FC: USA PATRIOT update: "Moving toward a police state," by M.Ratner

From: Declan McCullagh (declanat_private)
Date: Tue Nov 20 2001 - 08:49:43 PST

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