Some aliens may have been inconvenienced.
Civil Liberties
The Patriot Act contains more than 150 sections and amends some 15 federal statues, including laws that govern criminal procedure, computer fraud, foreign intelligence, wiretapping, and immigration.
Provisions that civil liberties groups, immigrant advocates and others have found particularly troubling include:
* Covert Search
The Act authorizes covert searches in any criminal investigation, enabling authorities to conduct a search in homes and any other private place. anIt also authorizes the taking of photographs and the downloading of computers without notifying the individual.
* Domestic Spying
The CIA is authorized to gather intelligence in America, on Americans, for the first time.
* Information Sharing
Information obtained during any criminal investigation can be shared between the CIA, FBI, NSA, INS, Secret Service and the military.
* Forum Shopping
Law enforcement can seek warrants from any jurisdiction to initiate a search anywhere in the country.
* Detention of Non-citizens
Authorities can detain non-citizens for up to seven days without charge and without judicial review.
* Expanded Wiretap Authority
Judicial review of wiretap authority is limited in several ways, including the sanctioning of "blank" wiretaps without probable cause.
* Records Access
The FBI is authorized to secure and search bookstore and library records without judicial review.
Gwen Ifill takes an in-depth look at the fallout from the wrongful detention of eight Egyptian men from Evansville, Indiana held as part of a terrorism investigation just weeks after the September 11 attacks.
Gwen Ifill:
Another one of the questions we asked in our nationwide survey is: Would you turn in a neighbor or relative to law enforcement if you thought it might prevent a terrorist attack?
More than 80-percent responded yes
Seems reasonable
But, in one Southern Indiana community, that question took on new meaning in the days after 9-11, when actually ratting on a neighbor turned these lives upside down.
Carolyn Baugh:
We tried to stop speaking Arabic in public and, you know.
Ifill:
Really?
Baugh:
Yeah. It was
Ifill:
Why is that?
Baugh:
nerve-wracking. We felt like we were drawing negative attention.
Ifill:
The negative attention would become much worse. Carolyn Baugh is part of the small Islamic community in Evansville Indiana. Just days after September 11th, the FBI interviewed her husband, Tarek Albasti, a naturalized American citizen born in Egypt. They own the Crazy Tomato, an Italian restaurant along a retail strip in town. One October night Tarek called Carolyn at home - the FBI was back.
Baugh:
It was around eight o'clock, maybe, seven-thirty - he said that they're - they were there - "they" were there, and they wanted to ask 'im a few more questions, and so maybe he would be a little late coming home.
And then around maybe ten-thirty that evening, he called and said he wasn't coming home.
Tarek Albasti:
The supervisor of the FBI, he called all of us. That's when I saw the rest of the guys - in another room. And he just told us that - the good news that everybody has been really great and everything, but the bad news that there is a warrant for our arrest as a material witness.
Baugh:
Up until then, I assumed that, you know, it was all a mistake, and it would just be - it could be undone as easily as it had been done. But then it just - it got far more scary.
Ifill:
Evansville had become a focal point in the war against terror. The FBI was tipped that Albasti and eight others - all of them Muslim, all from Egypt - were part of a plot to fly a plane into the Sears tower in Chicago.
As it turns out, Tarek Albasti had been taking flying lessons but they were a gift from his father-in-law a pilot.
Fitzgerald:
When the Evansville matter first came to light - a concern that there was a terrorist plot involving Chicago - the most important thing was to get to the bottom of it quickly.
Ifill:
Prosecutors got a court order to arrest eight of the nine as material witnesses. Wearing striped prison jumpsuits, shackled hand and foot, they were taken to Chicago, to the federal detention center. No one could find them - not their lawyers, not their wives. Tarek Albasti was terrified.
Baugh:
He was - he was banging on the inside of his cell, saying, "Please, somebody, talk to me." And his lawyer couldn't even find him. They told him that he wasn't there. So, being an American citizen, then, means nothing. Means nothing.
Ifill:
The Chicago lockup is a long way from Egypt, where Carolyn, an Arabic studies graduate from Duke, met Tarek, who was on the rowing team at the American University of Cairo. They fell in love, and got married - twice. Once in Cairo, and again, with Carolyn's family in attendance, when they moved to the U.S.
Eventually, they wound up in Evansville, at the restaurant.
Tarek brought friends from the rowing team to work there.
The couple started a new family in the house where Carolyn grew up.
But Tarek's American citizenship cut no ice in Chicago.
Ken Cunniff, his attorney, was not allowed to see him for four days.
Ken Cunniff:
The bottom line of all of it was that this man, who had done everything right in his life, was put in a position where he didn't even know if he was g- -- w- -- he had no clue as to what the final part of his existence was. And when I did talk to him and informed him the government said, "This is a potential capital case," he was truly destroyed.
Ifill:
Did you think they were just going to lock you up and throw away the key?
Albasti:
To be honest, whenever we were in Chicago, we thought, "They gonna just kill us." We were just going to be just hanged or something for something we didn't know even what - what we did.
Ifill:
Eight men, all from Egypt, all connected to Tarek; Tarek taking flying lessons.
Baugh:
I think a lot of my time with the investigators in Chicago had to do with dispelling some of those coincidences.
Cunniff:
He had not been allowed to contact his family. He didn't really know why he was there.
Baugh:
They needed to arrest somebody - didn't they? You know. So, if we've got that many fishy-looking things, then there must be some stinking fish.
Ifill:
But Tarek's lawyer knew the prosecutor, and trusted him.
Cunniff:
If it were any other prosecutor, I probably would never have allowed my client to talk, and my client would still be in custody.
Dean Polales:
We all jointly agreed that we would conduct the investigation with the FBI, and we'd do it by interviews. And they made their clients available. We interviewed family members and relatives, we sought information from foreign countries.
Ifill:
Eventually, all the men were released. The tip was bogus.
Polales:
These individuals did not have any information related to a terrorist plot directed at Chicago.
Ifill:
But the story didn't end there for Tarek. When he returned from a visit to Cairo last year, his name popped up on a warning list at Kennedy International Airport. He was delayed by Immigration officials for five hours.
So, a year and a half after their release, Thomas Fuentes, the chief FBI agent in Indiana, took the extraordinary step of apologizing to the men.
Thomas Fuentes:
That apology was that they had to endure what happened, and that they had been put through that.
Baugh:
Tom Fuentes did an incredibly human thing in - in going to the lengths that he did to make the apology public.
Ifill:
And last month, Tarek and Carolyn got word the U.S. Attorney's Office in Chicago had taken the highly unusual additional step of asking a federal judge to expunge - or completely wipe out - the records of the Evansville arrests.
Fitzgerald:
If I were a state trooper somewhere and it came up on the computer and I saw that, that would make me treat someone I pulled over for speeding a bit differently.
Ifill:
Tarek and Carolyn are grateful for the apologies. But they want their lives back.
Albasti:
There is lotsa stuff worse that this happened to lots of people. So I would say we were just lucky that we got out of this whole thing just fine.
Baugh:
I didn't have my orifices searched, and I wasn't shackled, and - you know? I - I - I didn't go through that. I'm very eager to, just put it to rest; and to thank the men who - who got it done quickly, and to urge God speed to those in positions of power who have the lives of innocent men in their hands.
Ordinary citizens can post information about public officials ---- without fact-checking. That means some of the information posted may not be true. Some might be posted by people with an ax to grind. Some politicians might be unfairly harmed by false and malicious reports.
This is exactly what's happening to innocent Americans, courtesy of politicians' willingness to sacrifice our liberty in the name of fighting terrorism.
Consider the case of Tarek Albasti, owner of the Crazy Tomato restaurant in Evansville, Ind. An Egyptian immigrant, he'd built a thriving business over six years. It all changed when the FBI arrested him and seven friends as alleged terrorists, accused of plotting attacks against the United States.
The arrests were front-page news. The men were paraded before cameras dressed in prison garb. Dubbed the "Evansville Eight," they were held in maximum security prisons without ever being charged with a crime. They spent a week in jail before they were released.
They returned to Evansville to be shunned by people who assumed they were linked to terrorists. One man was detained at an airport for five hours ---- his name had turned up in a computer database. Another was denied an apartment for similar reasons. Business at the Crazy Tomato plummeted. Albasti could lose the business he worked so hard to build.
What prompted the government to label them as suspected terrorists, arrest them and hold them without bail? The wife of one man called the FBI and said her husband was suicidal and planned to die in a crash. It wasn't true, but that didn't matter. One false accusation was all it took to destroy eight lives, along with those of their families.
Civil liberties don't exist to protect the guilty, though that sometimes is an unintended consequence. They exist to protect the innocent. They exist to protect people like Tarek Albasti and the Evansville Eight.
So forgive me if I lack sympathy for politicians who may find false information creeping into the Government Information Awareness databases. It might give them some insight into the importance of privacy and respect for civil liberties.
Steve Dasbach was national chairman of the Libertarian Party from 1993 to 1998 and national director of the party from 2000 to 2002.
7/15/03
Some aliens may have been inconvenienced.
US planning to recruit one in 24 Americans as citizen spies
By Ritt Goldstein
July 15 2002
The Bush Administration aims to recruit millions of United States citizens as domestic informants in a program likely to alarm civil liberties groups.
The Terrorism Information and Prevention System, or TIPS, means the US will have a higher percentage of citizen informants than the former East Germany through the infamous Stasi secret police. The program would use a minimum of 4 per cent of Americans to report "suspicious activity".
Civil liberties groups have already warned that, with the passage earlier this year of the Patriot Act, there is potential for abusive, large-scale investigations of US citizens.
As with the Patriot Act, TIPS is being pursued as part of the so-called war against terrorism. It is a Department of Justice project.
Highlighting the scope of the surveillance network, TIPS volunteers are being recruited primarily from among those whose work provides access to homes, businesses or transport systems. Letter carriers, utility employees, truck drivers and train conductors are among those named as targeted recruits.
A pilot program, described on the government Web site www.citizencorps.gov, is scheduled to start next month in 10 cities, with 1 million informants participating in the first stage. Assuming the program is initiated in the 10 largest US cities, that will be 1 million informants for a total population of almost 24 million, or one in 24 people.
Historically, informant systems have been the tools of non-democratic states. According to a 1992 report by Harvard University's Project on Justice, the accuracy of informant reports is problematic, with some informants having embellished the truth, and others suspected of having fabricated their reports.
Present Justice Department procedures mean that informant reports will enter databases for future reference and/or action. The information will then be broadly available within the department, related agencies and local police forces. The targeted individual will remain unaware of the existence of the report and of its contents.
The Patriot Act already provides for a person's home to be searched without that person being informed that a search was ever performed, or of any surveillance devices that were implanted.
At state and local levels the TIPS program will be co-ordinated by the Federal Emergency Management Agency, which
was given sweeping new powers, including internment, as part of the Reagan Administration's national security initiatives. Many key figures of the Reagan era are part of the Bush Administration.
The creation of a US "shadow government", operating in secret, was another Reagan national security initiative.
Ritt Goldstein is an investigative journalist and a former leader in the movement for US law enforcement accountability. He has lived in Sweden since 1997, seeking political asylum there, saying he was the victim of life-threatening assaults in retaliation for his accountability efforts. His application has been supported by the European Parliament, five of Sweden's seven big political parties, clergy, and Amnesty and other rights groups.
Ashcroft's Master Plan to Spy on Us
Nat Hentoff
Village Voice
Friday, 2 August, 2002
'Citizens Will Not Become Informants'
The July 17 editorial in The Boston Globe--not one of my columns in the Voice--was headlined, "Ashcroft vs. Americans." It began: "Operation TIPS--The Terrorism Information and Prevention System--is a scheme that Joseph Stalin would have appreciated. Plans for its pilot phase, to start in August, have Operation TIPS recruiting a million letter carriers, meter readers, cable technicians, and other workers with access to private homes as informants to report to the Justice Department any activities they think suspicious."
This newest John Ashcroft battle plan in the war on civil liberties would have us join the citizens of China, Cuba, Kazakhstan, and other countries where there is ubiquitous surveillance for signs of disloyalty to the state. Not only Joseph Stalin but also George Orwell would have understood what John Ashcroft had in mind. As The Boston Globe went on to say, "Ashcroft's informant corps is a vile idea not merely because it violates civil liberties . . . or because it will sabotage genuine efforts to prevent terrorism by overloading law enforcement officials with irrelevant reports about Americans who have nothing to do with terrorists. Operation TIPS should be stopped because it is utterly anti-American." I was first alerted to Operation TIPS by Matt Olson in Isthmus, a lively alternative paper from Madison, Wisconsin. Then the May issue of The Progressive--a national monthly magazine also out of Madison--ran the full story by Bill Berkowitz, a regular contributor to Working Assets' workingforchange.com.
This time, John Ashcroft was so confident of public applause for his plan to smoke out the lurking terrorist "sleepers" among us that he didn't keep it secret. On May 29, on the government Web site (www.citizencorps.gov/tips.html) there it was! Meet Big Brother:
"A nationwide program giving millions of American truckers, letter carriers, train conductors, ship captains, utility employees, and others a formal way to report suspicious terrorist activity. Operation TIPS, a project of the U.S. Department of Justice, will begin as a pilot program in 10 cities that will be selected. . . . Everywhere in America, a concerned worker can call a toll-free number and be connected directly to a hotline routing calls to the proper law enforcement agency or other responder organizations."
By July 16, that government Web site had removed the listing of specific kinds of worker-informants who would be watching us, but it noted that all the tipsters had to do was "use their common sense and knowledge of their work environment to identify suspicious or unusual activity." There was no definition of "suspicious" or "unusual." The president endorsed Operation TIPS, as did Homeland Security's Tom Ridge and Senate Republican Minority Leader Trent Lott. The ACLU, of course, opposed Operation TIPS. As usual, there was no word of alarm from Tom Daschle or Dick Gephardt. But Democratic congressman Dennis Kucinich, ranking Democrat on the Government Oversight Committee's National Security Oversight Subcommittee, told Bill Berkowitz in The Progressive: "It appears we are being transformed from an information society to an informant society."
Where were Al Gore, John Edwards, John Kerry, Joe Lieberman, Charles Schumer, and Hillary Rodham Clinton?
Suddenly, however, Operation TIPS seemed to crash. On July 19, Ellen Sorokin reported in The Washington Times that a prominent conservative, "House Majority Leader Dick Armey, in his markup of legislation to create a Homeland Security Department . . . scrapped a program that would use volunteers in domestic surveillance."
The Postal Service, in part because of the pressure from its unions, had already refused to permit its letter carriers to participate in Operation TIPS.
What follows is from Dick Armey's markup on the "Freedom and Security" section of the Homeland Security Bill. He wrote: "Because the [Homeland Security] Department has a singular mission of protecting the freedoms of Americans, specific legal protections will ensure that freedom is not undermined. . . . Citizens Will Not Become Informants. To ensure that no operation of the Department can be construed to promote citizens spying on one another, this draft will contain language to prohibit programs such as Operation TIPS.'"
Armey also canceled a cherished Bush-Ashcroft anti-terrorism weapon, a national ID card. Wrote Armey: "The federal government will not have the authority to nationalize drivers' licenses and other ID cards. Authority to design and issue these cards shall remain with the states. The use of biometric identifiers and Social Security numbers with these cards is not consistent with a free society."
Also, Armey--described in The Almanac of American Politics 2002 as often driving a pickup truck, wearing cowboy boots, and quoting country music lyrics--established, in his markup of the Homeland Security Department bill, "A Privacy Officer. Working as a close adviser to the Secretary, this officer will ensure technology research and new regulations from the Department respect the civil liberties our citizens enjoy. This is the first-ever such officer established by law in a cabinet department." (Emphasis added).
Despite Dick Armey's rejection of the Bush-Ashcroft plan for what conservative Republican Bob Barr calls an official "snitch system," the Department of Justice declared that Operation TIPS will continue. I called Ashcroft's spokeswoman, Barbara Comstock, and she explained that since the Senate was still debating its version of the Homeland Security Department bill, Armey's revisions had not become law; and until--if and when--they are enacted, Operation TIPS will go forward.
Next week: How Vermont senator Patrick Leahy tried to get Armey's rejection of Big Brother into the Senate bill, but was betrayed by Joseph Lieberman and Tom Daschle. We may not know until September, when the Senate returns, if we are all under government surveillance.
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)
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© : t r u t h o u t 2002
Hobit and James Morrison
Your logic says that we should have done nothing to provide better protection for 300 million Americans but instead to allow the ACLU to shackle our law enforcement the same as before 9/II.
It would be ideal to say that we could have a system of laws that would never allow misfortune such as suffered by the Evansville eight. Was it possible before the Patriot Act ? Probably not. There were many injustices prior to 9/II.
Should we put the entire population at risk and allow the ACLU to administer the judicial system? That's what our enemies would like to happen---in fact I think I can hear their laughter now.
Targeting Muslims, at Ashcroft's Discretion
Louise Cainkar
(Louise Cainkar is a research fellow at the University of Illinois-Chicago.)
March 14, 2003
On September 11, 2002, the Immigration and Naturalization Service (INS), then part of the Department of Justice, began implementing a broad program of "special registration" for certain "non-immigrant aliens" resident in the United States to facilitate the "monitoring" of people so registered "in the interest of national security." The body of rules governing special registration is now referred to as the National Security Entry and Exit Registry System (NSEERS). Registration is mandatory. Non-compliance and lack of truthful disclosure upon registration are grounds for deportation, and Attorney General John Ashcroft declared that those failing to register upon exiting the US can be barred from subsequent re-entry.
Ashcroft and the INS have repeatedly assured audiences that changes in immigration procedures subsequent to the September 11 attacks are not based on racial or religious profiling. But in practice, special registration has been nothing short of a massive roundup of out-of-status and visiting Arabs and Asians from predominantly Muslim countries. While special registration is much larger in scope than the infamous INS workplace raids of late 2001, it has evoked far less public and institutional protest than those actions. Of the estimated 3.2 to 3.6 million persons in the US who are "out of status," and the 8 million undocumented, Arabs and Muslims constitute a very small proportion, yet they are the target of this initiative. The number of persons who will be "removed" from the US as a result of this program is unknown, but Ashcroft has already removed more Arabs and Muslims (who were neither terrorists nor criminals) from the US in the past year than the total number of foreign nationals deported in the infamous Palmer raids of 1919.
"THIS NOTICE IS FOR YOU"
Special registration requires that visitors from countries designated by Ashcroft be fingerprinted, photographed and "provide information required" by the INS at their US port of entry. Registered persons must report to an INS office within ten days after staying in the US for 30 days and provide "additional documentation confirming compliance" with visa requirements, such as proof of residence, employment or study, and any "additional information" required by the INS. After that, registrants must report annually, in person, to the INS, within ten days of the anniversary of entry, and notify the INS within ten days of any change of address, job or school. Finally, they must report to an INS inspecting officer upon departure from the US, from ports specified by the INS. Registrants are given "fingerprint identification numbers," which are written in their passports.
Ashcroft's program also includes special "call-in" registration. Although call-in registration was included in his final rule of August 12, 2002, where he amended the Code of Federal Regulations to lay out his special registration program, this aspect of the program was not implemented until November 6. On that day, the attorney general published a call-in notice in the Federal Register for "certain visiting citizens and nationals" of Iran, Iraq, Libya, Syria and the Sudan who had entered the US and been inspected by the INS prior to September 11, 2002. These persons were ordered to report to specified INS offices between November 15 and December 16, unless they were leaving the US prior to the latter date. At this time, the call-in program was limited to males 16 years of age and older (based on "intelligence information" and "administrative feasibility") and excluded applicants for asylum. While US permanent residents and citizens are excluded from special registration, applicants for adjustment of status (to permanent resident) are required to register.
Call-in registrants must answer questions under oath before an immigration officer, and present all travel documents, passports and government-issued identification, as well as proof of residence, proof of matriculation or proof of employment, and "such other information as is requested by the immigration officer." The words "This Notice Is for You" are emblazoned in capital letters across the top of INS flyers produced to advertise the call-in program. With call-in registration, the abuses of the NSEERS system, and its narrow targeting at Muslims and Arabs, became evident.
ROUNDUP
The arrests and detention of between 400 and 900 registrants, mostly Iranians, in southern California during the December call-in period sparked nationwide protest, as persons seeking to voluntarily comply with the new rules were handcuffed, sometimes leg-ironed and transported to jails for visa violations. Some reported verbal abuse, sleep deprivation and body cavity searches. Most of these detainees were law-abiding, working taxpayers with families who had lived in the US for decades. Many had pending applications for permanent residency. Eventually, most of the detainees were released on bail, but removal proceedings were started by the INS at the same time. The director of the Southern California chapter of the American Civil Liberties Union said the arrests were "reminiscent of the internment of Japanese Americans during World War II."
On November 22, 13 more countries were added to the call-in list: Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, the United Arab Emirates and Yemen. Pakistani and Saudi Arabian nationals were called in for registry on December 16. Armenians were included in the initial Federal Register notice for this group, but were removed two days later after protest from the Armenian government. Similar protests from governments of Arab and predominantly Muslim countries produced no such change. The addition of Pakistanis to call-in registry sent hundreds of Pakistani families fleeing to the Canadian border to seek political asylum. The Canadians gave them future return dates and sent them back to the US, where the INS detained them and began removal proceedings against the males.
The last group to be called in to date comprises male visitors who are citizens and nationals of Jordan, Kuwait, Bangladesh, Egypt and Indonesia. On January 16, 2003 these persons were notified to register between February 24 and March 28, 2003, but this period was extended on February 14 to April 25. North Korea remains the only country on the call-in list whose population is not substantially Muslim.
AT ASHCROFT'S DISCRETION
The Bush administration uses a combination of fear and Congressional mandate as justification for what is presently a discriminatory system targeting Arabs, Muslims and Asians from predominantly Muslim countries. Ashcroft reached back to laws originating in 1940, as well as the groundwork laid by the attorneys general of Presidents George H. Bush and Bill Clinton, for his dramatic expansion of the concept of registration. To designate countries whose citizens and nationals are required to specially register upon entry to the US, Ashcroft needs only to confer with the secretary of state and then publish the names of the countries as a notice in the Federal Register. This quick and simple formula was instituted in 1993 under former Attorney General Janet Reno. However, at that time, "extra" registration procedures conducted in the name of national security were limited to port of entry fingerprinting and photography, in addition to the I-94 registration (arrival-departure record) required of nearly all non-immigrants. The ten day notice invoked for call-in registry is an interpretation of a 1981 amendment to immigration law that removed annual and quarterly address reporting for non-citizens, but allowed the attorney general to give such notice when current addresses and "additional information" was required. This section of the law was also the first to bring back the concept of special regulations for "natives of states" (rather than persons possessing certain political beliefs) since Chinese Exclusion and the Asia Barred Zone, hearkening back to the overtly racialized immigration policies of the past.
Credit for inaugurating "extra" national security port-of-entry registration procedures goes to former Attorney General Richard Thornburgh of the first Bush administration, who amended the Code of Federal Regulations in January 1991 to require the port of entry registration of visitors "bearing Iraqi and Kuwaiti travel documents." Reno rescinded this rule in December 1993, amended the Code of Federal Regulations to make the country designation process simpler and then published a Federal Register notice requiring "certain non-immigrants from Iraq and the Sudan" to register. In 1996 Reno added "certain non-immigrants" bearing Iranian and Libyan travel documents.
Ashcroft added Syria to this list on September 6, 2002, declaring that citizens and nationals of these five countries, and persons believed to be such, were subject to the new expanded special registration. One impact of the "persons believed to be such" clause is the requirement that dual nationals register, such as persons who are Canadian and Syrian citizens, or Swiss and Iranian citizens. The Canadian government issued a travel warning for its citizens going to the US shortly after the program was implemented, following the US deportation to Syria of a Canadian citizen in transit at New York's John F. Kennedy airport and the reported harassment of Canadians of Arab and Asian descent at US borders. (It later lifted this warning after the US government promised to treat Canadian citizens better, although registry still applies.)
A national entry and exit system was first mandated by Congress in 1996, as part of the Illegal Immigration Reform and Immigrant Responsibility Act. In 2000, Congress amended this mandate, directing the INS to use "available data" to create an integrated entry and exit data system, and stated that no additional data collection was authorized. Funding for a national entry and exit system was authorized in the USA PATRIOT Act of October 2001 and bolstered in the Enhanced Border Security Act of 2002. The NSEERS program and "call-in registration" however, were neither created by nor subjected to the approval of Congress. They are a set of administrative regulations created by members of the Bush administration.
The Department of Justice has said that NSEERS will be implemented for visitors from all countries by 2005. When the INS launched an initiative in January 2002 to track down and deport some 6,000 males from Arab and predominantly Muslim countries who had been ordered deported, a group comprised of less than 2 percent of all "absconders" in the US, government authorities responded to charges of racial profiling by saying other communities would be next. They weren't. Members of other communities have yet to receive flyers telling them "This Notice Is for You."
As evidence that NSEERS is not targeting Arabs and Muslims, the INS points to a seemingly arbitrary provision of the special registration regulations. In addition to citizens and nationals of the designated countries, a visitor of any nationality can be required to submit to special registration if an INS inspecting officer has reason to believe that s/he meets pre-existing criteria determined by the Attorney General. These criteria -- found in a September 5, 2002 "limited official use" INS memo that was leaked to the public -- include unexplained trips to Iran, Iraq, Libya, Sudan, Syria, North Korea, Cuba, Saudi Arabia, Afghanistan, Yemen, Egypt, Somalia, Pakistan, Indonesia or Malaysia; travel not well explained; previous overstays of visas; and the visitor's behavior, demeanor or information s/he provides under questioning. "To date," says the INS, "individuals from well over 100 countries have been registered."
SERVING THE TARGETED
Local and national organizations are making efforts to fight NSEERS and its clearly discriminatory implementation. In mid-December, a class action lawsuit was filed by the American-Arab Anti-Discrimination Committee (ADC), the Alliance of Iranian Americans, the Council on American Islamic Relations and the National Council of Pakistani Americans seeking an injunction against arrests of persons registering without Federal warrants and an order preventing deportations without due process. On December 12, Senators Russell Feingold (D-WI) and Edward Kennedy (D-MA), along with Rep. John Conyers (D-MI), sent a letter to Ashcroft requesting suspension of the NSEERS process. The three congressmen demanded that the Department of Justice release information about what it was doing "to allow Congress and the American people to decide whether the Department has acted appropriately and consistent with the Constitution."
In the meantime, the American Immigration Law Association, National Immigration Forum, the American-Arab Anti-Discrimination Committee and the American Immigration Law Foundation have teamed up to develop a web-based special registration questionnaire to document people's experiences. Local organizations are handing out flyers asking people to call in with their experiences. The Iranian American Bar Association is asking everyone with firsthand knowledge of detentions and allegations of misconduct against Iranian nationals to call a toll-free number and share their information for an independent special report. The purpose of the report is "to ensure transparency and accountability in government" and to analyze whether the detentions or mistreatment by INS officials violated any laws. Some local branches of the Council for American Islamic Relations (CAIR) have assembled support teams to provide pre-registration check-in, so persons detained can be tracked, and offering free legal advice and refreshments. CAIR-New York, in coalition with other organizations, set up an Emergency Family Fund to assist families of "uncharged" detainees. Other local groups have trained human rights monitors to be positioned near INS offices.
PARALLEL LEGAL SYSTEMS
Efforts to serve the targeted communities are hampered by the fact that the INS has not been clear about who special registration affects or may affect in the future, nor about what people can expect upon registration. The INS rule that "citizens and nationals" of designated countries must register has confused many, including immigration lawyers. What is a citizen? A national? Does it vary by country? Whose rules apply? The INS definition of these terms produces little clarification. Does one ever cease to be a citizen of the place where one was born? Are West Bank Palestinians with Jordanian passports Jordanian citizens? (In general, no, according to Jordanian law.) Must people waiting for permanent residency register? (Yes.) Will an out-of-status person be jailed, deported, or released on bail? What amount of bail might one expect? Attorneys and immigration specialists have a difficult time advising people when there are so many unanswered questions. Across the country, considerable local efforts by Arab, Asian and Muslim organizations have been made to inform community members about the registration process and attempt to answer these questions. The problem is, no one can guarantee how anyone will be treated. Adding to the uncertainty is the March 1, 2003 splitting of the INS into the Directorate of Border and Transportation Security and the Bureau of Citizenship and Immigration Services, both within the Department of Homeland Security. The former is charged with responsibility for special registration. The attorney general's legal role in immigration matters is now unclear; immigration is now officially a national security matter. Meanwhile, instead of spending their time and resources on enhancing civic participation and community development, the Arab and Muslim American communities, yet again, must organize around self-defense. Welcome to America!
Despite the efforts of groups that are organizing to stop it or ameliorate its effects, NSEERS has forged ahead. The Justice Department says the program is a proven success in "apprehending persons" who would be a "severe risk to the American people." The data show that its major success has been to split up or deport tax-paying, law-abiding families. But since the special registration program is an executive branch creation, and not the result of a new law -- as is mistakenly assumed by many -- there may be little recourse. Special registration is another aspect of what columnist Nat Hentoff has called the "parallel legal system" advanced by the Bush administration, one in which "aliens" do not have the same rights as citizens, and even some citizens, like the two "enemy combatants" held incommunicado in military brigs, do not have the same rights as others. In the context of a period in which US-born Arabs and Muslims are visited and called in for fingerprinting by the FBI, and Peter Kirsanow of the US Civil Rights Commission and Rep. Howard Coble (R-NC) muse publicly about the revival of internment camps, immigrant rights advocates have to wonder what is next. The law allowing apprehension, restraint and removal of "alien enemies" -- dating back to the Alien and Sedition Acts of 1798 -- is still on the books.
Salon.com: The Secret Society - Under Ashcroft, America is Becoming an Orwellian State...
The secret society
Under Attorney General John Ashcroft, America is becoming an Orwellian state where people are locked up and no one can find out why -- least of all a compliant Congress.
By Tim Grieve
April 18, 2003
Mike Hawash was on his way home from his job at Intel in Portland, Ore., last month when FBI agents surrounded him in the company parking lot and took him into custody. At the same moment, agents armed with assault rifles were storming through Hawash's home, terrifying his wife and three small children waiting for their father to come home.
The agents took Hawash to a federal prison outside of Portland, where he has been held in solitary confinement for nearly a month. Hawash is a 38-year-old immigrant -- born on the West Bank and raised in Kuwait -- who has been a U.S. citizen for 15 years. He has not been charged with any crime, and there has not been any suggestion that he committed one. The Justice Department says Hawash is a witness, but it won't say to what. It won't say what information it wants from him, it won't say what agents were hoping to find when they searched his house, it won't say why he needs to be in custody, and it won't say how long it plans to keep him there.
These aren't the only things the Bush administration won't say. It won't say why it's holding individual detainees at Guantánamo Bay; it won't disclose the factual basis for its prosecution of Zacarias Moussaoui; and it won't say how many immigrants it has detained or deported in INS proceedings. It won't say how many of us are having our telephones tapped, our e-mail messages monitored or our library checkout records examined by federal agents. The administration's defenders say such secrecy is an unavoidable cost of the war on terror, but it's an orientation that predated Sept. 11 and that extends beyond the terror threat. The White House won't reveal who Vice President Dick Cheney consulted in concocting the administration's energy policy; it won't disclose what Miguel Estrada wrote while working for the solicitor general; it won't even release documents related to the pardons that former President Bill Clinton granted during his last days in office.
It won't disclose any of these things because it doesn't have to. In the war on terror -- and outside of it -- the Bush administration is finding increasing latitude to operate with secrecy as the norm, and accountability the exception. Congress has handed the administration broad new powers without requiring it to account for their use, while courts have repeatedly granted the government the right to operate outside the public view and -- at times -- without any possibility of judicial review.
And if Attorney General John Ashcroft and Utah Republican Sen. Orrin Hatch have their way, the situation may soon get much worse. Ashcroft's Justice Department is apparently eyeing legislation -- dubbed PATRIOT Act II -- that would further expand the administration's powers to act in unilateral silence. Meanwhile, Hatch is working to make PATRIOT Act I permanent now -- it is currently set to expire in 2005 -- before Congress can consider whether the Justice Department is making appropriate use of the broad surveillance powers provided by it.
Steven Aftergood, a researcher who monitors government secrecy issues for the Federation of American Scientists, calls Hatch's proposal a "direct assault" on Congress' ability to monitor the Justice Department. "If it goes through, we might as well go home," he told Salon. "The administration will have whatever authority it wants, and there won't be any separation of powers at all."
It is a dire prediction. But in some ways, it has already come true. Congressional aides complain that the Justice Department has denied Congress the information it needs to serve as a meaningful check on possible executive branch abuses, and the federal courts are increasingly refusing to involve themselves in cases in which the administration's policies -- on secrecy, on terror or on executive authority more generally -- have been questioned. As a result, the executive branch is increasingly free to act on its own, without the checks and balances typically imposed by a separated government. The White House denies that it is operating under any unnecessary cover of darkness. At a conference of newspaper editors earlier this month, Vice President Dick Cheney categorically rejected the perception that the administration has become a "foe of openness," and he said that the Pentagon's program of "embedding" reporters with troops in Iraq proves that the administration is committed "to the free flow of information about very important events."
But just as free-roaming reporters in Iraq have now begun to show that their embedded colleagues saw only the stories the Pentagon wanted them to see, there is increasing concern at home that the White House feels free to tell Congress, the courts and the public only as much as it cares to reveal. "On a lot of these kinds of questions, the responses are, 'We can't tell you,' or 'We're not going to tell you,' and on some it's, 'We don't keep that kind of information,'" said Lee Tien, a senior staff attorney for the Electronic Frontier Foundation. "That's what I find offensive. They say, 'We can't give you a full picture, but we can tell you that we thwarted a kidnapping or caught a child pornographer.' So they get to spin it, and you hear the stuff they'd like to tell you about, but you never hear anything about the rest."
Six weeks after Sept. 11, Congress enacted the USA-PATRIOT Act. Among other things, the act makes it possible for the FBI to obtain personal information about U.S. citizens -- logs of their Internet activities, the books they check out from the library, their bank transactions and their phone calls -- without any evidence that the subject of such information is involved in any way in any criminal activity. In some cases, the act allows the FBI to obtain such information based solely on its own decision to do so, without first seeking a warrant from a federal court. The PATRIOT Act also dramatically increases the circumstances under which federal law enforcement officers can conduct wiretaps and secret searches under the Foreign Intelligence Surveillance Act.
What the PATRIOT Act does not do is impose any requirement that the administration inform Congress -- or anyone else -- as to how these new powers are being used. In typical legislation involving criminal law, that might not have been a problem. As the EFF's Tien explained, law enforcement officers involved in criminal investigations have a strong incentive to police themselves when it comes to civil liberties: If they conduct searches or make arrests in violation of constitutional safeguards, the evidence they need for a conviction may not be admissible at trial. But in wide-ranging and open-ended anti-terror investigations, there frequently is no such check. If agents violate the privacy rights of a library patron or conduct unlawful surveillance of an innocent citizen, there may be no ramifications because there likely would be no trial in which such evidence would come to light -- and possibly be suppressed.
Thus, Tien said, abuses are more likely in such investigations. Yet Congress "didn't change the reporting requirements or enhance them in any way" when it adopted the USA-PATRIOT Act. "And then when members of Congress began to think, 'What do we know about what the White House or DOJ is doing?' they realized that they didn't know a whole hell of a lot."
So in 2002, Congress began to ask questions. But congressional aides say that the Justice Department has been so tight-lipped about its post-9/11 actions that Congress still lacks basic information about the use and usefulness of the PATRIOT Act powers. And without such information, they say, Congress can neither monitor the department effectively nor make intelligent decisions about whether the PATRIOT Act strikes an appropriate balance between preventing terrorist acts and protecting civil liberties.
An aide too one Democratic member of the Senate Judiciary Committee told Salon that the committee has had "extreme difficulty" in learning how the Justice Department is implementing the PATRIOT Act. Aides on the Republican side of the aisle tell a similar story. Ask them about the administration's responses to Judiciary Committee queries, and you'll hear words like "slow," "recalcitrant, and "a teeth-pulling exercise."
An aide to Iowa Republican Sen. Chuck Grassley said his boss is "frustrated" by the Justice Department's failure to cooperate more fully with the committee. "Sen. Grassley believes that senators, particularly senior senators on committees of jurisdiction, have a right to have reasonable questions answered," the aide said. "Now, sometimes people say, 'Tell me how many grains of sand are on a pyramid.' But 'How often have you used this new power? And what has been the result?' Those are legitimate questions that should be answered."
Some of them haven't been. For example, said Tien, the Justice Department has refused to say how many times it has demanded information from libraries about the books checked out by individual patrons. More generally, the Senate Judiciary Committee has asked the Justice Department numerous times for information about its practices under the PATRIOT Act and the Foreign Intelligence Surveillance Act. Some of those requests have not been answered at all, said the aide to a Democratic member of the committee, while others have been answered only incrementally.
"The curtain came down just after the work on the USA-PATRIOT Act," the aide said. "That's when the unilateralism started, both in the Justice Department and in the administration overall."
While some departments have been more responsive to congressional requests, Senate aides say that many have joined Justice in putting such inquiries on what one Republican Senate aide called "the slow boat to China." He said that administration officials seem surprised and resentful that they are expected to provide any information at all. "They probably figure, 'We've got both houses in our pocket and we don't have to get oversight stuck up our ass,'" he said. "They probably figured they could paint [Vermont Democratic Sen. Patrick] Leahy and [Democratic Rep. John] Conyers as partisan. But there are [Republican members of Congress] who ask questions and expect answers, too." One of those members is Rep. James Sensenbrenner, the Wisconsin Republican who chairs the House Judiciary Committee. Last summer, Sensenbrenner and Democratic Rep. John Conyers Jr. asked the Justice Department to provide the committee with basic statistical information about its use of its PATRIOT Act tools. The department stalled so long that Sensenbrenner eventually threatened to issue subpoenas and to vote against renewal of the PATRIOT Act when it expires in 2005 pursuant to the "sunset provision" written into the act. In an interview with editors of the Milwaukee Journal Sentinel, Sensenbrenner said he told Ashcroft: "If you want to play, 'I've got a secret,' good luck getting the PATRIOT Act extended. Because if you've got bipartisan anger in the Congress, the sunset will come and go and the PATRIOT Act disappears."
Shortly thereafter, the Justice Department provided answers to the committee's questions. In an interview with Salon last week, Sensenbrenner aide Jeff Lungren struck a conciliatory tone. Sensenbrenner and Ashcroft now meet for lunch on a regular basis, he said, and any problems they may have had were the result of the natural "tension" between an executive department and the congressional committee that oversees it.
Still, Lungren agreed that keeping the five-year sunset provision in the PATRIOT Act is "critical" to understanding how the act is being used and whether any "tweaks or changes" need to be made.
At the time of the PATRIOT Act's passage, many members of Congress said they wouldn't have voted for the act without the sunset provision. Leahy said at the time that the provision was key to ensuring oversight of the Justice Department. He reiterated that view in a written statement issued earlier this month, saying that Hatch's proposal to make the PATRIOT Act permanent now would rob Congress of what "little leverage" it has in obtaining information from the Justice Department and would "give up the ghost" on any further congressional oversight.
"Oversight is how we know how well or how poorly these and other laws work in practice, and the sunset conditions give Congress and the American people at least a little leverage in getting answers," Leahy said. "History shows that a government that doesn't want oversight often is a government that has something to hide."
Some in the civil liberties community see the oversight efforts being made by Leahy, Grassley and Sen. Arlen Specter, R-Penn., as a resurgence of congressional authority after a period of acquiescence to administration demands. They view the Hatch proposal as a check on that trend. "It's a frontal challenge," said the FAS's Aftergood. "It's a test of the backbone that we're beginning to see. And if it works, congressional oversight will be just a courtesy extended by the executive branch, with no rigor or mandatory character to it."
To be sure, the administration, at times with the help of compliant federal courts, has already undercut the ability of Congress -- and the public more generally -- to oversee the government's activities, both in the war on terror and otherwise.
In October 2001, Attorney General John Ashcroft changed the baseline government policy on Freedom of Information Act requests from one favoring disclosure to one favoring secrecy. Under Clinton Attorney General Janet Reno, federal agencies were to comply with Freedom of Information Act requests unless there was a real risk of "foreseeable harm" in doing so. But under the Ashcroft policy, agencies are to refuse to disclose information sought under FOIA if there is any "sound legal basis" for doing so.
In November 2001, President Bush signed an executive order granting himself the power to veto all requests to open the records of former presidents, even if a former president wants his records released. Under the Presidential Records Act -- like FOIA, passed in the wake of Watergate -- most records of a president are to be made available for public review 12 years after the president leaves office. Bush's executive order effectively gutted the Presidential Records Act and allowed him to deny public access to records from the Reagan administration -- including records related to his father's role as vice president.
Groups of historians and journalists have filed suit over the executive order in the U.S. District Court for the District of Columbia. The case is still pending. But if recent decisions from that court are any guide, the historians and journalists should not count on reviewing Reagan-era documents anytime soon.
Earlier this month, the District of Columbia court held that the Bush administration could refuse to release records related to President Clinton's last-minute pardons of Marc Rich and others based upon Bush's assertion of a "presidential communications privilege" over the records. While Bush likely had no interest in keeping Clinton's deliberation's secret, Bush's arguments before the court -- and the court's ultimate ruling in his favor -- pave the way for him to keep his own pardon deliberations secret.
And in December, the same court dismissed a lawsuit in which the General Accounting Office attempted to obtain the identities of energy industry officials and others with whom Vice President Cheney met in the course of developing the administration's energy policy.
In his talk with newspaper editors earlier this month, Cheney trumpeted the court's decision as a ruling that the administration had acted "in an appropriate way" in keeping the information secret. "That's a lie," said Tien of the EFF. Having held that the federal official who oversees the GAO lacks legal standing to bring such a lawsuit, the court had no occasion to opine about the administration's actions one way or the other.
And the legal disputes over Cheney's energy task force are far from over. On Thursday, two federal appellate judges lashed out at Justice Department lawyers trying to persuade the U.S. Court of Appeals for the District of Columbia Circuit to prevent Judicial Watch and the Sierra Club from reviewing some of the task force's records. But it's no surprise that the earlier decision in the GAO case stands out for Cheney. A decision that the administration was right would have been a good thing; a decision saying the courts have no business hearing such a challenge was even better.
The D.C. Circuit -- usually considered the "second-highest" court in the land -- handed the administration just such a victory in its war on terror earlier this year. In a decision that dumbfounded civil libertarians, the D.C. Circuit held that detainees in U.S. military custody at Guantánamo Bay have no right to challenge their confinement in U.S. courts. So long as the detainees are non-citizens who were captured outside the United States during some sort of military operation and are now being held outside the United States, the courts of the United States "are not open to them."
If the decision stands, the administration will be free to do whatever it likes with the detainees -- without any fear that a court is going to stand in the way or cause it any problems later. Thus, the detainees' only hope is that the executive branch that holds them decides to treat them justly. There is no other check, no other balance.
The detainees' case is one of several from the war on terror that may be decided by the Supreme Court in the coming year or so. In another, the ACLU, on behalf of a group of New Jersey newspapers, is challenging the Justice Department's decision to close all immigration proceedings deemed by the Justice Department to be "of interest" to its terrorism investigations. One court of appeal has upheld the practice; another has condemned it. Given the split among the lower courts, it is likely the Supreme Court will agree to take the case and decide the issue.
But like other federal courts, the Supreme Court is likely to grant the administration substantial leeway in prosecuting the war on terror as it sees fit. In fact, the Supreme Court has already begun to do so. Last month, the court refused to hear the ACLU's challenge to the Justice Department's practices under the Foreign Intelligence Surveillance Act -- in particular, its failure to maintain a "wall" between domestic police activities and spying activities under FISA.
In his 1998 book on civil liberties during wartime, "All the Laws But One," Chief Justice William Rehnquist observed that courts typically defer to the executive branch during wartime but then pull in the reins as the immediacy of war subsides. It is not clear how that tendency may play out in the potentially unending war on terror. But even if it does -- that is, even if the courts begin to demand accountability from the executive branch -- the Bush administration still has a trump card: It can take its business elsewhere.
The trial judge presiding over the case of Zacarias Moussaoui -- the only person charged in the United States so far in connection with the Sept. 11 attacks -- has raised questions about whether Moussaoui can be tried in the shroud of secrecy the Justice Department has wrapped around the case. She has also held that Moussaoui's lawyers are entitled to interview a high-ranking al-Qaida official currently in U.S. custody, an interview the Justice Department vigorously opposes.
The Justice Department has insisted that Moussaoui can be tried fairly while preserving government secrets, and it has challenged the ruling on the al-Qaida interview in an appeal now pending before the notoriously conservative U.S. Court of Appeals for the Fourth Circuit. But if the trial judge ultimately rules that the Justice Department has to give up some of its secrets to try Moussaoui -- or if the Fourth Circuit agrees that the al-Qaida interview must go forward -- there are signs that the Justice Department will simply dismiss the case and file new charges against Moussaoui before a military tribunal.
President Bush issued an executive order in November 2001 establishing such tribunals. In trials before them, he said, the rights guaranteed to defendants in regular criminal trials -- rights set forth in the Constitution, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence -- are "not practicable" and therefore do not apply. If the administration chooses to try Moussaoui before such a tribunal, the judicial branch of government will have been removed from the equation altogether.
With the Domestic Security Act of 2003 -- the draft legislation dubbed "PATRIOT Act II" -- the administration is apparently contemplating other ways in which it might avoid the inconvenience of operating in the public eye or answering to the federal courts.
The draft legislation, prepared by the Justice Department but not yet proposed to Congress, includes provisions that would allow federal agents to keep secret the names of individuals arrested in investigations related to "international terrorism"; expand the circumstances under which agents could conduct searches and wiretaps without warrants; and allow the attorney general to deport resident aliens in certain circumstances without any possibility of judicial review.
With trials before military tribunals and legislation like PATRIOT Act II on the horizon, it may be that Mike Hawash should be considered lucky. Having worked for years in the computer industry, he has friends who have launched a Web site to draw attention to his plight. He has a lawyer, he has the backing of the ACLU, and he has the attention of at least one U.S. senator. Still, he has the Bush administration's Justice Department aligned against him, and that cannot be a comfortable place to be.
"Since Sept. 11, the Justice Department has shown a contempt for due process," said David Fidanque, the executive director of the ACLU in Oregon, which is watching Hawash's case closely. "Secrecy is paramount to them, and the Constitution is an obstacle to overcome."
Last week, the court in Hawash's case held that the Justice Department can keep him in custody at least until the end of the month so that it will have time to take his deposition or have him testify before a grand jury. While portions of the court's decision were made public, the reasons for the Justice Department's interest in him -- and the purported factual basis for keeping him in custody -- were not.
