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------- Forwarded message follows ------- Date sent: Tue, 20 Nov 2001 11:49:43 -0500 To: politech@politechbot.com From: Declan McCullagh <declan@well.com> Subject: FC: USA PATRIOT update: "Moving toward a police state," by M.Ratner Send reply to: declan@well.com
Text of law: http://www.politechbot.com/docs/usa.act.final.102401.html
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Date: Tue, 20 Nov 2001 08:19:36 -0800 From: "Jeffrey St. Clair" <sitka@home.com> To: Declan McCullagh <declan@well.com> Subject: Ratner On Civil Liberties
Declan--
Thought your readers might be interested in human rights lawyer Michael Ratner's analysis of the USA Patriot Act and other recent incursions into the Bill of Rights.
http://www.counterpunch.org/ratner5.html
Best, Jeff St. Clair CounterPunch
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http://www.boston.com/dailyglobe2/322/business/Patriot_Act_would_make_ watchdogs_of_firms+.shtml
Patriot Act would make watchdogs of firms
By Scott Bernard Nelson, Globe Staff, 11/18/2001
Ordinary businesses, from bicycle shops to bookstores to bowling alleys, are being pressed into service on the home front in the war on Under the USA Patriot Act, signed into law by President Bush late last month, they soon will be required to monitor their customers and report ''suspicious transactions'' to the Treasury Department - though most businesses may not be aware of this.
Buried in the more than 300 pages of the new law is a provision that ''any person engaged in a trade or business'' has to file a government report if a customer spends $10,000 or more in cash. The threshold is cumulative and applies to multiple purchases if they're somehow related - three $4,000 pieces of furniture, for example, might trigger a filing.
Until now, only banks, thrifts, and credit unions have been required to report cash transactions to the Treasury Department's Financial Crimes Enforcement Network, under the Bank Secrecy Act of 1970. A handful of other businesses, including car dealers and pawnbrokers, have to file similar reports with the Internal Revenue Service.
''This is a big deal, and a big change, for the vast majority of American businesses,'' said Joe Rubin, chief lobbyist for the US Chamber of Commerce. ''But I don't think anybody realizes it's happened.''
The impact is less clear for consumers, although privacy advocates are uncomfortable with the thought of a massive database that could bring government scrutiny on innocent people. Immigrants and the working poor are the most likely to find themselves in the database, since they tend to use the traditional banking system the least.
[...]
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http://www.washingtonpost.com/wp-dyn/articles/A55391-2001Nov19.html
By Dana Milbank Washington Post Staff Writer Tuesday, November 20, 2001; Page A01
The Sept. 11 terrorist attacks and the war in Afghanistan have dramatically accelerated a push by the Bush administration to strengthen presidential powers, giving President Bush a dominance over American government exceeding that of other post-Watergate presidents and rivaling even Franklin D. Roosevelt's command.
On a wide variety of fronts, the administration has moved to seize power that it has shared with other branches of government. In foreign policy, Bush announced vast cuts in the U.S. nuclear arsenal but resisted putting the cuts in a treaty -- thereby averting a Senate ratification vote. In domestic policy, the administration proposed reorganizing the Immigration and Naturalization Service without the congressional action lawmakers sought. And in legal policy, the administration seized the judiciary's power as Bush signed an order allowing terrorists to be tried in military tribunals.
Those actions, all taken last week, build on earlier Bush efforts to augment White House power, including initiatives to limit intelligence briefings to members of Congress, take new spending authority from the legislature, and expand the executive branch's power to monitor and detain those it suspects of terrorism.
Presidential power ebbs and flows historically and, by necessity, typically heightens during times of war because of the need for a unifying figure in government. Lyndon B. Johnson gained clout under the Tonkin Gulf resolution, as did Roosevelt during World War II. The War Powers Act and other reforms by Congress to limit presidential power after Watergate made for weaker executives, as did the reduced threat from the Soviet Union.
Now, in the views of many scholars, Bush has restored the "Imperial Presidency," a term Arthur Schlesinger Jr. used to describe Richard M. Nixon's administration in 1973.
[...]
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Date: Mon, 19 Nov 2001 18:22:50 -0600 From: Jon Roland <jon.roland@constitution.org> Subject: 2001 Patriot Act echoes 1798 Alien Act
2001 Patriot Act echoes 1798 Alien Act
The controversy arising from the hastily-passed "USA Patriot" Act and associated presidential executive orders strongly resembles that which arose from the 1798 Alien and Sedition Acts, especially the Alien Act of June 25, 1798,[1] which tried to grant to the president, then John Adams, the authority to order foreign nationals he deemed "dangerous" to depart, to imprison them if they did not, to forcibly deport them, to imprison them if they returned, and to disable their rights to become citizens. The Act was targeted on French nationals, because France was attacking U.S. shipping, and Irish nationals, because the Irish were engaged in a fight for independence from Britain. The Act was, however, used to persecute many would-be citizens who criticized the Adams administration, as was the Sedition Act,[2] which was used to persecute the editors and publishers of opposition newspapers such as the Philadelphia Aurora. The acts encouraged a reign of terror against critics, including Thomas Jefferson and James Madison, who responded with such measures as the Kentucky[3] and Virginia[4] Resolutions of 1798, the Kentucky Resolutions of 1799,[5] and the Virginia Report of 1799,[6] which defined the "Doctrine of '98" and led to the defeat of John Adams and election of Thomas Jefferson in 1800, in what became called the "Revolution of 1800", and many considered that to settle the issue that the Alien and Sedition Acts were unconstitutional.[7]
But a Sedition Act was again adopted May 16, 1918, during WWI,[8] making it a crime to criticize the government or Constitution of the United States. During the Red Scare of 1919-20 U.S. Attorney-General A. Mitchell Palmer and his special assistant, J. Edgar Hoover, used the Sedition Act and the Espionage Act of 1917 to persecute leftist reformers, arresting more than 1500 for disloyalty, although most of them were eventually released. However, Emma Goldman, Alexander Berkman, Mollie Steimer, and 245 other persons were deported to Russia.
When President Lincoln tried civilians in military courts during the 1861-65 War of Secession, the Supreme Court held, in Ex Parte Milligan 71 U.S. 2 (1866): "Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism...."[9]
The boundary of when persons on U.S. territory could be tried by military courts under the Articles of War rather than as criminals was tested in the Supreme Court on a writ of habeas corpus in Ex Parte Quirin, 317 U.S. 1 (1942),[10] which upheld military prosecution of 7 German spies or saboteurs who had entered U.S. territory covertly.
The issue of extended detention of persons of foreign descent was decided in the Korematsu case, which affirmed the detention of a Japanese-American who protested the detention of Japanese Americans, although he was later found not guilty at the district court level. This case is now generally considered an embarrassment for U.S. case law, although it has not been overturned.
These and other precedents support full due process rights for foreign nationals who are in the United States legally, leave a grey area for foreign nationals here illegally or legally but through fraud.
[1] http://www.constitution.org/rf/alien_1798.htm
[2] http://www.constitution.org/rf/sedition_1798.htm
[3] http://www.constitution.org/rf/kr_1798.htm
[4] http://www.constitution.org/rf/vr_1798.htm
[5] http://www.constitution.org/cons/kent1799.htm
[6] http://www.constitution.org/rf/vr_1799.htm
[7] See Joseph Story, Commentaries on the Constitution, Book 3, Ch. 27, § 1288-9, http://www.constitution.org/js/js_327.htm
[8] http://www.lib.byu.edu/~rdh/wwi/1918/usspy.html
[9] http://www.constitution.org/ussc/071-002a.htm
[10] http://www.constitution.org/ussc/317-001a.htm
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