April 2004

Lies, Lies, and More Lies

Filed under: Imported

Keeping up with the lies of the Bush Administration (something that  Steve Perry has been doing at Bush Wars) would be a full-time job. In order to maintain my sanity, I focus only on lies about civil liberties. Until recently, Attorney General John Ashcroft has been the Fraudmeister. But fueled by the 9-11 Commission hearings (the panel Bush did not want to begin with) and the steady stream of Administration talking heads who tout the Patriot Act as the compilation of laws that will save us from "terrorism," Bush's handlers have come to the recognition that touting the Patriot Act is a mighty fine reelection campaign tool. After all, it is aptly named so that if you are not for it, you are un-"Patriot"-ic. 

Last week, Bush made two speeches about the Patriot Act, one in New York City, one in Buffalo. The Buffalo speech focused on how the Lackawanna Six, young American citizens of Yemeni descent who never engaged in one act of terrorism but made the dumb mistake of going to Afghanistan (and returning) to study Islam before September 11, are serving long prison terms because of the Patriot Act and the prosecutors who used it to nab the bad guys before they could hurt us. Nothing could be further from the truth. The Patriot Act itself cannot be tied to any terrorism "convictions" (mostly guilty pleas) other than the fact that it defines "terrorism" so broadly that my writing this article equals a terrorist act. Ergo, traveling to a "terrorist" country before September 11 makes you a terrorist.

The ACLU has saved me the trouble of cataloguing and contradicting Bush's lies about the Patriot Act:

The President: 

"By the way, the reason I bring up the Patriot Act, it's set to expire next year. I'm starting a campaign to make it clear to members of Congress that it shouldn't expire. It shouldn't expire for the security of our country."

The Truth: 

Less that 10 percent of the Patriot Act expires; most of the law is permanent and those portions that do sunset will not do so until December 31, 2005.

The President: 

"And that changed, the law changed on- roving wiretaps were available for chasing down drug lords. They weren't available for chasing down terrorists, see?"

The Truth: 

Roving wiretaps were available prior to 9/11 against drug lords and terrorists. Prior to the law, the FBI could get a roving wiretap against both when it had probable cause of crime for a wiretap eligible offense. What the Patriot Act did is make roving wiretaps available in intelligence investigations supervised by the secret intelligence court without the judicial safeguards of the criminal wiretap statute.

The President: 

"... see, I'm not a lawyer, so it's kind of hard for me to kind of get bogged down in the law. (Applause). I'm not going to play like one, either. (Laughter.) The way I viewed it, if I can just put it in simple terms, is that one part of the FBI couldn't tell the other part of the FBI vital information because of the law. And the CIA and the FBI couldn't talk."

The Truth: 

The CIA and the FBI could talk and did. As Janet Reno wrote in prepared testimony before the 9/11 commission, "There are simply no walls or restrictions on sharing the vast majority of counterterrorism information. There are no legal restrictions at all on the ability of the members of the intelligence community to share intelligence information with each other. 

"With respect to sharing between intelligence investigators and criminal investigators, information learned as a result of a physical surveillance or from a confidential informant can be legally shared without restriction. 

"While there were restrictions placed on information gathered by criminal investigators as a result of grand jury investigations or Title III wire taps, in practice they did not prove to be a serious impediment since there was very little significant information that could not be shared."

The President: 

"Thirdly, to give you an example of what we're talking about, there's something called delayed-notification search warrants. ... We couldn't use these against terrorists [before the Patriot Act], but we could use against gangs."

The Truth: 

Delayed-notification - or so-called sneak-and-peek search warrants - were never limited to gangs. The circuit courts that had authorized them in limited circumstances prior to the Patriot Act did not limit the warrants to the investigation of gangs. In fact, terrorism or espionage investigators did not necessarily have to go through the criminal courts for a covert search - they could do so with even fewer safeguards against abuse by going to a top secret foreign intelligence court in Washington. 

For criminal sneak-and-peek warrants, the Patriot Act added a catch-all argument for prosecutors - if notice would delay prosecution or jeopardize an investigation - which makes these secret search warrants much easier to obtain.

The president's sneak-and-peek misstatement clearly demonstrates that the Patriot Act is not limited to terrorism. In fact, many of the law's expanded authorities can clearly be used outside the war on terrorism.

The President: 

"Judges need greater authority to deny bail to terrorists."

The Truth: 

The new presumptive detention that the president is proposing takes judicial authority away from the bail process. The presumption would take away the prosecution's burden of showing that the accused is a danger or flight risk and instead puts it on the accused.

Pending Legislation to "Enhance" the Patriot Act

President Bush is setting the stage for a fight that will ensue next year, as several controversial provisions of the Patriot Act that impinge most on American's civil liberties are set to expire. He wants to convince the public that spying on citizens is the way to stop terrorism. If Congress does what it did in 2001, it will once again sell our liberties down the river--this time for good.

In addition, new legislation is pending to create more crimes of "terror," many of them carrying the death penalty.

Following on the heels of President Bush's road trip to promote the controversial Patriot Act at events in Pennsylvania and New York, on April 21, 2004 a key House subcommittee considered a proposal to expand the Patriot Act's controversial definition of "terrorism" to provide a death penalty for any federal crime punishable by more than one year in prison if the crime was intended to influence government policy and results in death.

"The Patriot Act remains one of the most controversial measures ever passed by Congress," said Timothy Edgar, an ACLU Legislative Counsel. "Attempts to expand it, such as the now-defunct draft Patriot Act 2 that floated around Congress last year, have been highly contentious. Now we're seeing attempts to pass provisions of Patriot Act 2 piece-by-piece."

Federal law already provides 20 separate death penalties for serious terrorism crimes, including bombings, hijackings, assassinations and hostage taking.

Testifying at the April 21 hearing before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, Edgar reminded committee members that the Justice Department has not been forthcoming in its disclosures regarding how the Patriot Act has been used so far, saying Congress should review existing powers before adding to them.

"This proposal will rightly be seen as another federal infringement on civil liberties that will not make America safer," Edgar added. "It will result in increasing mistrust, both at home and abroad, even of legitimate anti-terrorism efforts and further isolate America in the world. It should be rejected."

The proposed legislation would do two things. First, it would make 23 crimes eligible for the death penalty. Second, it would create an unprecedented "catch-all" death penalty for any other federal crime punishable by more than a year in prison if it meets the PATRIOT Act's overbroad definition of terrorism and results in death. The ACLU said that protestors and activists from groups including Greenpeace and Operation Rescue could risk being sentenced to death for participating in certain civil disobedience events if they involved a federal crime punishable by more than a year in prison and resulted in a death of one of the participants or someone else.

Laws such as the Freedom of Access to Clinic Entrances (FACE) Act and the federal gun control regime at 18 U.S.C. § 922, among many other crimes, could carry death sentences if the bill passed, Edgar said.

The ACLU also noted that the proposal could actually hurt the anti-terror efforts. Many nations that have abolished the death penalty are unwilling to extradite or provide evidence in federal terrorism cases if the death penalty might result from their cooperation. Suicidal, politically motivated terrorists such as members of Al Qaeda would be unaffected as often they are seeking to create martyrs for their causes and to generate publicity.

Read the ACLU's testimony on HR 2934, the "Terrorist Penalties Enhancement Act of 2003."

Don't be caught sleeping (let Congress do that).  Visit the ACLU website often and send email and faxes (crimes of terror, of course, since designed to influence politics and too many faxes and emails might jam your congressman's critical infrastructure--and I am only half-kidding) to your elected representatives. Not that they will listen, but at least you can tell your children that stood up for liberty.

Posted by Elaine Cassel at April 25, 2004 4:32 PM

Broken Wings: The Indignities of Being on the No-Fly List by Jesselyn Radack

Filed under: Imported

Last October, when I flew to a family function in New Mexico, I was pulled aside for a more extensive search than the usual stroll through the metal detector. I didn't think twice about it. I remembered Israeli security forces arresting a young Palestinian woman who was planning to disguise herself as a pregnant woman, with a bomb hidden in her falsely extended belly. It made sense that my being seven months pregnant raised suspicions.

This March, I flew to Georgia for my grandfather's funeral. On the way down, I was singled out for a full-body pat-down search and told that I had been "randomly selected." The screener asked me if I was wearing an underwire bra. I said yes. She said she would be feeling it with the back of her hand for verification. I asked her to please not press too hard because I was breastfeeding and it would trigger my let-down reflex

Meanwhile, my fashionable Medela "Pump In Style" was being sent back and forth through the x-ray machine.

"It's a breastpump," I explained. Attorney General Ashcroft, who ordered the Justice Department to cover the semi-nude statue of the lady Spirit of Justice, may have a problem with the female breast, but surely baggage screeners, many of them women, would be more enlightened.

When I later opened the luggage I had checked, the lock had been broken off and there was a notecard from the Transportation Security Administration (TSA) explaining that my suitcase had been hand-searched. A plastic blue "lock" had then been placed on the suitcase as a "courtesy." It seemed invasive, but hey, it was for security's sake.

During the return flight, I was again told that I'd been "randomly selected" for a more elaborate search. "Randomness" was becoming pretty predictable. Randomness, in the true sense of the word, has no specific pattern or objective. Randomness is a phenomenon that does not produce the same outcome or consequences every time it occurs under identical circumstances. Randomness is unsystematic.

Before my next flight less than a week later, I became aware that the airlines administered a "no-fly" list designed to keep terrorism suspects off commercial airlines, which subjected scores of innocent passengers to repeated interrogation, detention and stigmatization. The "no-fly" list is one of two the TSA maintains. The other is the "selectee" list. Those on the "no-fly" list are not allowed to board a commercial aircraft. Those on the "selectee" list must go through more extensive screening before boarding.

When I went through security for my upcoming flight to California, I was again pulled aside for a full-body wand search. With respect to my carry-on bag, they wanted to know why I had a breastpump but no milk and no baby. I explained that was precisely the point: I couldn't bring my infant on the trip, so I was going to collect and store milk for her during my travels. On the way back, the screeners looked at my boarding pass and again singled me out for the dubious distinction of special search.

I specifically asked the screener if I was on the "no-fly" or "selectee" list. She didn't disabuse me of that notion; instead, she just told me she did not know. I had two full baby bottles of breastmilk in the refrigeration compartment of my breastpump. A male screener asked me if I would be willing to take a sip from each.

"Are you serious?" I asked.

I requested to see a copy of the written policy in which passengers are asked to personally sample liquids they take through security. I figured that if there was a policy governing suspect liquids, the screeners would be specially equipped with sterile droppers from which they could take a sample of my breastmilk to make sure it wasn't an organic peroxide, which is a low-power explosive with unusual stability problems. But this screener was obviously not really concerned that my milk was, for example, perchloric acid, an odorless water white liquid that can be dangerously reactive. If he harbored such a concern, he would not have asked me to open the bottle because it would have blown a hole in the building.

There was no scientific basis for the drink-your-own-breastmilk test. Passengers take through security everything from beverages to hand lotion to nasal spray. Knowing there was no lactation policy, I further objected because drinking from the sterile baby bottles would contaminate the milk, the milk was for the baby, I'm lactose intolerant, and it formed, overall, a barbaric request.

At that point, the screener's supervisor said he would check it in a different way, which he did by rubbing a white cloth all over the bottles and the breastpump. I can only surmise that the cloth was meant to pick up traces of chemicals or hazardous material, which of course it did not. I was finally allowed to board.

I'm on the "selectee" list. Of course, I have no way of verifying that for certain, or of getting my name removed. One might think that I'm being overly-paranoid, but not when I explain that I am a former Department of Justice attorney and a whistleblower in the case of the so-called "American Taliban," John Walker Lindh. Because I blew the whistle on misconduct by the Justice Department's ethics office, I have been retaliated against for the past two years.

The Justice Department got me fired from my private law firm, conducted a criminal investigation that has since been closed with no charges ever being brought, and most recently, reported me to the state bars in which I am licensed. The "selectee" list is just the latest in a series of examples in which I have been designated as a suspect without any sort of due process. It is more than an inconvenience. It is political punishment.

Getting stopped twice in less than we week for the extended dance version of the security search seems not like a way to stop passengers who pose a security risk, but more like a way to detain, interrogate, delay, embarrass, and humiliate perceived political enemies. That's what happens when the Bush administration labels dissenters as unpatriotic.

Unnamed government officials have called me a "traitor" and a "turncoat" in The New York Times. They fail to realize that it makes us all less safe to waste so much time and so limited resources on vengeful partisan practices rather than going after people with real terrorist ties.

Jesselyn is a former Department of Justice employee and mother of three young children. She lives in Washington, D.C.

Posted by Elaine Cassel at April 15, 2004 6:49 AM

No More First Amendment

Filed under: Imported

Stifling speech and worship in the name of fighting a war on "terrorism" is becoming common place in the U.S. Last week, U.S. Marshals "guarding" Supreme Court Justice Antonin Scalia ordered reporters who recorded his speeches before two religious schools in Mississippi to erase their tapes. Ironic in that the man who fancies himself the sole authority on the Constitution would believe that reporters should not be able to talk about what he says (it was amazing that they got in at all, as Scalia typically bans all media from his public appearances). Imagine if there had been no free speech in the founding days of the Republic. 

It is striking that the reporters willingly handed over their tapes. Why didn't they refuse and make the marshals get search warrants? Doubtless, such a warrant would have not been issued since the reporters were not committing a crime. Even under the Alice-in-Wonderland laws targeting thought today (think an anti-Bush thought, go directly to jail), the journalists would have been on solid footing in refusing to hand over their work-product.

According to Washington Post reporters Jerry Markon and Timothy Dwyer, in a story published March 26, 2004, a federal judge in Cleveland, Ohio denied the request of Fawaz Damra, a Muslim imam charged with a minor visa violation (but under orders not to leave the jurisdiction of the court), to travel to Virginia for a meeting in Springfield, Virginia sponsored by the United Association for Studies and Research Inc., or UASR.

He and his colleagues might be plotting terrorism, says the government. After all, they are Muslims, you know. And to be a Muslim in American today is to be a terrorist--or a terrorist "sympathizer."

The group says it is a Muslim American think tank, but federal prosecutors and congressional investigators have linked it to terrorist groups, primarily the Islamic Resistance Movement, or Hamas. Hamas has been designated a terrorist organization by the U.S. government.

Anisa Abd el Fattah, director of public affairs for UASR, said the organization is not tied to Hamas or any other terrorist group. She said last night's meeting at the UASR offices was the first in a series that would lead to "a structure for what we hope is going to be Muslim-Jewish dialogue between Muslim and Jewish leaders in the United States."

Damra, the imam of the Islamic Center of Cleveland, also known as the "grand mosque," was indicted by a federal grand jury in December on one count of naturalization fraud. A trial date has not been set.

Prosecutors allege that Damra did not disclose his ties to Islamic Jihad, which has claimed responsibility for bombings and other terrorist acts in Israel. Law enforcement sources said Damra was formerly the head of al-Farooq mosque in Brooklyn, N.Y., whose adherents include men convicted in the first bombing of the World Trade Center in 1993 and Omar Abdel Rahman, the "blind sheik" who was convicted along with nine others in a plot to blow up Manhattan landmarks including the United Nations.

In response to Damra's travel request, Gregory A. White, the U.S. attorney in Cleveland, filed a memo saying he "strongly opposes" granting it because UASR "has demonstrated its sympathies for Hamas." He added that several "key associates" of the Springfield group "are, or have been, integrally involved in Hamas activities."

UASR is also one of the dozens of Muslim charities and foundations for which Senate Finance Committee investigators are seeking tax and financial records. The records were requested as part of a widening probe into alleged ties between tax-exempt organizations and terrorist groups, according to documents and federal officials.

Federal prosecutors in Alexandria have tried, without success, to indict the charities and their leaders for aiding and abetting terrorism. When that failed (hard to do in Alexandria, where writing this article is likely tantamount to terrorism), prosecutors appealed to the Senate to open up a tax probe into the organizations, a procedure that exposes all of the charties' contributors to IRS investigations and possible prosecution.

Posted by Elaine Cassel at April 12, 2004 7:16 AM

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