Blogging for Freedom

December 2005 

"Hello. My name is Janice Porter and I’d like to thank you for inviting me to speak today. My subject is “The USA Patriot Act - Some of the Things It Does – Some of the Things It Doesn’t - and It’s Impact On Us.”

Certainly, this is one of those subjects that can be discussed at length because of the breadth and depth of it’s provisions. However, with our time limited, I’d like to focus on the more controversial sections such as intelligence gathering and financial disclosure laws contained within it. Those sections, in particular, that have the most impact and effect on American citizens and their Constitutional civil rights.

 With a degree in political science from the University of California I have come to appreciate the importance of community action and involvement such as these meetings you all hold every week.

It is really my father, however, that I hold up as a model. All my life I listened to him and as I got older argued with him about politics, current events, the Viet Nam War… He’s passed now but I can describe him as a proud marine, a loyal Republican and a true believer in the United States of America. The Constitution was framed and hung on our living wall. The Bill of Rights was sacred. These are things I learned from my father. And it is through him now that I view the world. I am always asking “What would Dad think?” What would my father think of September 11. What would he think of the Patriot Act.

It is, thus, through him that I speak today.

The Patriot Act was passed on October 26, 2001 just weeks after the terrorist attacks of 9-11. It’s formal name is the UNITING AND STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA PATRIOT ACT) ACT OF 2001.

It’s stated purpose is “To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.” The legislation originated with Attorney General John Ashcroft, who asked Congress for additional powers that he claimed were needed to fight terrorism in the wake of the events of September 11, 2001. Few amendments were made to Ashcroft’s initial proposal to Congress, and the bill became law without any hearings or markup by a Congressional committee.

It is a 132 page document broken into ten Titles. They are

TITLE I—ENHANCING DOMESTIC SECURITY AGAINST TERRORISM

TITLE II—ENHANCED SURVEILLANCE PROCEDURES

TITLE III—INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTITERRORIST

FINANCING ACT OF 2001

TITLE IV—PROTECTING THE BORDER

TITLE V—REMOVING OBSTACLES TO INVESTIGATING TERRORISM

TITLE VI—PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY

OFFICERS, AND THEIR FAMILIES

TITLE VII—INCREASED INFORMATION SHARING FOR CRITICAL

INFRASTRUCTURE PROTECTION

TITLE VIII—STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM

TITLE IX—IMPROVED INTELLIGENCE

TITLE X—MISCELLANEOUS

Within the thousands of sections and subsections what emerges is a hodgepodge of provisions and resolutions that try to address the War on Terror. The Patriot Act amended over 15 federal statutes, including the laws governing criminal procedure, computer fraud and abuse, foreign intelligence, wiretapping, immigration, and the laws governing the privacy of student records. These amendments expanded the authority of the Federal Bureau of Investigation and law enforcement to gain access to business records, medical records, educational records and library records, including stored electronic data and communications. It also expanded the laws governing wiretaps and “trap and trace” phone devices to Internet and electronic communications.

On the surface, many of the provisions refer only to foreign citizens and foreign conspirators, etc. however, the boundaries blur when it comes to the vague definitions of “domestic terrorists”.

These are the provisions that are most controversial with regard to the constitutional civil rights of ordinary Americans. They have the potential for the FBI to cast a wide net when one considers the “possible potential targets” for investigation. Called the “Predicate Offense List” it includes just about every criminal activity from terrorism to obscenity to gambling to growing marijuana to dealing in car parts to malicious mischief. And everything in between.

It is here that the boundaries blur again because this means that the Patriot Act and it’s provisions to fight terrorists and terrorism can too easily be used investigating non-terrorism related legal activities, like protest marches and civil disobedience. For example, during the 1960’s and 70’s when peace protestors and anti-war activists were investigated by the FBI for “UnAmerican Activities” it became obvious only later how far the government really went in gathering personal information and surveillance on law-abiding Americans they deemed a threat.

Secrecy, and understandably so, has always been a hallmark of national security. What we saw decades ago during the Viet Nam War we are seeing again in the War on Terror. It appears that we are willing to give up a certain amount of privacy and relinquish some constitutional rights in order to win the war and protect our nation. But, how much are we willing to sacrifice and how will we know when it’s too much.

At this point I could start throwing out some figures and statistics about the lawful and un-lawful application of the powers of the Patriot Act. Unfortunately, gathering accurate information is difficult because of the very nature of this beast.

Rep. John Conyers, Jr., Ranking Member, House Judiciary Committee on July 29th, 2005, says:

While the PATRIOT Act may not deserve all or even most of the ridicule that is heaped against it, there is little doubt that the legislation has been repeatedly and seriously misused by the Justice Department. Consider the following:

* Its been used more than 150 times to secretly search an individual’s home, with nearly 90% of those cases having had nothing to do with terrorism.

* It was used against Brandon Mayfield, an innocent Muslim American, to tap his phones, seize his property, copy his computer, spy on his children, and take his DNA, all without his knowledge.

* Its been used to deny, on account of his political beliefs, the admission to the United States of a Swiss citizen and prominent Muslim Scholar to teach at Notre Dame University.

* Its been used to unconstitutionally coerce an Internet Service Provider to divulge information about email activity and web surfing on its system, and than to gag that Provider from even disclosing the abuse to the public.

* Because of gag restrictions, we will never know how many times its been used to obtain reading records from library and book stores, but we do know that libraries have been solicited by the Department of Justice - voluntarily or under threat of the PATRIOT Act - for reader information on more than 200 occasions since September 11.

* Its been used to charge, detain and prosecute a Muslim student in Idaho for posting Internet website links to objectionable materials, even though the same links were available on the U.S. government’s web site.

Under the PATRIOT Act our government has detained thousands of immigrants without time limit, for unknown and unspecified reasons, and targeted tens of thousands of Arab-Americans for intensive interrogations and immigration screenings.

A few real life experiences ….

Becky Foster, a court clerk who lives in a gated community on the outskirts of Las Vegas, is president of her homeowners association.

When the association recently changed banks and tried to open a new account, board members received notice from the bank that under the Patriot Act, the "law requires banks to check all signers on all accounts to determine if there are any terrorist links."

"In order to comply, we are required to obtain Social Security numbers, driver license numbers and date of birth from each signer, to check them against the government's terrorist list," the Community Association Banc wrote.

"When they sent us the letter, we just all kind of looked at each other," Foster said, standing outside her split-level suburban home near Nellis Air Force Base. "We didn't take a vote on it, we just said we're not going to do it. They simply ignored the bank's request, began writing checks on their account and never heard anything about the matter again. Yet.

And here’s a brief snippet of how the hotel and airline industries have been affected by new disclosure laws mandated under the Patriot Act. Chris Zoladz, vice president for information protection at Marriott International, says "Things in general for Marriott have changed very significantly" since the Sept. 11 attacks.

"The Patriot Act, in addition to the many provisions that it contains, basically turned Marriott into a financial institution," he said. "We are now considered a money service business because we cash checks and we do currency exchange."

As a result, he said, Marriott now reports "suspicious" transactions to the government.

But the definition of "what suspicious is isn't so terribly clear," he said.

Zoladz also complained that the company still has difficulty understanding how to follow all aspects of the Patriot Act and related federal policy changes. How far are they supposed to go?

"Someone walks in off the street, goes to the lounge and orders a cocktail," he asks. "Are we supposed to ask them who they are and then go to Treasury's Web site and do a name search and see what happens?"

How much is too much? And how much is clearly not enough. What doesn’t the Patriot Act do?

Let’s look at Title IV – Protecting The Border

Subtitle A--Protecting the Northern Border

Sec. 401. Ensuring adequate personnel on the northern border.

Sec. 402. Northern border personnel.

Sec. 403. Access by the Department of State and the INS to certain identifying information in the criminal history records of visa applicants and applicants for admission to the United States.

Sec. 404. Limited authority to pay overtime.

Sec. 405. Report on the integrated automated fingerprint identification system for ports of entry and overseas consular posts.

Before September 11th 2001, the U.S. government had a only 350 Border Patrol agents along the entire Canadian border. We now have in approximately 1,000 agents along the 4,000 mile long U.S. / Canadian border that has been described as the longest undefended border in the world.

Entry level wage for a border patrol agent is $24,000 a year. And Section 404 of the Patriot Act expressly prohibits paying overtime “‘‘Provided, That none of the funds available to the Immigration and Naturalization Service shall be available to pay any employee overtime pay in an amount in excess of $30,000 during the calendar year beginning January1, 2001’’.

More than 9500 agents patrol our southern border. Together they guard the 6,000 miles of our border with one tenth as many people as are in the New York City police department.

But, the Patriot Act doesn’t even mention our southern border – even though, according to government sources, nearly 99.6% of all people arrested entering our country illegally do so through Mexico and our southern border states. Securing our borders seems to be a natural step toward national security and it is interesting - to say the least – that the Patriot Act puts such a low priority on closing our borders.

In conclusion, what we don’t know about the Patriot Act, and how it’s rather vague, open-ended provisions will be interpreted and implemented, will surely impact us in ways we may not expect. Certainly there are a lot of questions we must ask ourselves. We didn’t take the national time to look at how much privacy in our daily lives are we willing to give up in this “War on Terrorism”? Which civil rights will we willingly suspend in order to let the government root out the possible “terrorists” among us? And, finally, how much responsibility do we have as American citizens to defend the Constitution and the Bill of Rights against our own government if it continues to expand its powers through caveat and legislation?

The tragic events of September 11, 2001 begat the Patriot Act but a dictatorship claimed even in the crisis of war is still a dictatorship.

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Janice Porter, December 2005

This is a speech I prepared for an address at the Pachyderm Club breakfast meeting in Idaho.  Now these are conservative Republicans.  They asked me to speak! Go figure. Unfortunately, on my drive I skidded off the freeway and blew a tire.  I missed the meeting.