts pass against Chinese and other Asians with a "Barred Zone" including most of South Asia.

1917-1918 World War I. Criticizing the war effort and especially the draft is made a federal crime. 250,000 people in the "American Protective League" opened mail, wiretapped phones and incited violence against Germans and German newspapers.

1918 Deportation Act of 1918 allows deportation of radicals; 6-10,000 people arrested in "Palmer Raids" were held without communication or due process and deported.

1920 Voting rights extended to women.

1920’s "Red Scare" - thousands of foreign born, suspected of radicalism, are arrested and sometimes brutalized. Many are deported without a hearing.

1940’s Many Jews fleeing Nazi Germany are excluded under regulations enacted in the 1920’s.

1942 120,000 Japanese-Americans are interned in "concentration camps" and their property confiscated.

1943-1965 Various Immigration Acts repeal the "Exclusion Acts" and specify "preferences", limiting numbers of Eastern Hemisphere immigrants.

Late l940’s-early 50’s "McCarthy Era" where laws such as the Smith Act punish speech and associational activities with criminal and civil penalties, ostracism and job loss for anyone presumed to be associated with the Communist Party. One could be sentenced to 20 years in prison for studying Marx and Lenin.

1950’s Mexicans are targeted by a government program for deportation.

1960’s Government tracks civil rights activists including Rev. Martin Luther King, Jr., feminist organizations, anti-war activists, Black Muslims and others.

1963 Equal Pay Act prohibits discrimination in pay based on race or gender.

1964 Civil Rights Act. Title VI prohibits discrimination in public access; Title VII prohibits discrimination (race, sex, national origin or religion) in employment; Title VIII is a federal fair housing law.

1965 The Voting Rights Act codifies the 15th Amendment regarding race or color and makes it effective. Executive Order regarding affirmative action by government contractors and subcontractors.

1966 ADEA (Age Discrimination in Employment Act).

1967 Architectural Barriers Act requires accessibility in public accommodations (buildings) for people with disabilities.

1960’s and 70’s Vietnam Era. FBI Director Hoover orders surveillance of individuals and groups. The CIA and NSA (National Security Administration) illegally investigate about 7,000 Americans. As part of operation CHAOS, students who opposed the war are spied upon, and the FBI and other agencies share information with the CIA. (This information sharing was illegal at that time.) Acts of domestic terrorism by groups such as the Weathermen and SLA (Symbionese Liberation Army) provoke public concern.

1973 Rehabilitation Act bars government contractors and subcontractors from discriminating on basis of disability.

1980’s Refugee Act, Amerasian Homecoming Act and the Immigrant Reform and Control Act pass. Government denies asylum to Salvadorans and Guatemalans but grants applicants from Nicaragua and Cuba.

1988-1990 Fair Housing Act gives disabled access to multi-family housing and the Air Carriers Act to terminals. The Americans with Disabilities Act prohibits discrimination by employers and requires access to places of public accommodation and business.

1990 The Immigration Act designed to attract the skilled, educated and wealthy and to decrease marriage fraud, increases worldwide number of immigrants allowed to 675,000 per year.

Early 1990’s More than 20,000 Haitians are forcibly returned to Haiti.

1993 First World Trade Center Bombing, New York City.

1994 California Proposition 187 attempts to deny schooling, medical care, etc. to illegal immigrants.

1995 After Oklahoma City bombing, laws pass limiting the role of federal courts in hearing constitutional challenges by death row inmates and other prisoners, and restricting judicial review of many previous decisions regarding legal and undocumented immigrants, thus blocking asylum for persons fleeing persecution abroad and easing deportation of longtime residents for minor misconduct.

1996 The Personal Responsibility and Work Opportunity Law bars illegal and some legal immigrants from social services, varying by state. The Illegal Reform and Immigrant Responsibility Act bans some class action suits and allows the deportation of individuals without federal court review. The use of secret evidence is permitted.

2001 Second World Trade Center Bombing, New York City, destroys both towers and a portion of the Pentagon in Washington, D.C. USA Patriot Act.

2002 Homeland Security Act. Dept of Immigration and Naturalization requires non-citizen men from 25 nations to register for additional security checks.

Websites:

www.aclu.org

www.aclu.org/library/pbp20.html

www.constitutionproject.org

www.constitutionproject.org/ls/wartimes.pdf

www.crf.org

www.cornell.edu/topics/immigration.html (Includes Supreme Court Cases)

www.facing.org/facing/fhao2.nsf/all/September+Lesson+Civil?opendocument

www.fas.org/irp/crs/RS21203.pdf

www.firstmonday2002.com/history.cfm

www.freecongress.org

www.publishersweekly.reviewsnews.com

www.ultimateconspiracy.com/aclu.html (ACLnet Syllabi & Documents)

www.usdoj.gov/crt/voting/intro.htm

www.whitehouse.gov

www.whitehouse.gov/deptofhomeland/analysis/

www.withylaw.com/history.htm

http://fpc.state.gov/documents/organization/10091.pdf   Congressional Research Service, Library of Congress: "The USA Patriot Act: A Sketch" by Charles Doyle, Senior Specialist, American Law Division, April 18, 2002. (RS21203)

http://elibrary.bigchalk.com

Book:

Carrion, Ramon, U.S.A. Immigration Guide, 4th edition. 2002

Magazines: These articles concern the Patriot Act

Library Journal, October l, 2002 The USA Patriot Act

The Nation, January 21, 2002 Tribunal Injustice

The Nation, June 10, 2002 Justice Can’t Be Done in Secret

The Nation, June 3, 2002 Operation Enduring Liberty

The Nation, September 23, 2002 Enemy Aliens and American Freedoms

Encyclopedia:

Encyclopedia Britannica