When, shortly after September 11, the U.S.A. Patriot Act first arrived in our midst, its very title seemed to deliver an injury: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” The name of the country (U.S.A.) and of those responsible for creating and sustaining it (patriots) had been turned into a Justice Department acronym. One might have thought that “United States of America” would be regarded as a sufficient referent for the letters U.S.A.1 and that no one would presume to bestow a new set of words on those letters—or attach a new meaning to the word patriot, with its heavy freight of history (Paul Revere, Patrick Henry, Emma Lazarus) and its always fresh aspiration (“O beautiful for patriot dream”).
In the two years since its passage by Congress, on October 25, 2001, the U.S.A. Patriot Act has become the locus of resistance against the unceasing injuries of the Bush-Rumsfeld-Ashcroft triumvirate, as first one community, then two, then eleven, then 27, then 238 have passed resolutions against it, as have three state legislatures. Many more councils and legislatures have draft resolutions pending. The letters U.S.A. and the word patriot have gradually reacquired their earlier solidity and sufficiency, as local and state governments reanimate the practice of self-rule by opposing the Patriot Act’s assault on the personal privacy, free flow of information, and freedom of association that lie at the heart of democracy. Each of the resolutions affirms the town’s obligation to uphold the constitutional rights of all persons who live there, and many of them explicitly direct police and other residents to refrain from carrying out the provisions of the Patriot Act, even when approached by a federal officer and explicitly instructed to do so.
When the resistance was first beginning, in the winter of 2001–2002, it took five months for the first five resolutions to come into being; in the winter of 2003–2004, a new resolution comes into being almost every day. The resolutions come from towns ranging from small villages with populations under a thousand—such as Wendell, Massachusetts (986), Riverside, Washington (348), Gaston, Oregon (620), and tiny Crestone, Colorado (73)—to huge cities with populations of many hundreds of thousands—Philadelphia (1,517,550), Baltimore (651,000), Chicago (2,896,000), Detroit (951,000), Austin (656,500), San Francisco (777,000).2 Approximately one third of the resolutions come from towns and cities with populations between 20,000 and 200,000 people.
The fact that the Patriot Act should have become this locus of resistance may at first seem puzzling. True, its legislative history is sordid: it was rushed through Congress in several days; no hearings were held; it went largely unread; only a few of its many egregious provisions were modified. But at least it was passed by Congress: many other blows have been delivered to the people of the United States in the form of unmodified executive edicts, such as the formation of military tribunals and the nullification of attorney-client privilege.3 True, the Patriot Act severed words from their meanings (beginning with the letters U.S.A.). But executive statements outside the Patriot Act—statements associating Iraq with nuclear weapons and with al Qaeda—have severed words from their basis in material fact, at the very great cost of a war that continues to be materially and mortally destructive. True, the Patriot Act has degraded the legal stature of the United States by permitting the executive branch to bypass constitutional law. But what is our level of legal degradation? In an area outside the Patriot Act, we appear to have reached rock bottom. Evidence indicates that the Bush administration has created off-shore torture centers in Bagram, Afghanistan (where one prisoner has died of pulmonary embolism, another of a heart attack), and on the British island of Diego Garcia, and has sent prisoners to interrogation centers with documented histories of physical torture in Egypt, Jordan, Saudi Arabia, and Syria.4
Each of the enumerated events—the Patriot Act, the executive edicts, the war against Iraq, the alleged practice of torture—has elicited protest from the population. What differentiates the opposition to the Patriot Act from the opposition to the other executive actions is the fact that it is steadily spreading and has gained traction: it has enabled the population to move beyond vocalizing dissent to retarding, and potentially reversing, the executive inclination to carry out actions divorced from the will of the people.
The Patriot Act has become the locus of resistance for three reasons. First, as even the brief summary above suggests, it is itself continuous with the most extreme actions carried out by the Bush adminstration. That continuity is visible in the local resolutions, many of which explicitly enumerate, and also carefully distinguish, the constitutional insults delivered by both the Patriot Act and the executive decrees. Although the executive decrees are by far the most frequently mentioned companions to the Patriot Act, the resolutions also refer to the Homeland Security Act (cited, for example, by Brookline, Massachusetts; Arcata, California; Rockingham, Vermont; Woodstock, New York; and Takoma Park, Maryland), which has one provision arranging for its own exemption from Freedom of Information Act requirements and another arranging for mandatory vaccinations; the not-yet-passed “Patriot Act II” (cited by Astoria, Oregon; Baltimore; Orange County, North Carolina; Reading, Pennsylvania; Rio Arriba, New Mexico; and York, Pennsylvania), which enables the attorney general to strip Americans of their citizenship if he believes they have supported a terrorist group; the attorney general’s May 30, 2002, revised guidelines for the FBI (cited by University City, Missouri); the act of taking the country to war in Iraq without a congressional declaration of war (cited by Blount County, Tennessee); and alleged acts of torture (alluded to by Bainbridge Island, Washington, which urges that executive practices be tested not only against the U.S. Constitution but against international prohibitions on torture).
Second, the consequences of the Patriot Act are extremely damaging—even considered in isolation from objectionable executive decrees. As the next section shows, they threaten the fundamentals of American democracy, constitutional protections of non-citizens, and a range of other basic American institutions.
Third, the Patriot Act does indeed differ from all the other forms of executive action in one key respect that has proved crucial to the work of resistance, and that attribute will be explored in the final section of the essay.
A Structural Injury
If many members of Congress failed to read the Patriot Act during its swift passage, it is in part because that act is almost unreadable. The Patriot Act is written as an extended sequence of additions to and deletions from previously existing statutes. In making these alterations, it often instructs the bewildered reader to insert three words into paragraph X of statute Y without ever providing the full sentence that is altered either in its original or its amended form. Only someone who had scores of earlier statutes open to the relevant pages could step painstakingly through the revisions. On the issue of electronic surveillance alone, the Patriot Act modifies the Electronic Communications Privacy Act, the Foreign Intelligence Surveillance Act, the Cable Act, the Federal Wiretap Statutes, and the Federal Rules of Criminal Procedure. Reading the Patriot Act is like being forced to spend the night on the steps outside the public library, trying to infer the sentences in the books inside by listening to hundreds of mice chewing away on the pages.5
The hundreds of additions and deletions do, despite appearances, have a coherent and unitary direction: many of them increase the power of the Justice Department and decrease the rights of individual persons.6 The constitutional rights abridged by the Patriot Act are enumerated in the town resolutions, which most often specify violations of the First Amendment guarantee of free speech and assembly, the Fourth Amendment guarantee against search and seizure, the Fifth and Fourteenth Amendment guarantees of due process, and (cited somewhat less often) the Sixth and Eighth Amendment guarantees of a speedy and public trial and protection against cruel and unusual punishment.
The unifying work of the Patriot Act is even clearer if, rather than summarizing it as an increase in the power of the Justice Department and a corresponding decrease in the rights of persons, it is understood concretely as making the population visible and the Justice Department invisible.
The Patriot Act inverts the constitutional requirement that people’s lives be private and the work of government officials be public; it instead crafts a set of conditions in which our inner lives become transparent and the workings of the government become opaque. Either one of these outcomes would imperil democracy; together they not only injure the country but also cut off the avenues of repair.
When we say that democracy requires that the people’s privacy be ensured, we do not mean that our lives remain secret; we mean instead that we ourselves individually control the degree to which, and the people to whom, our inner lives are revealed.7 FromGriswold v. Connecticut (l965) to the recent Lawrence v. Texas (2003), the Supreme Court has affirmed that privacy is a fundamental constitutional value and located its roots in the First, Third, Fourth, and Fifth Amendments. In an elegant summary of the underlying theory, the constitutional scholar Kenneth Karst has argued that privacy has a three-part architecture. Privacy means first of all “informational privacy”—control over personal information and judgments. Such privacy is in turn the basis of a person’s capacity for friendship and intimacy. It is also the foundation of moral autonomy and liberty, since freedom is premised on making important decisions based on independent judgment.8 Inhabitants of a country who lose the guarantee of privacy also eventually lose the capacity for making friends and the capacity for political freedom.9
As necessary to democracy as this nontransparency of persons is the transparency of government actions. Because we have, for the past three decades, focused so intensely on the constitutional guarantee of personal privacy but not on the corresponding requirement of the non-privacy (or publicness, or publication) of the acts of governors, it is useful now to recall how many times the United States Constitution pauses to require the act of creating of an open record: “Each house [of Congress] shall keep a Journal of its Proceedings, and from time to time publish the same” with “the Yeas and Nays of the Members . . . entered on the Journal” (Article I, Section 5);10 a roll-call vote, recording not just numbers but names, is required when Congress overrides a presidential veto (I, 7); “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time” (I, 9); presidential objections to a piece of legislation must be forwarded to the house in which the legislation originated and published in their journal (I, 7); every congressional vote, with the exception of a vote on adjournment, “shall be presented to the President” (I, 7); the counting of the Electoral College votes must take place in the presence of the full Congress (II, 1; Amendment 12); the president is authorized to require the “Opinion in writing, of the principal Officer in each of the executive Departments” (II, 2); the president “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient” (II, 3); treason proceedings will take place in “open Court” (III, 3) and criminal prosecutions in a “public trial” (Amendment 6).11 Unlike Article I (on the Congress) and Article II (on the presidency), Article III (on the courts) does not specify the keeping of records; but the fact that such open record-keeping is assumed is indicated by the opening clause of Article IV (on the states): “Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other state.”
The obligation of each branch to make its actions public—to make them visible both to the population and to the other branches—is often construed as a right belonging to the population, the right of access to information or “freedom of information,” and is closely bound up with First Amendment protections of free speech. Though scholars and jurists disagree about the extent to which access to government information is guaranteed by the Constitution (as well as by subsequent legislative acts, particularly the Freedom of Information Acts of 1966 and the later 1972–1978 statutes), it is hard to disagree with the stark argument—made with particular force by Alexander Meiklejohn and Cass Sunstein—that democratic deliberation is impossible without this access to information: “If information is kept secret, public deliberation cannot occur.” Secrecy, continues Sunstein, “is inconsistent with self-rule.” (Or, as the local resolution of Astoria, Oregon, recently phrased it, “Secrecy . . . undermines established norms for civil discourse between government and those it would govern.”) Sunstein identifies citizen deliberation as the primary benefit of open government, but he also identifies other benefits, including “checks and balances” (one branch cannot check the other if it does not know what the other is doing), “deterrence” (national security may actually be strengthened by open revelation of the country’s resources), and “sunlight as disinfectant” (if deliberations are carried out in secret, “participants may be less careful to ensure their behavior is unaffected by illegitimate or irrelevant considerations”).12
The double requirement—that people’s lives be private and government actions be public—is turned inside out by the Patriot Act. The inner lives of people are made involuntarily transparent by provisions that increase the ability of federal officers of the executive branch to enter and search a person’s house (section 213), to survey private medical records, business records, library records, and educational records (sections 203, 215, 218, 219, 358, 507, 508),13 and to monitor telephone, e-mail, and Internet use (section 216). Simultaneously, the Patriot Act obscures executive-branch actions, hiding those actions from the population and from the legislative and judicial branches, and doing so before, during, and after the executive actions are carried out. One provision lowers the standards for “probable cause” (the need to show the courts evidence of a crime) to monitor a phone or computer, thereby almost releasing the executive branch from judicial supervision, a key feature of the constitutional checks and balances (section 216). Another provision releases the government from the obligation to inform a person that her house is about to be searched; it permits delayed notification of seven days and continual postponement thereafter (section 213). Another provision releases the CIA from its obligation to submit intelligence reports to Congress, instead allowing the secretary of defense, the attorney general, or the CIA director to defer the date of reporting (section 904).
The goal of making the actions of the executive branch opaque is carried out not only by the content of the Patriot Act, but by its form—its lengthy and difficult to comprehend list of revisions to scores of previously existing laws. The Patriot Act empowers the executive branch while obscuring the features of that empowerment. Some of the 238 local resolutions focus explicitly on the Patriot Act’s unwieldy form: Blount County, Tennessee, observes that it contains 1,016 sections; Philadelphia and San Mateo, California, both note its extensive page length; Philadelphia registers the absence of congressional hearings or markup sessions during its rapid passage;14 Amherst, Massachusetts, complains that it was “passed hurriedly”; and the Alaskan city of North Pole observes that such “sweeping legislation required intense public review and comment before it was passed.” Librarians and other ardent readers have from the outset recognized the importance of making the act lucid and have therefore played a pivotal role in the resistance to it, a subject that will return later.
The content of the Patriot Act is the principal concern, however. And while it may look like a ticker tape of tiny revisions in the phrasing of previous laws, the content of the Patriot Act goes to the core of our political life: it distorts not just this or that particular feature of governance but the basic act of self-governance itself. Because the privacy of individual action and the publication of government action are both necessary to democratic self-rule (that is, to the debate, deliberation, and decision-making on which self-rule is premised), the major complaint of the local resolutions has been the damage done to the liberties of persons and to the integrity of our laws. The most high-keyed formulation of this worry comes at the conclusion of Blount County’s resolution, which calls on all residents to study the U.S. Constitution so that they can resist not only the executive acts that have already been formulated but those that may come in the days ahead: “to study the Bill of Rights so that they can recognize and resist attempts to undermine our Constitutional Republic15 . . . and declare null and void all future attempts to establish Martial Law, [or] Declared States of Emergency.” While most of the other 237 local resolutions are more measured in their language, the documents consistently register the view that both the people and the laws of the country are endangered. Together the local resolutions constitute a treatise on self-governance and the rule of law.
Justice for All
But the resolutions have a second, closely related focus. Though the Patriot Act—in the words of the Boulder, Colorado, resolution—enables the federal government “to detain and investigate citizens and non-citizens,” and to carry out “surveillance of citizens and non-citizens,” its blows fall most heavily on those who are not U.S. citizens.
Consider section 412. As summarized by the city of Ann Arbor, it permits the incarceration of noncitizens for seven days without charge, and “for six month periods indefinitely without access to counsel” if the attorney general “determines release would endanger either the country or individual persons.” Before it was modified by Congress, the attorney general’s original draft of the Patriot Act allowed for the unlimited detention of immigrants, rather than a seven-day period. But the congressional revision is less of an improvement than it at first appears, since various loopholes release the executive branch from the seven-day constraint. As Michael T. McCarthy observes, “The effect of the U.S.A. Patriot Act . . . is to allow the Attorney General to detain indefinitely not only those convicted of crimes or immigration offenses . . . but also any person the Attorney General has reasonable grounds to believe is a terrorist or is engaged in any other activity that endangers the national security.” Resolutions such as those of Detroit, Seattle, Minneapolis, and the California cities of Pinole, Oakland, Richmond, and San Francisco observe that among those most at risk are persons of Muslim, Middle Eastern, or South Asian descent. The Chicago resolution also describes the risks for Hispanics.
The resolutions collectively work to prevent this imperilment of all residents of the United States. Almost without exception, the 238 resolutions celebrate their commitment to law and liberty for all “persons” or “residents,” not only “citizens.”
This celebration is expressed in part as a matter of constitutional conviction. The very first clause of the very first resolution (Ann Arbor) begins by echoing the 2001 Supreme Court decision in Zadvydas v. Davis:16 “Whereas, the due process and equal protection clauses of the 5th and 14th Amendments to the United States Constitution guarantee certain due process and equal rights to all residents of the United States, regardless of citizenship or immigration status . . .” The Cambridge, Massachusetts, resolution explicitly cites the Zadvydas case.
Other resolutions remind all residents of a matter of political principle: that discrimination based on “citizenship status” is no more permissible than discrimination based on race or gender. And many resolutions found their concerns on civic solidarities or on the public contributions of noncitizens. They complain that the Patriot Act tries “to drive a wedge” between citizens and noncitizens, or between police and residents, or between police and foreign nationals, a situation held to be intolerable because the town depends on the diverse population for its “vitality” and its “economy, culture, and civic character” (Arlington, Massachusetts; Aztec and Rio Arriba, New Mexico). Individual resolutions give specific reasons why the presence of foreign nationals, vital to all localities, is especially life-giving to this particular place: it may be because the town is tiny and therefore depends on each and every one of its residents (the reason given by Castle Valley, Utah); or because both foreign students and workers reside there (the reason given by York, Pennsylvania; University City, Missouri; Arlington, Massachusetts; and Flagstaff, Arizona); or because it is a port city (the reason given by Baltimore) or because foreign nationals living within the city already have the right to vote in municipal elections (Takoma Park, Maryland).
Almost the only time when “citizens” are singled out as “citizens” is when one of the documents—such as those of Philadelphia; San Jose, Washington; and Amherst, Massachusetts—places on “citizens” the burden of acting to ensure that all “persons” or “residents” enjoy the benefits of due process, protection from unwarranted search and seizure, and freedom of speech, assembly, and privacy. If, in other words, citizens are unique, it is because they are the guardians of the rights belonging to citizens and noncitizens alike, not the exclusive holders of those rights.
In addition to aiming blows at our legal framework of self-governance and our political convictions about protecting both citizens and noncitizens, the Patriot Act licenses the executive branch to harm other institutions—for example, financial markets and universities—and once again, its blows appear to be structural, to go to the foundations of these institutions.
Take, for example, section 356, which requires bankers, broker-dealers, commodity merchants, and trading advisers to file “suspicious activity reports” (abbreviated SARs) when they notice their clients carrying out unusual actions that entail transferring amounts of money greater than $5,000. In the past, the filing of such reports was wholly voluntary (and the guidelines stipulated $100,000, not $5,000, as the triggering event). Today the act of filing is mandatory. Failure to file is punishable by criminal and civil charges, with fines reaching $10,000.17 Furthermore, one is prohibited from telling one’s client about the SAR, which not only taints one’s relationship with that client but eliminates at the outset the possibility of determining whether the transfer of money has some sensible explanation that, if you only knew it, would convince you the act of filing was preposterous. The Patriot Act seeks to enlist the financial community into its intelligence-gathering operation not only by penalizing individuals who fail to file but by immunizing those who do. The Act provides “a safe harbor” for the person who files the SAR.18 Should an innocent person become the subject of a SAR and subsequently suffer harm as a result of that filing, the person who filed the report cannot be held liable.
You do not have to be a banker or a trading adviser or a commodity merchant or one of their clients to see a problem here—a problem that, at least from the outside, looks less like a decorative inflection in the practice of those markets than a foundational strike at the structure of trust, privacy, good faith, and the assumption of innocence without which markets cannot operate.
Universities, too, are among the institutions the Patriot Act seeks to change, and again we may ask the question: is the alteration superficial or structural? The situation may be swiftly assessed by looking at the two spaces that stand most directly in the path of damage: the library and the laboratory. Not the side paths, not the attic, not the bell tower, not the kitchen, not the playing fields, but the heart of the sciences (the laboratory) and the arts (the library).
Section 817 of the U.S.A. Patriot Act lists “restricted persons” who henceforth are not allowed to work in the presence of specified biological and chemical materials. Legal and illegal aliens from countries that, in the judgment of the secretary of state, support terrorism (Cuba, Iran, Iraq, Libya, North Korea, Syria, Sudan) are placed in the company of convicted criminals and persons determined to be “mentally defective” and prohibited from contact with even the paper record of listed substances. At first, the list of named substances included almost no materials used in campus laboratories. But as MIT, among other institutions, correctly anticipated, the list of biological and chemical substances would soon grow longer, as would the list of foreign nationals prohibited from entering the laboratory.19
In a lucid, publicly available report, MIT described “the growing pressure to . . . create a new landscape for faculty, students, and MIT as an institution.”20 The new landscape would be built on a two-tiered system consisting of two categories of people: one that could pass freely in and out of the space of education and another that could not. That outcome would starkly revise MIT’s own research policy, which specifies that no research requiring “classification on process, funding, or results” can take place on campus without approval by the university’s provost; since 1975 no such approval has ever been granted.21 The faculty report observes that a legislative act which obligates an institution “to identify and prevent ‘restricted persons’ from having access to specific classified agents” threatens to change the campus in almost the same way that the traditional category of “classified research” does.22The report urges that MIT decline all research that would place the university in the position of building two-tiered spaces anywhere on campus. Many other universities have voiced similar concern.
As with the laboratories, so with the libraries (both university and public). No section of the Patriot Act has been so widely discussed as section 215, which applies to (though it does not name) both college and public libraries (and, in many cases, bookstores). When approached by an FBI or CIA agent, librarians must turn over a record of the books a specified patron has taken out. The librarian—like the banker who files a suspicious activity report—is not permitted to tell anyone of the intelligence gathering in which he or she has just participated: “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” When the U.S.A. Patriot Act was rolling through the empty corridors of Congress in the middle of the anthrax panic, the American Library Association inhabited those hallways too, trying valiantly to introduce an amendment that would exempt libraries from the reach of the act.23 But according to the American Library Association’s own account, they could not even get accurate records of the wording of either the House or the Senate versions and had to rely on “rumor.”24
Anyone should know not to get on the wrong side of librarians, and the Bush administration must in retrospect ardently wish the American Library Association had gotten its exemption; for soon after the passage of the bill and while the rest of the country was still scratching its head, only dimly aware that there was such a thing as the Patriot Act, notices began appearing in local newspapers all over the country, announcing “A Lecture to be Held on the Patriot Act” at this or that town library and describing the deep dilemma in which the always-conscientious librarians now found themselves.25 In his September 2003 tour of sixteen cities to defend the Patriot Act, Attorney General Ashcroft dismissed the idea that the Justice Department could conceivably care about librarians or library records, an act of jeering that echoed the earlier derision of FBI officers.26
The derision is puzzling since it seems to imply that librarians do not have any history of serving as political actors, an implication starkly at odds with national and international history.27 More to the point, and perhaps as a result of their lack of interest in libraries, the attorney general and his assistants appear not to have read the University of Illinois study that found that by February of 2002 (four months after the Patriot Act was passed) 4 percent of all U.S. libraries, and 11 percent of all libraries in communities of more than 50,000 people had already been visited by FBI agents requesting information about their patrons’ reading habits.28Attorney General Ashcroft then indignantly insisted that not-yet-released FBI records would demonstrate the indifference of the Justice Department to the libraries; but the Justice Department had for the preceding two years refused to release these very same records, despite Freedom of Information Act petitions filed by the American Civil Liberties Union, the Freedom to Read Foundation, and the Electronic Privacy Information Center.29
Earlier it was observed that if a government obscures the record of its own activity while forcing the population into transparency, it not only injures democracy but also cuts off the path of repair. We can see how this works in the case of libraries. Stated in distilled form, the logic of the Patriot Act and its defense involves five steps:
• Maximize the power of the Justice Department.
• Erase the public record of Justice Department actions.
• Respond with indignation if anyone protests that the Justice Department might actually be using its newly expanded powers.
• Point out that the protesters are speaking without any hard evidence or facts (without mentioning that the executive branch has withheld those very facts from the public).
• If necessary, pull out a piece of previously withheld “evidence” that shows you know more than the foolish protesters.30
This formula has by no means defeated Patriot Act resistance in the long run, but it has deterred it, by giving an individual who recognizes the dangers the act poses to the country only two choices: step forward and speak without complete evidence in hand (and risk being jeered by federal officers or even by one’s own community) or be silent altogether from the outset—in other words, either immediate self-silencing or slightly delayed silencing-by-others. Take the case of Bill Olds, who used to write a regular column for The Hartford Courant about civil liberties. When he learned from local librarians that FBI officers had (without giving any explanation) walked into the library, seized the hard drive of a computer, and then walked out again, he began to complain in print about section 215 of the Patriot Act and the seizure of private records. The local FBI office, swollen with indignation at the suggestion that they might actually do what the Patriot Act allowed them to do, announced self-righteously that they had seized that computer because they were on the track of an alleged ordinary criminal, not an alleged terrorist.31 Both the Hartford Courant and Bill Olds were embarrassed by the episode; Bill Olds lost his job.32
It is crucial that the concrete record of actual abuses carried out by the executive branch under section 215, as well as many other sections of the Patriot Act, be made public. But the record of its use should not deflect attention from the reprehensible quality of the Patriot Act itself. From the founding of this country the phrase “a government of laws and not of men” has always meant that the country cannot pass open-ended laws that will be good if the governors happen to be good, and bad if the governors happen to be bad. The goal has always been to pass laws that will protect everyone regardless of the temperament and moral character of the individual governors. The country, as Justice Davis famously observed in the 19th century, “has no right to expect that it will always have wise and humane rulers.” That’s why it is crucial to pass good laws. And crucial, also, to repeal bad ones.
Despite impediments to resistance, 238 towns, cities, and counties have now created a firewall against executive trespass in their communities. Though there are many differences between the resolutions (which vary in length from half a page to four pages), the resistance is built out of six identifiable acts, the first five of which require little explanation, while the sixth requires fuller attention.
Clarify. The resolutions describe the constitutional provisions that are violated, the specific sections of the U.S.A. Patriot Act through which the violations occur, the relation between the Patriot Act and other executive extensions of power, and who is at risk. In their clarity they undo the cringing obscurity of the Act itself. The resolutions are distributed through local publications and postings: the Brookline, Massachusetts, resolution, for example, explicitly calls on “the Town Clerk and the Board of Selectmen jointly [to] endeavor to publish this resolution and post it in public places, e.g., kiosks, bulletin boards, and the lobbies of Town Hall, the libraries and public schools . . .”33
Warn. The act of clarifying alerts town residents to the dangers of violating the act and therefore itself constitutes a form of warning. But in addition, some of the resolutions—such as those for Oxford, Ohio; Baltimore; Detroit; Newton, Massachusetts; Rio Arriba, New Mexico; and Aztec, New Mexico—explicitly provide for a sign warning residents about section 215 in the town library:
The City of Aztec . . . DIRECTS public libraries within the City of Aztec to post in a prominent place within the library a notice to library users as follows:
WARNING: under Section 215 of the federal USA PATRIOT Act (Public Law 107-56), records of the books and other materials you borrow from this library may be obtained by federal agents. That federal law prohibits librarians from informing you if federal agents have obtained records about you. Questions about this policy should be directed to: Attorney General John Ashcroft, Department of Justice, Washington, DC 20530.34
The call for a warning sign in libraries in turn invites people to see the need for posting warnings in other spaces not explicitly cited in the resolutions: banks, brokerage firms, medical offices, computer labs.
A Call for Reporting. Many resolutions call upon the executive branch (including local FBI and U.S. Attorney offices) to report to the town the number and name of any residents detained or imprisoned, and to specify the number of library records, medical records, business records, or e-mails that have been monitored.35The resolutions usually specify a time interval, conveying to the federal government their expectation that they will receive reports “monthly” (Ithaca, New York; Orleans, Massachusetts), “every three months” (Lane County, Oregon), “every six months” (Rio Arriba, New Mexico), or “regularly and publicly” (Guilford, Burlington, Jamaica, Marlboro, Putney, and Athens, Vermont; Northampton, Leverett, Provincetown, and Eastham, Massachusetts; Madison, Wisconsin; Davis and Mendocino, California; Broward County, Florida; Takoma Park, Maryland; and New Paltz, New York).36Though the town and city resolutions cannot make the federal government comply, the call for reporting reinstates and places on the record the expectation of transparency in government actions. It thereby delivers a warning to the federal government.
Repeal. Many localities—Chicago; Minneapolis; Ithaca, New York; Burlington, Vermont; Corvallis, Oregon; Eastham and Northampton, Massachusetts; Fairfax, California, and scores of others—call upon their senators and representatives to repeal the sections of the Patriot Act that violate the constitutional rights of residents.37 Defenders of the Patriot Act sometimes argue that the urgency of repeal is mitigated by the “sunset clause,” which shuts down the act on December 31, 2005. But far from cutting off the effects of the Patriot Act, the sunset clause explicitly permits all investigations of international terrorism already underway as of December 31, 2005, to continue indefinitely.
Unite. Each resident is, side by side with all other residents, constitutive of the town, city, or county; and all residents are, regardless of citizenship, bearers of rights. Hence, “A threat to any one person’s Constitutional rights is a threat to the rights of all” (a principle stated in the Philadelphia, Duluth, and Amherst, Massachusetts, resolutions). The asymmetry between citizen and foreign national lies in the citizen’s greater obligation to uphold the Constitution and to protect “the rights of all people, including United States citizens and citizens of other nations, living within the City.”
Decline to Assist. The resolutions direct the town police, town employees, and residents to decline to assist the federal government in any act that violates the federal Constitution. Local police should abstain from assisting federal officers in house searches that violate the Fourth Amendment (the police and town councils often work together to find the wording for the instruction to police that will be most helpful to the police). Likewise, librarians should abstain from giving out private library records that violate the First and Fourth Amendments; bankers should abstain from filing suspicious activity reports that violate the First and Fourth Amendments.38
Because federal officers cannot carry out their acts of trespass without the assistance of police, bankers, and librarians, the refusal of police, bankers, and librarians to assist provides a concrete brake on the actions of the federal government. It brings them to a halt. Hence, unlike the third and fourth acts of resistance (the calls for reporting and for repeal), this sixth act carries the power of its own enforcement.
Here we have the key to why the Patriot Act—rather than the executive edicts—has become the locus of resistance. In actions in which the general population’s participation is not needed, the general population’s approval or disapproval is a matter of indifference to the executive. Since military tribunals do not require the assistance of the population, military tribunals are not ours to assist or to decline to assist; hence what we think about the military tribunals is a matter of indifference to the executive. Since the country has a standing army rather than a draft, the general population’s assistance is not needed to fight foreign wars; to our great peril, the war against Iraq was neither ours to assist nor to decline to assist. The executive branch can carry out alleged acts of torture without the population’s help; so neither its approval of nor its hostility to such acts is of any interest to the executive. If, without the population’s assistance, 5,000 foreign nationals can be detained without charges (only four of whom were ever, in the end, charged with terrorism-related acts),39 then the population’s disapproval of this detention is like smoke rings in the wind.
But the aspirations encoded in the Patriot Act—the making transparent of the population and the making invisible of the executive branch—cannot come about without the help of people everywhere. While (in other words) the actions of our executive branch have, like a runaway train, become divorced from the will of the people, here in the Patriot Act the government is still dependent upon its people, and therefore the population can exert, and is exerting, a braking power. It is not the fact that we—as local librarians, or police, or bankers—are being asked to assist that is the problem: a government and its people must be yoked together in a democracy, and the many areas in which they have become unyoked need to be repaired. The problem is not being asked to assist, but being asked to assist in acts of defying the Constitution and betraying our country.
People sometimes say the Patriot Act has become the locus of resistance for selfish reasons: here not just foreign nationals but U.S. citizens are among those at risk, and therefore a groundswell of opposition has arisen. If this is true, it is only partially true, for—as noted earlier—the legal rights of foreign nationals are a major subject of the resolutions (beginning with the first “whereas” clause of the first town resolution passed). Furthermore, there is nothing illegitimate about acting out of self-interest: democracy puts the levers of government in the hands of the people in part because they can best judge what is in their own interest. But more important than self-interest40 in explaining why the Patriot Act has become the locus of resistance is the fact that with this act, people everywhere stand to become not just the victims of executive action but assistants to its injuries; apparently, people in the United States have a strong aversion to betraying their own Constitution and fellow town residents.
The part played by the executive requests for assistance can be appreciated by observing their resemblance to the Writs of Assistance that preceded the American Revolution. The Patriot Act is a gigantic license to search and seize that violates the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the persons or things to be seized. (emphasis added)
As noted earlier, the Patriot Act explicitly lowers the “probable cause” requirement (section 216), thereby also diminishing judicial review. Equally important, the Patriot Act eliminates the specificity clause—”particularly describing the place to be searched, and the persons or things to be seized”—which like “probable cause” places severe restraints on the scope and duration of the search. Far from specifying the place to be searched and the persons or things to be seized, the Patriot Act is a many-page-long permission slip to search and seize everywhere and anywhere for four years and beyond, guided not by court-validated standards of evidence but by Justice department hunches and racially inflected intuitions. It therefore resembles the pre-Revolutionary Writs of Assistance issued by the British king, which enabled royal officers in the port of Boston to search houses at will for smuggled goods.41
Importantly, the Patriot Act resembles the Writs not only in its dilution of probable cause and in its perilous lack of specificity but also in a third key feature: it permits officers of the executive branch to conscript residents and passers-by into assisting in the search. Opposition to the Writs of Assistance—which began with a fiery speech by James Otis in a Massachusetts courtroom—was credited by John Adams with igniting the American Revolution: “there the child Independence was born.”42
The grass-roots aversion to being conscripted into the sweeping intelligence gathering of the Patriot Act coincides with the verdict reached in a pre-9/11 Fourth Amendment case in which a bystander was enlisted into a police action. Judge Jon Blue of the Connecticut Superior Court ruled that the act of unwarranted “seizure” applies not just to a person arrested without warrant but also to the person forced to assist: “It is a misuse of power in modern society for an agent of the state to . . . draft a citizen off the street and impress him into [hazardous duty]. Our security does not demand that the government be given such a power.”43
Judge Blue was speaking about physically hazardous police duty, but his words appear to apply as well to morally hazardous police duty that involves abridging the rights of fellow residents. Librarians, local police, bankers, brokers, and physicians all stand in danger of being subjected to an act of seizure by the federal government.
Sorting out the Writs of Assistance in the pre-Revolutionary period took time: though their tyrannical and invasive power would in the long run be curtailed by the creation of a new country armed with the Fourth Amendment, the short run was not without setbacks: James Otis lost the case in which he made the speech that so inspired Adams and the residents around Boston Harbor. Otis himself was physically beaten by royalists and, according to his sister, eventually died from those wounds.44
Sorting out the legal status of the Patriot Act writs of assistance may also take time. Though the United States Constitution prohibits acts that the Patriot Act licenses, and though the Patriot Act’s lack of legislative history may invalidate it as “piece of legislation,” for the time being it appears to empower the federal government not only to call on the country’s residents for assistance but—as in the case of the suspicious activity reports—to impose criminal and civil penalties on those who fail to assist.
If two legal provisions conflict, one of them constitutional and one legislative, the constitutional provision takes precedence, a principle reiterated throughout the resolutions. Scores of towns and cities remind their employees that their first obligation is to the United States Constitution: in the words of San Juan, Washington, “the paramount responsibility of local law enforcement personnel, and appointed and elected government offices” is to uphold “the solemn oath they have taken to preserve, uphold, protect, and defend the Constitution of the United States and the State of Washington Constitution.” Many resolutions express confidence that defending the United States against terrorism is compatible with a rigorous standard of civil liberties; and some call attention to the fact that the Constitution and the Bill of Rights, far from being premised on peace, were themselves written against a background of bloodshed. Some resolutions skillfully elaborate the primacy of constitutional law over statutory law: Oroville, Washington, for example, cites Article 6 of the Constitution that requires laws and treaties to be made in conformity with the Constitution; it also cites the Marbury v. Madison ruling, “all laws which are repugnant to the Constitution are null and void.”
But until Congress repeals the Patriot Act, or until a court rules it unconstitutional, resisters may be vulnerable to federal penalties or detention that the rest of us may not even hear about.45 The 238 resolutions collectively register the legal complexity of the refusal to assist. The guidelines they provide fall into three distinguishable tiers. One set of resolutions states that public employees (or in some cases, both employees and residents) should continue to uphold constitutional rights. A second set of resolutions is more explicit: they state that city officials should continue to uphold constitutional rights and decline to assist the federal government, even if asked. Within this second set, some towns and cities flatly recommend declining assistance whereas others stipulate that officials should “decline assistance as far as it is legally possible to do so.” A third set—consisting at present of at least one town, Arcata, California—is yet more explicit: residents should decline to assist any act that entails violating a fellow resident’s constitutional rights and the town itself will cover the resister’s legal expenses, should the federal government try to impose a criminal charge. Arcata was the first place to pass an ordinance prohibiting “employees” from “assisting or voluntarily co-operating.”
To be sure, trouble may lie ahead: even if the courts issue a ruling, the initial ruling may not uphold the resisters. A number of the resolutions prepare for the eventuality of a negative ruling by explicitly stipulating that if a court invalidates any phrase or clause of the resolution, the rest of the resolution remains in force (Gaston, Oregon; Lane County, Oregon; Lansdowne, Pennsylvania; New Haven, Connecticut; Amherst, Massachusetts; Madison, Wisconsin; the July 2003 supplement to the Ann Arbor, Michigan, January 2002 resolution; Arcata, California).
So far, however, both Congress and the courts appear to be listening attentively (and not punitively). Various congressmen and senators have initiated bills to nullify or limit specific provisions of the Patriot Act. In July 2003, the House passed an amendment to the 2004 Appropriations Bill that withholds all federal funding from section 213 (the provision that allows the Justice Department to search a house without notifying the resident). The sudden disappearance of federal funding will (if also passed by the Senate and if the House and Senate together override a presidential veto) increase the executive branch’s reliance on local co-operation for carrying out section 213, the very thing the local resolutions promise to withhold. If Attorney General Ashcroft’s August 2003 visit to sixteen cities was motivated by any single event, it was surely this surprising withdrawal by the House of federal funding from the “sneak and peak” provision of the Patriot Act;46 it was almost the first time since 9/11 that the executive branch felt it needed to make a case for itself to the wide population.47 While the Justice Department has tried to portray resistance to the Patriot Act as a liberal complaint, the resisters repeatedly describe themselves as occupying positions across the political spectrum. The amendment to stop funding section 213, for example, was introduced by the conservative Republican Butch Otter of Idaho. Passed by a vote of 309 to 118, it was affirmed by “almost all Democrats and more than half of all Republicans.”48
Legislative initiatives now pending in the Senate include the “Protecting the Rights of Individuals Act” (which proposes the most comprehensive modifications of the Patriot Act);49 the SAFE Act (which exempts librarians from section 215, narrows the Justice Department’s access to other records under 215, restricts federal use of the section 213 “sneak and peak” provision, and increases the “probable cause” requirement for surveillance);50 the “Patriot Oversight Restoration Act” (which makes various provisions previously exempt from the sunset clause newly subject to it, so that they will automatically cease to be in effect on December 31, 2005, unless Congress, upon reviewing them, explicitly acts to renew them);51 the “Domestic Surveillance Oversight Act” (which requires the Justice Department to increase its level of reporting to Congress about the use, under the Patriot Act, of the Foreign Intelligence Surveillance Act);52 the “Library, Bookseller, and Personal Records Privacy Act” (which makes it harder for the executive branch to obtain the records of a person’s reading habits or business transactions using section 215 of the Patriot Act);53 and the “Restoration of Freedom of Information Act” (which returns to the population their right to obtain information about the government’s activities, temporarily lost under the Homeland Security Act and potentially lost under Patriot Act II).54
Often when legislators introduce these proposed changes, they directly credit the localities. In October 2003, for example, Congress began a series of hearings to assess the Executive Branch actions under the Patriot Act. The hearings opened with a salute to the localities by Senator Patrick Leahy (who noted what was, by late October, 190 local resolutions in 34 states) and by Senator Ted Kennedy (who observed, “Rarely in recent years have the activities of the Justice Department been so often at the forefront of public discussion, so controversial, and so much in need of public scrutiny”).55 The House vote defeating funding for section 213 was described by Congressman Dennis Kucinich as a direct response to the local resolutions: “This action spoke to the anxiety of millions of Americans who believe the Patriot Act must be repealed or revised to restore fundamental civil liberties to this nation.”56 As telling as the influence of the town resolutions on the congressional rollback of the Patriot Act is the fact that new legislation dreamed up by the Justice Department now either never reaches the floor of Congress (as is so far true of Patriot Act II)57 or if brought there is soundly defeated (the unanimous Senate vote in early July 2003 to defeat the Pentagon plan for cyber-surveillance entitled “Terrorism Information Awareness”).
Like the recent actions of Congress, the recent actions of the courts echo the concerns of the local resolutions. In the first two years after 9/11, the federal courts appeared to support the actions of the executive branch: they tended to issue rulings that upheld executive actions or else to decline cases that contested them.58 But in December 2003 two federal courts—the Second Circuit U.S. Court of Appeals in New York and the Ninth Circuit in California—each issued rulings declaring acts of detention carried out by the Bush administration unlawful.59 Though not addressing the legality of the Patriot Act, the courts objected to executive branch actions on the same grounds voiced throughout the town resolutions: the violation of separation of powers60 and the denial of due process to citizens and noncitizens alike.61 Like the local resolutions, the two courts acknowledged the real dangers of terrorism while insisting that it is by preserving structures of governance (separation of powers and civil liberties), not by suspending them, that terrorism will be defeated.62 In late January 2004 a federal court in Los Angeles ruled one section of the Patriot Act unconstitutional: the judge objected to the provision making it a crime to provide “expert advice and assistance” to terrorists on the ground that the phrasing is so vague as to give the Justice Department license to interfere with First Amendment speech guarantees. How the courts will rule in the future is, of course, not clear.
In advance of these crucial, but far from final, acts by Congress and the courts is the steady, confident spread of the local resolutions. As noticed at the outset, beginning in the winter of 2001–2002, it took five months for the first five resolutions to come into being; in the winter of 2003–2004, five or more new resolutions come into being almost every week. Whether the resistance to the Patriot Act gains more and more momentum or instead gets derailed, the town resolutions remind us that the power of enforcement lies not just with local police but with all those who reside in cities, towns, villages, isolated byways, and country lanes. Law—whether local, state, federal, or constitutional—is only real if, in the words of Patrick Henry, the rest of us will “put our hands to it, put our hearts to it, stand behind it.” After hearing a recent speech at Harvard Law School detailing the many ways immigrants in this country have been brutalized since 9/11, a frustrated audience member asked the lecturer, “There must be a law or a constitutional provision that can stop this! What is it? What is the thing that can constrain Bush and Ashcroft?” The speaker, David Cole, repeated back the question and answered it: “What is the thing that can constrain Bush and Ashcroft? We are.”
1 R. Bhaskar, who urged me to read the Patriot Act soon after it was passed, made this observation about sufficiency.
2 For a complete chronological list of the towns and states that have passed resolutions, as well as the text of each resolution, see the Web site of the Bill of Rights Defense Committee at www.bordc.org. Quoted passages from the resolutions throughout this essay are cited from this Web site.
3 “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 Fed. Reg. 57, 833 (November 13, 2001) and “National Security, Prevention of Acts of Violence and Terrorism Authorization,” 66 Fed. Reg. 55, 61 (October 31, 2001).
4 For these reports, as well as denials by government officials, see the lengthy studies by Don Van Natta Jr., “Questioning Terror Suspects in a Dark and Surreal World,” The New York Times, March 9, 2003; and Dana Priest and Barton Gellman, “U.S. Decries Abuse but Defends Interrogation,” The Washington Post, December 26, 2002. The information from Bagram and Diego Garcia includes reports that prisoners were forced to wear black hoods, subjected to extreme temperatures, forced into painful postures for many hours, kept naked, deprived of sleep, hung by their hands from the ceiling, withheld painkillers despite serious injuries such as a gunshot wound in the groin, and questioned in a building flying a false flag. Even in Guantánamo Bay, where interrogation procedures are believed to be less abusive, 20 have attempted suicide. Ten U.S. security officials were among those who gave such reports.
6 Controversial provisions of the Patriot Act are braided together with unobjectionable provisions, such as Title VI, which arranges for financial support for the families of public officers who were victims of terrorism.
7 See Charles Fried, “Privacy,” 77 Yale Law Journal 475 (1968), 482.
9 As the local resolution of Evanston, Illinois, summarizes it, “Privacy is essential to the exercise of free speech, free thought and free association.”
10 The Constitution includes a secrecy provision for congressional proceedings (it has no similar provision for the executive or judicial branches).
11 The Constitution envisions the president executing (rather than making or issuing) laws and therefore does not require the president to record the deliberations that led to his making or issuing a law. When the president sees the need for new legislation, he will (according to I, 3) report that need to Congress, which will then go on to consider the creation of that legislation and record the proceedings in their journal.
12 Cass Sunstein, “New Perspectives in the Law of Defamation,” 74California Law Review (1986) 889, 892, 894, 897. See also Alexander Meiklejohn, Free Speech and Its Relation to Self-government (New York: Harper & Row, 1948).
13 The section pertaining to the monitoring of private records that is most frequently cited in local resolutions is section 215—often the only section explicitly mentioned by number. At the other extreme are cities like Ashland, Oregon, which lists all of the sections enumerated here except for section 203 (which is included in Ann Arbor’s July 2003 postscript to its original city resolution). In the period between the passage of the first resolution—Ann Arbor’s, on January 7, 2002—and today, when more are being passed even as this article goes to press, the resolutions have tended to provide an increasingly complete analysis, acting as readers’ guides to the Patriot Act. See also, for example, the lucid analysis of Brookline, Massachusetts. In their thoughtfulness and passion, the local resolutions collectively recall the pamphlet wars in the time of the Constitution.
14 Michael T. McCarthy reminds us that at the time the Patriot Act was going through Congress, the Senate was partially closed down due to the anthrax scare: “Recent Development: U.S.A. Patriot Act,” 39 Harvard Journal on Legislation 435 (Summer 2002), p. 451.
15 The impassioned Oroville, Washington, resolution uses similar phrasing, though it does not go on to speak of martial law.
16 Closely related is the 1976 case Mathews v. Diaz, which upheld the extension of the Bill of Rights to illegal aliens.
17 Securities Industry News, May 27, 2002.
18 The Review of Securities & Commodities Regulation, June 12, 2002. Writing in 29 New Jersey Law Journal (“New Anti-Money Laundering Programs,” July 2002), Geoffrey Connor observes that a rule of thumb emerges: “When in doubt, file a suspicious activity report.” Safe harbor is also granted by the Patriot Act to other citizens who are asked to turn over records. For example, section 507, in a subsection on “Disclosure of Education Records,” states, “An educational agency or institution that, in good faith, produces education records in accordance with an order issued under this subsection shall not be liable to any person for that production.” Sections 215 and 508 similarly provide “safe harbor” to citizens who assist the executive branch in intelligence gathering.
19 A lengthened list was issued on December 17, 2002.
20 “In the Public Interest: Report of the Ad Hoc Faculty Committee on Access to and Disclosure of Scientific Information,” Massachusetts Institute of Technology (June 2002), pp. 1, 19, 20, 41. As the report notes, the Patriot Act imposes criminal penalties only on individual violators of its rule, but pending legislation extends the criminal penalties to institutions (p.13).
21 “In the Public Interest,” p. 40. MIT does permit classified research in off-campus sites such as Draper Laboratory and Lincoln Laboratory.
22 “In the Public Interest,” p. 14. Like the local resolutions, the MIT report not only defends but celebrates the presence of foreign nationals within the university walls: “Openness enables MIT to attract, educate, and benefit from the best students, faculty and staff from around the world. . . . access to research and knowledge outside the United States is critical to our own progress. Over the course of many years, immigrant scientists as well as foreign visitors and students have contributed enormously to the American educational and scientific enterprises. . . . No foreign national granted a visa by the United States government should be denied access to courses, research or publications generally available on campus” (15).
23 They worked through the Wisconsin Democrat Russell Feingold (the only senator who voted against the Patriot Act).
25 Starting in November 2001 (less than a month after the bill’s passage), notice appeared in the Portland [Maine] Press Herald, El Paso Times, Hartford Courant, San Jose Mercury News, (Arlington Heights, Illiniois) Daily Herald, St. Louis Post-Dispatch, Daily Oklahoman, (Dubuque, Iowa) Telegraph Herald, and scores of others.
26 The Washington Post reported “Ashcroft Derides Patriot Act Critics” (September 19, 2003) and The New York Times reported “Ashcroft Mocks Librarians” (September 16, 2003). (Italics added.)
27 Mao Tse-Tung, for example, was a librarian in 1918 when he worked under “the chief librarian of Peking University, who was one of the pioneer marxists of China” (Encyclopedia of World Biography, second edition, Gale Research, 1998).
28 Adam Clymer, The New York Times, December 12, 2002, p. 30. A follow-up study of Illinois libraries alone found no libraries contacted, but the national figures of 4 percent and 11 percent still stand. (Phone conversation with Leigh S. Estabrook, Director, Library Research Center, University of Illinois, Urbana, November 2, 2003.) The follow-up study also found that 29 percent of public libraries and 16 percent of academic libraries now have written procedures in place to guide librarians who are presented with a search warrant or a subpoena (Amanda Vogt, Chicago Tribune, December 18, 2003, p. C14). On the history on FBI inquiries into library records before 9/11, see the detailed account of Herbert N. Foerstel, a retired University of Maryland Librarian, Surveillance in the Stacks (Greenwood Press, l991). Foerstel traces the FBI’s many self-righteous denials of library surveillance, the librarians’ own record of FBI visits, and the 3,000 pages of FBI documents that eventually surfaced with the help of the Freedom of Information Act (p. 51).
29 In October 2001 Attorney General Ashcroft sent a memo to many government departments telling them that if they declined to answer Freedom of Information Act requests, the Justice Department would support them. The draft of Patriot Act II (“Domestic Security Enhancement Act of 2003”) seeks to increase the Justice Department’s own exemption from Freedom of Information Act rules: section 201 complains about having to go through time-consuming court procedures to defend its withholding of information about detainees, time better spent tracking down terrorists. It asks for explicit authority to regularly withhold information about detainees until after criminal charges are pressed.
30 To the five steps outlined above, Attorney General Ashcroft added a sixth on his sixteen-day tour: claim that you’re not actually using the legislation (as in the case of section 215) while simultaneously claiming that it’s only because you have been using this excellent tool extensively that the country hasn’t had more terrorist attacks since 9/11.
31 Many sections of the Patriot Act conflate crime and terrorism (for example, sections 203, 403, 405, 413, 813), allowing the Justice Department to use all the tools against each in its pursuit of the other, while also—as in the case of Bill Olds—playing a shell game with the public to hide its own actions and prohibit any protest.
32 The Hartford Courant, November 3, 7, 8, 10, 12, 21, 2002; Library Journal, December 15, 2002. Phone conversations with Bill Olds (December 18, 2002, January 4, 2003); conversation with Karen Hunter at The Hartford Courant, December 19, 2002.
33 Sometimes (as in the case of Seattle) the resolution will arrange for the public posting of the Bill of Rights.
34Alternatively, the local resolution may advise librarians (and other local businesspeople) to “refrain . . . from keeping records of purchases or borrowings” (as in the case of Woodstock, New York); or may support House Resolution 1157, the “Freedom to Read Protection Act of 2003,” to exempt libraries and bookstores from inclusion in the Patriot Act (as in the case of San Mateo, California).
35 When the locality itself possesses the information, it is directed to make that information available: the resolutions of Oxford, Ohio, and Rio Arriba, New Mexico, for example, direct universities and secondary schools to inform any student whose record has been seized by the federal government that the act has taken place.
36Intelligence-gathering is acceptable, observes Denver, only if it is “regularly and rigorously examined for compliance” with the Constitution.
37 Some localities (such as Madison, Wisconsin) urge that the entire act be repealed.
38 The “police” are almost always explicitly named. Other professions are sometimes named—as in Provincetown, Massachusetts’s explicit instruction to librarians—but are more often covered by the general rubric “town employees.”
39 David Cole, Lecture on the Treatment of Immigrants following 9/11, Harvard Law School, September 24, 2003. Two of the four were acquitted. Of the two to whom charges stuck, one was found guilty of trying to dismantle the Brooklyn Bridge with an acetylene torch.
40 “Self-interest,” though certainly threatened by the Patriot Act, does not appear to distinguish the Patriot Act from other forms of executive action. As the worldwide loss of affection for the American people attests, it is against the population’s self-interest to become a country that carries out executive-driven wars based on false information, that detains 5,000 immigrants and foreign visitors without charges, and that allegedly tortures prisoners.
41 Nat Hentoff, a tireless critic of the Patriot Act and other post-9/11 abridgments of rights, also points out the resemblance between the Patriot Act search powers and the Writs of Assistance on the basis of “generality” (The Washington Times, August 4, 2003). See also Hentoff’s The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2003).
42 John Adams, Letter to William Tudor, March 29, 1817 (describing Otis’s February 1761 speech); in Life and Works of John Adams, ed. C.F. Adams (Boston: Little, Brown, and Co., l856), vol. 10, 247-48.
43 Jon C. Blue, “High Noon Revisited: Commands of Assistance by Peace Officers in the Age of the Fourth Amendment,” 101 Yale Law Journal (1991–1992), 1475, 1485, 1487. My thanks to Akhil Amar for directing my attention to Judge Blue’s ruling.
44 Mercy Otis Warren, History of the Rise, Progress, and Termination of the American Revolution, ed. Lester H. Cohen (Indianapolis: Liberty Classics, 1805, 1988), vol. 1, p.49-51. See alsoLife and Works of John Adams, vol. 10, p. 276.
45 Penalties may fall on individuals or instead may be imposed on entire towns. Congressional Representative Tom Tancredo proposed an amendment to the 2004 Appropriations Act to withhold federal funding from any town that refuses to assist the federal government in its surveillance procedures. The amendment was defeated, 322 to 102.
46 On the floor of the Senate, Russell Feingold gave just this interpretation to the Justice Department’s sudden defensiveness. 149 Congressional Record, Senate 12377 (vol. 149, n.138).
47 The Bush Administration has tended to proceed on the basis that no explanations are needed. Indeed, President Bush stated to Bob Woodward in an interview, “I’m the commander—see, I don’t need to explain—I do not need to explain why I say things. That’s the interesting thing about being the president.” (The Washington Post, November 19, 2002, p. A1). Attorney General Ashcroft’s sixteen-city tour to address local police and prosecutors reminds us that local law enforcers do not simply follow orders but must be individually convinced of the justness of the law they are being asked to uphold, especially if it appears to violate constitutional law.
48 This summary of the vote was made by Representative Bernie Sanders (D-VT), a fierce opponent of the Patriot Act, especially section 215.
49 S.1552, proposed by Senator Ron Wyden (D-OR) and Senator Lisa Murkowski (R-AK).
50 Co-sponsored by Senator Larry Craig (R-ID) and Richard Durbin (D-IL).
51 S.1659, sponsored by Senators Patrick Leahy (D-VT), Larry Craig (R-ID), John Sununu (R-NH), and Richard Durbin (D-IL).
52 S.4356 sponsored by Senators Patrick Leahy, Arlen Specter (R-PA), Charles Grassley (R-IA), and John Edwards (D-NC).
53 S.1507, sponsored by Senators Russell Feingold (D-WI), Edward Kennedy (D-MA), and Richard Durbin (D-IL).
54 S.609, sponsored by Senator Patrick Leahy.
55 “Hearing of the Senate Committee on the Judiciary on Criminal Terrorism Investigations and Prosecutions,” October 21, 2003, chaired by Senator Orrin Hatch (R-UT). The November installment of the hearings was on “Post–September 11th Civil Rights Issues.”
56 December 8, 2003, “Conference Report on H.R.2673, Consolidated Appropriations Act, 2004,” 149 Congressional Record House 12766 (vol.149, no. 175). Kucinich was a co-sponsor of the amendment.
57 During the October 21, 2003, congressional hearings on the Patriot Act, Senator Diane Feinstein reported that her mail on the Patriot Act was presently 21,434 letters against and 6 letters in favor. According to Feinstein, many of the negative letters, though ostensibly addressed to the content of the first Patriot Act, more accurately describe the extreme provisions arranged for in Patriot Act II. While Patriot Act II has never been brought before Congress, the Bush administration has tried to embed various clauses inside other bills, such as a clause allowing the FBI (without court approval) to require records from more businesses than had been included in the original Patriot Act. This provision was folded into the 2004 Intelligence Authorization Act, approved by Congress in November 2003. While the bill did pass, the vote was much more split (263 to 163) than would have occurred without the provision, as an ACLU legislative counsel explains: “It prompted more than a third of the House, including 15 conservative Republicans, to change what is normally a cakewalk vote into something truly contested” (Timothy Edgar, quoted by Jim Lobe, Inter Press Service, November 21, 2003).
58 Siobhan Roth, writing in New Jersey Law Journal (December 29, 2003), gives examples: “the Second Circuit decided Nov. 7 that the government may hold material witnesses indefinitely and without charges for grand jury investigations”; “the D.C. Circuit ruled on June 17 that the Justice Department does not have to release the names of anyone detained in the post–Sept. 11 dragnet because of national security concerns”; “the Third and Sixth Circuits are split on whether immigration hearings must be open to the public, [and the] Supreme Court has declined to consider the issue.”
59 The Wall Street Journal announced that Bush “was dealt a setback,” The New York Times called them “twin blows,” New York Law Journal called them “stinging rebukes;” The Bergen Recordcalled them “direct” and “sweeping” rebukes.
60 The Justice Department has justified holding the U.S. citizen Jose Padilla in a Navy prison without charge and without access to a lawyer by saying that President Bush, as commander in chief, had declared him “an enemy combatant”; the Second Circuit ruled that no citizen can be detained without due process unless explicitly authorized by Congress. The court concluded that Padilla was not, as asserted by the Bush administration, “captured” in a combat zone but was peaceably arrested on U.S. soil and must therefore be treated under rules written to address crime, not rules written for war.
61 The U.S. citizen Jose Padilla in the Second Circuit ruling and the foreign citizen Salim Gherebi (and by extension, all 660 detainees in Guantánamo Bay) in the Ninth Circuit ruling.
62 The Second Circuit argued, “This case involves not whether those responsibilities [the responsibilities the president and law-enforcement officials bear for protecting the nation] should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress.” The Ninth Circuit judges observed, “We share the desire of all Americans to ensure that the executive enjoys the necessary power and flexibility to prevent future terrorist attacks. However, even in times of emergency—indeed, particularly in such times—it is the obligation of the judicial branch to ensure the preservation of our constitutional values and to prevent the executive branch from running roughshod over the rights of citizens and aliens alike” (Transcript, reprinted in The New York Times, December 19, 2003).