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Silencing Political Dissent
Nancy Chang, Foreword by Howard Zinn
New York: Seven Stories Press, 2002
168 pp., $8.95, Paper
ISBN 1-58322-4947

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STOP what you are doing right now and go out and buy ten copies of Silencing Political Dissent by Nancy Chang. Every person living in the United States should read this book. The Bill of Rights (the first ten amendments to the constitution) is no longer the same one that you learned about in elementary school. Nancy Chang, an attorney at the Center for Constitutional Rights, has produced a brilliant critique of a crucial matter of liberty that is an easily read account of a complicated subject. She eloquently yet simply describes how your rights and specifically your political freedoms changed dramatically when George W. Bush signed into law the USA PATRIOT Act on October 26, 2001.

The framers of the constitution brilliantly divided the power of our government into three branches, the Congress, the executive, and the judicial branches. Each is intended to be a watchdog for the other two. The USA PATRIOT Act threatens the integrity of this balance by consolidating new powers into the executive branch.

Historically the Bill of Rights often has been compromised in times of war. The Espionage Act of 1917 made it a crime to print abusive language about the United States; the Smith Act of 1940 made it a crime to advocate overthrowing any government in the United States; and during the Cold War, the civil rights movement, and the Vietnam War, the Counter Intelligence Program (COINTEL) secretly spied on political activities protected by the First Amendment. However, the various threats to the Bill of Rights posed by the USA PATRIOT Act, namely to the First, Fourth, Fifth, and Sixth Amendments, could be profound and long lasting.

The USA PATRIOT Act compromises our First Amendment rights, which guarantee our freedom of speech, press, political association, and religion, by creating a broad new crime called "domestic terrorism." Section 802 of the Act defines domestic terrorism crime as actions that "appear to be intended…to influence the policy of a government by intimidation or coercion". The terms according to Chang are vague and expansive, licensing the investigation and surveillance of political activists and organizations that protest government policies. Activists who use direct action (nonviolent but confrontational) are particularly vulnerable says Chang. The vague definition of the crime allows the government to group nonviolent civil disobedience, like that patterned after Gandhi and King, with Al Qaeda style attacks.

In addition, Section 411 prohibits the entry into the United States of persons "whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines the United States efforts to reduce or eliminate terrorist activities". A similar act, the McCarran-Walter Act of 1952 barred prominent scholars, writers and political activists from entering the country including Pablo Neruda, Gabriel Garcia Marquez and Carlos Fuentes.

Our Fourth Amendment rights were threatened when Congress gave the government enhanced surveillance powers including Internet tracking, wiretapping, sneak-and-peek searches, and monitoring of financial transactions. The Fourth Amendment currently protects our privacy against unreasonable government intrusion and surveillance. The requirement of the search warrant allows the judicial branch to monitor the executive branch. A warrant only can be obtained when there is probable cause that a criminal act has occurred and the search will uncover evidence of the crime.

Section 213 of the Act allows federal agents to conduct sneak-and-peek searches without search warrants. The watchdog role of the judicial system is eliminated. It allows delayed notice of the search or of items seized in the search "for a reasonable period of time." Picture this: "Honey, where's that book I bought the other day by Noam Chomsky? I swear I left it on the coffee table."

Section 216 of the Act allows government access to Internet routing information although, in theory, not content of the communications. However email messages move in units that include both routing and content information that cannot be separated. The Act does not clarify whether websites that have been visited constitutes "routing" or "content" information. The Act allows for the use of the government's Internet tracking device Carnivore, which uses artificial intelligence to monitor review enormous volumes of information.

Once installed on an Internet service provider (ISP), Carnivore can monitor all communication flowing through the ISP network. The government is already activating these powers to monitor emails and phone activities in this country. Albert Gideon, an attorney representing Internet services and telephone companies states the number "of subpoenas that carriers receive today (for their customer records) is roughly doubling every month… we're talking about hundreds of thousands of subpoenas for customers records. Stuff that used to require a judge's approval."

The Department of Justice also has created a Regional Information Sharing System (RISS), a large database that is compiling files of persons under suspicion of domestic terrorism. Even political activists engaged in peaceful protest can have their file indexed on RISS and accessed by over 5600 federal, state and local law enforcement agencies.

The Fifth Amendment protects our due process and a full opportunity to be heard. The Sixth Amendment promises a fair trial and the assistance of counsel to those accused of the crime. The USA PATRIOT Act compromises the Fifth and Sixth Amendment rights of noncitizens by allowing the government to detain and deport them from the United States based on political activities that have been "recast" under the Act as terrorist activities.

Under the Act the term "engaged in terrorist activity" has been expanded to include soliciting funds for, soliciting membership for and providing material support to a "terrorist organization" even when the organization has legitimate political and humanitarian ends. The definition of a "terrorist organization" is no longer limited to organizations published in the federal registrar but rather "two or more individuals whether organized or not, who engage on specific terrorist activities".

Of the roughly 2000 persons who were detained or "disappeared" by federal agents since September 11, 2001 only one has been determined to be connected to the tragedy of 9-11. To date several remain in custody without counsel or trial. The detainees have been held up to 119 days before being charged. The Fourth Amendment requires the government to charge suspects with a crime within 48 hours of arrest. Many spent over one hundred days in prison before being deported. Family members were not notified of detainees' whereabouts and were often denied visits when they did. Detainees were allowed only one phone call a week and some just one per month. On October 31, 2001 the Bureau of Prisons issued an interim rule allowing the Department of Justice to monitor communications between federal inmates and their attorneys. This rule interferes with the Sixth Amendment's assurance of effective assistance of counsel.

A few of the procedures included in the Act will expire or "sunset" on December 31, 2005. However, not all will, and if Bush remains in office for a second term he can be expected to make these provisions permanent. The Bush administration has challenged the patriotism of those who have criticized the Act. However, as Nancy Chang eloquently shows us, there is nothing more patriotic that preserving our Bill of Rights. If we are to have an America worthy of defending we need to protect our civil rights; it is critical for the existence of our democracy.

We must exercise our rights of free speech and political association to protest anti-terror measures that infringe on our Bill of Rights. Chang encourages us to organize public education, build coalitions, alert the press to our concerns, seek information under the Freedom of Information Act, and call on our Congress to oversee the executive branch and to appoint judges that are sensitive to the Bill of Rights.

-- Lucy Boulanger, MD

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