Suggestions for responding to U.S. Attorney form letter defending USA PATRIOT Act
This page includes the following sections:
- Background
- Talking Points (without discussing substance of letter)
- Talking Points for Countering Letter's Misleading Claims
In May 2004, United States Attorney for Massachusetts Michael J. Sullivan sent an unsolicited form letter defending the USA PATRIOT Act to every city council, town select board, and police chief in the Commonwealth: http://www.bordc.org/usatty.pdf. So far we have no evidence that U.S. Attorneys elsewhere have broadcast such letters.
The arguments in the letter closely follow those of the DOJ's USA PATRIOT Act public relations web site, www.lifeandliberty.gov. Enclosed with the letters was a May 10, 2004, Wall Street Journal op-ed, "'The Spirit of Liberty': Before attacking the Patriot Act, try reading it," by Michael B. Mukasey, chief judge of the U.S. District Court, Southern District of New York, http://www.opinionjournal.com/forms/printThis.html?id=110005059.
In addition to sending letters, the U.S. Attorney's Office has sent staff to Massachusetts cities and towns to argue against resolutions opposing parts of the USA PATRIOT Act. In the case of Groton Town Meeting, the resolution prevailed.
We can assume that U.S. Attorney Sullivan's goal is to call into
question the "22" Massachusetts resolutions that have passed (NB:
There have been 45.) and to prevent further erosion in support for
the Act, especially in the form of resolutions.
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Talking Points (without discussing substance of letter)
Although we have plenty of suggestions for correcting misunderstandings brought on by the letter, it's probably not worth dignifying the letter's statements with a response unless you are discussing the letter with someone who read the letter as though it were factual. We believe a better option is to point out that the letter:
- Is a form letter sent to all 351 Massachusetts cities and towns, and therefore does not recognize the care and thought with which your local government addressed (is addressing) this issue.
- Is out of step with the opinion of the criminal justice community.
Both the letter and the accompanying article suggest that anyone
who opposes the USA PATRIOT Act hasn't read it or doesn't understand
it. However, a recent Thompson Wadsworth survey of criminal justice
experts reveals widespread concern about the USA PATRIOT Act. Of
those surveyed:
- 95% felt that the act was "passed too quickly and/or without adequate analysis on its impact on other laws and public policy."
- 74% stated that provisions of the Patriot Act violate individual rights.
- 68% felt that existing laws should be used instead to protect the U.S. from terrorism.
For more information, view the complete survey results, or read the Thompson Wadsworth press release.
- Does not mention that part of the USA PATRIOT Act has been declared "unconstitutionally vague" by a federal judge. Last January, federal Judge Audrey Collins declared unconstitutional a portion of the USA Patriot Act that bars giving expert advice or assistance to groups designated international terrorist organizations.
- Is limited to the USA PATRIOT Act, and doesn't touch on many other important points made in your resolution. (Choose any examples that apply.):
- In the cases of the Guantanamo prisoners and U.S. citizen Yaser Esam Hamdi, the U.S. Supreme Court has upheld your (city council, town select board) assertions that the Executive Branch may not circumvent the constitutional system of checks and balances by indefinitely detaining so-called "enemy combatants" and Guantanamo prisoners without providing access to the courts.
- Your community does not support racial and ethnic profiling, or unlimited detentions without charges or access to an attorney, which thousands of Arab, Muslim, and South Asian men experienced after September 11. In several reports, the Justice Department's own Inspector General has condemned the DOJ's handling of those men, from their excessively long detentions without charge or access to attorneys in many cases to their abuse by prison guards. There are many examples, including Purna Raj Bajracharya: http://kennebecjournal.mainetoday.com/news/local/787220.shtml.
- Racist programs such as "special registration" are not effective at preventing terrorism. In 2003, special registration cost taxpayers more than $360 million in 2003 without finding any terrorist ties among the more than 87,000 men who voluntarily appeared for fingerprinting, photographing and questioning.
- Does not touch on many other innocent people who have been unjustly targeted for First Amendment activities or by mistake because of the lack of checks and balances: Examples include Brandon Mayfield, artist Steve Kurtz (recently indicted for use of harmless biological agents in his Mass MOCA art installation), Drake University National Lawyers Guild case in which four people received grand jury subpoenas with gag orders from a member of the FBI Joint Terrorism Task Force, and the case of U.S. Army Intelligence demanding a roster of attendees of a University of Texas Law School forum on Shari'a law and the rights of women.
- Is stuck on October 26, 2001, when the USA PATRIOT Act was rushed through Congress. Since then, most members of Congress have reconsidered their votes for the USA PATRIOT Act, admitted that they had not read it before voting, claimed they'd made a mistake, and in some cases apologized to their constituents for voting in favor of the Act. Last July, by a 309-118 bipartisan vote, the House approved an amendment to de-fund "sneak-and-peek" searches authorized in Section 213. Several bipartisan bills to amend parts of the USA PATRIOT Act and other antiterrorism laws and policies are now before Congress.
Talking Points for Countering Letter's Misleading Claims
- We are not concerned about the entire USA PATRIOT Act, but merely a few provisions that we feel were passed in haste and need to be fully reviewed.
- Claims information sharing between intelligence and law enforcement before the USA PATRIOT Act was "illegal." According to the White House, the so-called "wall" was an artificial one: http://www.whitehouse.gov/news/releases/2004/06/20040626-13.html. Passing a law is the wrong way to go about dismantling an artificial wall, and according to many current and former members of the intelligence community, no progress has been made in information sharing since the USA PATRIOT Act was passed.
- Many of the highest-profile terror suspects - including Zacarias Moussaoui, Richard Reid, and John Walker Lindh - were caught without any reliance on the new provisions of the Act. Richard Reid's terrorist act was prevented by flight attendants and passengers, not the USA PATRIOT Act.
- The 163 convictions and guilty pleas have used a controversial USA PATRIOT Act provision known as "material support." On December 3, 2003, the U.S. Court of Appeals for the Ninth Circuit declared unconstitutional significant parts of a criminal statute barring "material support" to terrorist organizations, and rejected the government's interpretation of the statute as imposing liability on "moral innocents" because it does not require that the person(s) found guilty of providing material support to a terrorist organization realized that the group was or eventually would be named as such by the Administration. In an Idaho case that was said to test the limits of the USA PATRIOT Act's "material support for terrorism" provision, the jury acquitted the student Sami Omar Al-Hussayen of the charge. http://newstandardnews.net/content/?action=show_item&itemid=528. Al-Hussayen had spent nearly 500 days in jail before the prosecutors dropped all remaining charges.
- Mr. Sullivan's letter mentions "terrorist cells in Buffalo, Detroit, Seattle, and Portland." Many articles have been written contradicting the DOJ's claims about these so-called cells and about the DOJ's conduct in some of the cases, such as the Detroit case: http://www.phillyburbs.com/pb-dyn/news/1-07032004-325971.html. In the Buffalo case of the "Lackawanna Six," an attorney for one defendent said he advised his client to accept a plea agreement despite strong proof of his innocence because the prosecutors hinted that if his client did not do so, he could be declared an "enemy combattant." http://www.pacifica.org/programs/dn/031204.html.
- As to the "515 individuals with links to the September 11th investigation," Mr. Sullivan leaves out the important fact that none of these individuals were charged with terrorism related offenses. The vast majority of these individuals were deported based on immigration violations or relatively small crimes.
- Mr. Sullivan also neglects to say how many of to the "18,000 subpoenas and search warrants" would have been issued without the USA PATRIOT Act. Law enforcement clearly had the power to issue subpoenas and warrants prior to the Act.
- Mr. Sullivan misleads the reader about Section 215. He says that "library records have long been obtainable pursuant to Grand Jury subpoenas" and now "similar records" are obtainable by the order of "judges sitting in a specialized court in Washington." What Mr. Sullivan does not say is that there are significant differences between these two processes. First, While FISA Court members are District Court Judges, they are appointed to the FISA Court by the Chief Justice and have no confirmation hearings on that role, thus diminishing our proper system of separation of powers. Second, the threshold for obtaining such records is significantly lower in the FISA Court. Third, and most importantly, Grand Juries are a jury of American citizens. As we all know, the jury system is one of the hallmarks of protecting innocent people in our criminal justice system. You may want to read and print out the form that FBI agents use to request access to documents via the Foreign Intelligence Surveillance Court.
- Mr. Sullivan fails to explain how section 218 of the Act "expressly permits the full coordination between intelligence and law enforcement." In fact, all this section does is amend two sections of FISA, § 1804(a)(7)(B) and § 1823(a)(7)(B), which describe the threshold for obtaining court authorization for electronic surveillance and physical searches, respectively. These sections deal with investigating known suspects and nowhere in the sections does FISA require, or even encourage, information sharing. If information sharing has happened in relation to these two FISA sections, it is certainly not a result of the USA PATRTIOT Act section 218. Also, it is important to note that while a court did rule that these provisions of FISA were constitutional, no court has decided whether the sections, as amended by the USA PATRIOT Act, are still constitutional. Print out the language, or bring a copy of the USA PATRIOT Act and the relevant sections of the U.S. Code: http://uscode.house.gov/search/criteria.php
- Mr. Sullivan mistakenly cites that "only 22" Commonwealth communities have passed resolutions against the USA PATRIOT Act. In fact, 45 communities, double the number he cites, have passed resolutions. While this number is still a small percentage of the overall number of towns in the Commonwealth, it demonstrates broad public concern over the USA PATRIOT Act. It does not mean that the communities that have not yet approved resolutions are overwhelmingly in favor the USA PATRIOT Act.
In conclusion, you might agree with Mr. Sullivan's suggestion for "citizens to get accurate information and decide on the facts for themselves." That is exactly what your community has done (is trying to do) through public forum and the passage of a resolution. You want to support efforts to prevent terrorism by ensuring that the tools that the U.S. government uses are just, so that innocent people truly have no reason to fear them.
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