Last Wednesday, the Department of Justice (DOJ)'s Office of the Inspector General (OIG) issued a semiannual report that documented the processing of more than 1,000 complaints of alleged civil rights and civil liberties abuses the DOJ received in a six-month period. The report came on the heels of two major arguments for amending sections of the USA PATRIOT Act: On Monday, federal judge Audrey Collins handed down a ruling that part of the Act is unconstitutional. On Tuesday, one of the Act's leading authors, Georgetown Law Professor Viet Dinh, said that he supports modifications.
Communities also continued to weigh in. To date, 242 municipalities in 37 states, plus the state legislatures of Hawaii, Alaska, and Vermont have passed resolutions calling for amending the PATRIOT Act.
Defenders of retaining the PATRIOT Act in its original form seized on the OIG report's conclusion that "none of the 162 matters alleging misconduct by DOJ employees related to their use of a substantive provision in the PATRIOT Act" as proof that criticism of the PATRIOT Act and calls for its review are unfounded. However, the statement's assertions relate only to whether DOJ employees, such as the FBI and the Bureau of Prisons, engaged in misconduct. Neither the statement nor the report is a referendum on the PATRIOT Act's constitutionality or on whether its application by federal, state, or local entities abridges civil liberties and rights.
Uncounted Civil Liberties Violations Involving the PATRIOT Act
Furthermore, provisions of the PATRIOT Act actually help limit the number of civil liberties and civil rights complaints brought to the Justice Department. For example, in order to bring a complaint about abuses under the PATRIOT Act, a person had to:
1. Know that his or her rights had been violated. The PATRIOT Act
raises government secrecy to new levels through the use of the Foreign Intelligence Surveillance Act (FISA), which can now be used to surveil people with no ties to terrorism, in violation of their Fourth Amendment rights.
2. Be allowed to bring the complaint. "Gag orders," such as the one in
Section 215, forbid the people required to produce records from telling anyone, denying them their First Amendment rights without due process of law.
3. Choose to file a complaint with the Justice Department rather than
through the courts.
The PATRIOT Act has also made many people afraid to exercise their First Amendment rights to write their thoughts, speak their minds in public or on the telephone, sign petitions, demonstrate their opposition to government policies, or borrow or purchase certain books, much less file complaints about their fears with the DOJ.
Civil Liberties Violations Involving Other Anti-Terrorism Measures and Policies
The OIG's statement does not assure us that other post 9/11 antiterrorism measures have not denied people their constitutional rights and liberties Most notable are:
1. The President's executive order designating enemy combatants, used
to hold U.S. citizens Josť Padilla and Yasser Esam Hamdi, incommunicado and
2. The Attorney General's directive that was used to hold immigrants
with no ties to terrorism for months until cleared by the Attorney General. Earlier reports by the DOJ's Inspector General Glenn Fine brought the shortcomings of these policies to light.
Examples of other policies and practices that have abridged rights and liberties include the following:
- The Attorney General issued guidelines encouraging federal agencies
to withhold records requested under the Freedom of Information Act, such as information about detainees rounded up after September 11, even after they had been cleared of terrorist ties.
- Chief Immigration Judge Michael Creppy ordered immigration judges
to deny the public, family members, and members of the press their First Amendment right to know about and attend certain immigration hearings at the request of the prosecutor.
- The Bureau of Prisons issued an emergency surveillance order
permitting prisoners' conversations with their attorneys to be tapped without a warrant, in violation of their Sixth Amendment right to counsel.
- The Attorney General approved increased FBI surveillance of
religious and political organizations, rescinding anti-COINTELPRO directives and authorizing the FBI to monitor and surveil groups without a warrant or any evidence of wrongdoing, in violation of the right of assembly and free speech.
- The President issued a military order establishing military
tribunals to decide the fate of noncitizen enemy combatants, such as those at the Guantanamo Bay prison facility.
- The NSEERS (special registration) and US-VISIT programs single out
people for fingerprinting and photographing on the basis of their country of origin.
- The Defense Advanced Research Projects Agency (DARPA) pursued the
controversial Terrorism Information Awareness (TIA) program, which employs data mining, which would use private data on all of us to predict terrorist activities. Although Congress de-funded the program last year, data-mining research and tools are being developed by other federal agencies.
- The FBI uses national security letters to obtain our financial and
other records, including records from travel agents, car dealers, banks, the U.S. Postal Service, and other businesses, without a warrant.
The tragic attacks on September 11, 2001, were the impetus for the PATRIOT Act and other administrative measures meant to guard against terrorism. Some of these hastily enacted measures raise issues of constitutional rights. The OIG's statement that none of the charges of misconduct the DOJ has received were related to its employees' application of the PATRIOT Act is cold comfort to those whose civil rights or civil liberties have been violated under provisions of the Act or other antiterrorism measures. Now is the time for lawmakers and the Administration to adjust these laws and measures to protect the rights and liberties that help define our country and to ensure their compliance with our Constitution and Bill of Rights.
Nancy Talanian is the director of the Bill of Rights Defense Committee, which encourages and supports an ongoing national debate on these issues.