US Patriot Act Planned Before 9/11


Richard Moore

From: "dnordin" <•••@••.•••>
To: <•••@••.•••>
Subject: US Patriot Act Planned Before 9/11
Date: Sun, 27 Apr 2003 17:56:18 -0700

>From: •••@••.•••
To: You Need To Know:;
Subject: I've suggested this all along...
Date: Sunday, April 27, 2003 7:20 AM
The USA PATRIOT Act Was Planned Before 9/11
by Jennifer Van Bergen
t r u t h o u t | 20 May, 2002

Many people do not know that the USA PATRIOT Act was
already written and ready to go long before September
11th. Recent criticism of Bush's admission that he had
received warnings only weeks before September 11th has
made it more important to understand the origins of the

The USA PATRIOT Act - the so-called "Uniting and
Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of
2001," a.k.a. the USAPA -- was enacted in the immediate
wake of 9/11, riding a wave of fear that spread over
the nation. This Act has caused much concern amongst
civil rights advocates. The Administration, however,
responded to such concerns by calling critics
unpatriotic. Now, the White House has had a similar
response to critics of Bush's recent admission of early

White House spokesman Ari Fleischer said Friday: "I
think that any time anybody suggests or implies to the
American people that this president had specific
information that could have prevented the attacks on
our country on September 11, that crosses the lines."

Dick Cheney came out on Thursday with the statement
that Democratic criticism of Bush's handling of
pre-Sept. 11 terror warnings was "thoroughly
irresponsible." Cheney added an ominous remark to his
"Democratic friends ... that they need to be very
cautious not to seek political advantage by making
incendiary suggestions."

Cynthia McKinney responded: "If committed and patriotic
people had not been

pushing for disclosure, today's revelations would have
been hidden by the White House," she says. "Ever since
I came to Congress in 1992, there are those who have
been trying to silence my voice. I've been told to "sit

and shut up" over and over again. Well, I won't sit
down and I won't shut up until the full and unvarnished
truth is placed before the American people."

House Minority leader Dick Gephardt said: "Our nation
is not well served when the charge of 'partisan
politics' is leveled at those who simply seek
information that the American people need and deserve
to know."

Oddly, following Democratic criticism of Bush's
admission, came the weekend

news that the White House now anticipates an even
terrorist greater attack on American soil. Intrepid
investigative journalist Michael Ruppert, best known
for his reports claiming government's prior knowledge
of 9/11, states

that Fox TV cancelled his Saturday appearance on the
Geraldo Rivera Show due to these reports.

These may be mere coincidences. Time Magazine just
released a lengthy article by Michael Elliott, "How the
U.S. Missed the Clues," in which he states: "Last
summer the White House suspected that a terrorist
attack was coming. But four key mistakes kept the U.S.
from knowing what to do."

Whether the Administration could have anticipated 9/11
or not, the proponents of the USAPA were waiting to go
long before that day. Similar antiterrorism legislation
was enacted in the 1996 Antiterrorism Act, which
however did little to prevent the events of 9/11, and
many provisions had either been declared
unconstitutional or were about to be repealed when 9/11

James X. Dempsey and David Cole state in their book,
"Terrorism & the Constitution: Sacrificing Civil
Liberties in the Name of National Security," that the
most troubling provisions of the pre-USAPA
anti-terrorism laws, enacted in 1996 and expanded now
by the USAPA, "were developed long before the bombings
that triggered their final enactment."

Dempsey is the former assistant counsel to the House
Judiciary Subcommittee

on Civil and Constitutional Rights and Deputy Director
at the Center for Democracy & Technology, and Cole is
professor of law at Georgetown University and an
attorney with the Center for Constitutional Rights.

Looking back at the 1996 Antiterrorism Act, Dempsey and
Cole declare that "the much-touted gains in law
enforcement powers" under that Act, "produced

no visible concrete results in the fight against
terrorism." They add that the principles espoused in
the Act "were shown in case after case to be both
unconstitutional and ineffective in the fight against
terrorism." And importantly, the authors comment that
the United States government has not shown that the
expanded powers it has asserted in the USAPA are
necessary to fight terrorism.

Dempsey and Cole trace the origins of the national
security trend back to the "intolerant approaches of
the 1950s," when association with Communist or
anarchist groups was made a ground for exclusion and
deportation. Congress removed the guilt by association
law in 1990, but it was revived only six years later by
law enforcement proponents in the 1996 Antiterrorism
Act, immediately following the Oklahoma City Bombing.

More specifically, however, Dempsey and Cole show that
it was the Reagan Administration which initially
proposed some of the most troubling provisions which
eventually became part of the USAPA. When Reagan
proposed these provisions, Congress rejected them on
constitutional grounds. The first Bush Administration
then made similar proposals, which were again rejected
by lawmakers. Congress twice refused to enact the
secret evidence provisions proposed by Bush I. (Indeed,
just prior to 9/11, Congress was about to pass a law
repealing the secret evidence provisions of the 1996
Antiterrorism Act.)

The troublesome provisions proposed by Reagan and the
first Bush included the resurrection of guilt by
association, association as grounds for exclusion or
deportation, the ban on supporting lawful activities of

labeled terrorist, the use of secret evidence, and the
empowerment of the Secretary of State to designate
groups as terrorist organizations, without judicial or
congressional review.

Despite the Reagan and Bush proposals and one-sided
hearings, there was broad-based opposition to such
legislation. According to Dempsey and Cole, "several
members of the House Judiciary Committee, both Democrat
and Republican, questioned the need for the
legislation." Lawmakers repeatedly asked why new
legislation was needed and how it would help.
Administration witnesses literally refused to answer
lawmakers' questions, finally causing

Representative John Conyers to exclaim, "I've never
seen this much law created as a result of prosecutions
that we agree worked very effectively!"

"The legislation languished and seemed headed for
defeat," say Dempsey and Cole. Until Oklahoma City.

The Oklahoma City bombing, for which there exists a
significant body of evidence of a shadow government
operation, was used as justification for the enactment
of the very provisions lawmakers had previously found
most constitutionally troublesome.

Included in the resulting 1996 Antiterrorism Act,
although it had nothing to do with terrorism at all,
was Republican Senator Orrin Hatch's long-sought
provision to limit the right of habeas corpus. Habeas
corpus is

the procedure whereby a person convicted by a state
court can challenge that conviction in a federal court.
The thing is, terrorism cases are brought in federal,
not state, courts. "Senator Hatch wanted to make it
more difficult for federal courts to order retrials of
prisoners where state courts had violated the U.S.
Constitution," according to Dempsey and Cole.

The USAPA clearly furthers the goals of making it more
difficult for anyone

to review or appeal government wrongdoing. It allows
for indefinite detention of suspected (not "proven")
alien terrorists, without probable cause of a crime,
without a hearing or an opportunity to defend or
challenge the evidence against them, when they have not
even been proven to

be a threat and have already established a legal right
to remain here. The only process allowed the suspected
alien is the "right" to go to federal court and sue the
government for its actions.

The USAPA expands the Secretary of State's power to
designate terrorist groups without any court or
congressional review and allows for secret searches
without probable cause. Dempsey and Cole state that
these changes "go far beyond what was needed to respond
to terrorism." Indeed, they point

out that in many instances, "the changes are not
limited to terrorist investigations at all, but apply
across the board to all criminal investigations."

A good example of the kind of change brought about
under the USAPA, which illustrates the underlying and
pre-existing agenda of its proponents, is section 218,
which amends a single phrase in the 1978 Foreign
Intelligence Surveillance Act (FISA). The purpose of
FISA was to allow intelligence agencies to gather
information about foreign powers without the
restrictions imposed on them by the Constitution. The
reasoning for this was that the purpose of foreign
intelligence gathering is not to detect crimes but to
gather information about foreign agents.

Under FISA, when an agent wanted to obtain authority to
conduct electronic surveillance or secret physical
searches, a designated official of the executive office
had to certify that "the purpose" for the surveillance

to obtain foreign intelligence information. Section 218
of the USAPA modifies that clause so that intelligence
gathering need not be "the purpose," - in other words,
it need no longer be the primary purpose, -- but may be
only "a significant purpose" of the surveillance.

This means that if an official can certify that
obtaining foreign intelligence is a significant purpose
of a surveillance action (the other purpose clearly
being criminal investigation), he can avoid the

that he first show probable cause of criminal activity.
It means the FBI, the CIA, or any other intelligence
agency, can surveil you without probable

cause, as long as they say the surveillance has
something to do with a foreign intelligence
investigation of some sort (which may otherwise not
even involve you directly).

Because courts have consistently refused to "second
guess" FISA surveillance certifications, there is
effectively no judicial review of such activities. This
small change has enormous ramifications. For all
practical purposes, the section 218 USAPA amendment of
FISA allows government to completely avoid Fourth
Amendment probable cause requirements

for searches and seizures of American citizens (not
just immigrants).

The Congressional Research Service of the Library of
Congress notes: "From the beginning, defendants have
questioned whether authorities had used a FISA
surveillance order against them in order to avoid the
predicate crime threshold..."

In 1980, the 4th Circuit court stated in the landmark
case of U.S. v. Truong Dinh Hung that "the executive
should be excused from securing a warrant only when the
surveillance is conducted 'primarily' for foreign
intelligence reasons." Another circuit court declared
in 1991 that "the investigation of criminal activity
cannot be the primary purpose of [FISA] surveillance."

In other words, courts have pretty consistently thrown
out intelligence information gathered under FISA where
it has been established that foreign intelligence
gathering was not the primary purpose of the

It is clear that intelligence agencies have wanted to
change this law for some time. It is clear that they
have been frustrated by the "primary purpose rule."
However, it is not merely the result of intelligence
agency wishes or a matter of history that this
restriction has now been overridden. History shows that
Congress has consistently resisted enacting these types
of changes. History also shows that the Reagan and Bush
I Administrations repeatedly attempted to push such
laws through. Oklahoma City proved that only a "real"
terrorist attack would convince Congress.

Furthermore, it is obvious that the proponents of this
amendment know it is

an end-run around the Fourth Amendment. They have had
many years to think about it and have repeatedly shown
their willingness to enact carefully crafted,
unconstitutional laws. They know the amendment allows

to conduct criminal investigations on American citizens
without adherence to basic constitutional protections.
Furthermore, under the information sharing provision of
section 203 of the USAPA, information gathered in this

way can now be shared with other intelligence and law
enforcement agencies,

for whatever uses they want.

Most significantly, it is clear that the events of 9/11
gave the proponents

of this amendment the opportunity they needed to slip
it by Congress.



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    work through the political system?", but rather, "Is
    the political system one of the things that needs to be
    fundamentally transformed?"

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