Domestic Spying and PATRIOT Act Reauthorization

by Elenora Giddings Ivory

Whether we call it domestic spying, warrantless searches, eavesdropping wiretaps or terrorist surveillance, it still causes the same concern for our individual privacy and civil liberties. As Congress continues to debate the reauthorization of the PATRIOT Act, those with concerns for privacy and civil liberties continue to question if it is necessary to give up constitutional liberties in the name of security.

For those of you who continued to watch C-SPAN while you were wrapping your Christmas gifts, you saw the House and the Senate go back and forth about the extension of the PATRIOT Act that was due to expire on December 31, 2005. They ultimately reached a compromise and agreed to extend it until February 3, 2006. This second date has also come and gone with no long- lasting agreement between the Senate and the House. The PATRIOT Act is now on another five-week extension, so that the congressional leadership and the White House can work out disagreements.

The President wants to simply extend the Act as it is. The majority of the House has been willing to extend the original provisions of the Act as they were instituted shortly after the September 11, 2001 terrorist attacks.

Civil liberties advocates have all along raised concerns about the sections that would give blanket approval to unwarranted wiretaps on private citizens, as well as open and easy access to medical, library, telephone, internet usage and book purchases - just to name a few.

Earlier this month, the Senate Judiciary Committee requested that the Bush Administration produce what has been referred to as its classified legal opinions on the domestic spying program, for input into upcoming hearings. The Justice Department, and Attorney General Gonzales, is not pleased with this request and feels that the Committee is treading into security matters. The congressional committee is asking to see the documentation around the original intent of this program. What legal opinions led them to believe they had the authority under law to conduct such a program in the fight against terrorism?

Over the last month, the public has seen media stories on a 42-page document referred to as a "White Paper." Administration officials are reported to have said this information has already been released. However, one of the questions Senator Specter (chair of the Judiciary Committee), has voiced is about the eavesdropping surveillance. Is there a conflict with the 1978 Foreign Intelligence Surveillance Act (FISA) and its strict guidelines for intelligence wiretaps?

President Bush has defended warrantless-eavesdropping surveillance by saying that it would only be used to allow the National Security Agency (NSA) to carry out wiretaps on Americans' international communications. Senator Specter has questioned this assertion. This is where religious people and non-profit groups should raise serious questions. We are in frequent contact with overseas church operations through mail, phone, email and actual mission trip visits. Are these communications open to surveillance?

Our government system has three branches - executive, judicial, and legislative. Each branch has its responsibilities. We all learned very early in our grade school social studies class that American democracy is built on a system of checks and balances. Warrantless searches and surveillances ignore the checks and balances system when they do not go through a court approval process. It is possible to still get this approval even days after the action has taken place or begun; thereby avoiding a delay in a serious security threat. The President's broad power to order wiretaps without warrants in protecting national security will be part of ongoing congressional hearings as well as further debate on reauthorization of the PATRIOT Act.

According to a February 2, 2006 article in The New York Times, "The first Justice Department opinion is thought to have been written in late 2001 or early 2002 by John Yoo, a strong proponent of expanded presidential powers in wartime. The second opinion, officials said, was drafted by Jack Goldsmith, another senior department official who later left to teach at Harvard. It came in 2004 at a time some senior officials at the Justice Department were voicing concerns about the program's legal foundation and refusing to sign off on its reauthorization."

Concerns and questions about the legal foundation for the current surveillance programs is what is being sought by congressional committees and members. To get answers, the committee members would like to see letters, memos and perhaps even message pads. Does this classified information even contain answers to how the torture commands were given?

Attorney General Alberto Gonzales appeared before the Judiciary Committee on February 6, 2006 and said that President Bush has "inherent constitutional authority" to order surveillance of international communications between Americans in the United States and terrorist suspects abroad. In this new kind of war it is both necessary and appropriate to take all possible steps to locate the enemy and take all appropriate steps before they strike," Gonzales said. While thinking about this issue, we should remember the words of Benjamin Franklin, one of our nation's founders: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. (Benjamin Franklin - Historical Review of Pennsylvania)

Action

Contact your Senators to say that you have a real concern that privacy and civil liberties be protected. Call the Capitol switchboard at (202) 224-3121 and ask to speak with each of your Senators. Or email them through the PresbyAction Center. Immediate action is needed.

The TALON Program

"The TALON program was initiated by former Deputy Secretary Paul Wolfowitz in 2003 to track groups and individuals with possible links to terrorism. But according to portions of the database that were leaked to the media in December, the Pentagon has been collecting information on peaceful activists and monitoring anti-war and anti-military recruiting protests throughout the United States. Following public outcry over the domestic spying program, current Deputy Secretary of Defense Gordon England issued a memorandum on January 13 directing intelligence personnel to receive 'refresher training on the policies for collection, retention, dissemination and use of information related to U.S. persons.'"

"At least four of the incidences of surveillance uncovered were activities coordinated or supported by the American Friends Service Committee, a co-recipient of the Nobel Peace Prize in 1947. Founded by Quakers in 1917, the Service Committee began as a vehicle for conscientious objectors to the first World War to contribute to binding up the wounds of war: by building houses for war victims, feeding hungry children, and clothing the displaced. AFSC has historically felt called to witness against war and for changing the conditions that cause violent conflict."

"How can we speak of spreading democracy in Iraq while dismantling it here at home?" asks Joyce Miller, AFSC associate general secretary for justice and human rights. "Political dissent is fundamental to a free and democratic society. It should not be equated with crime."

"AFSC's work, always open and resolutely nonviolent, has been under government surveillance for decades. The Service Committee secured nearly 1,700 pages of files from the FBI under a Freedom of Information request in 1976. These show that the FBI kept files on AFSC that dated back to 1921. Ten other federal agencies kept files on AFSC, including the CIA, Air Force, Navy, Internal Revenue Service, Secret Service, and the State Department. The CIA has intercepted overseas mail and cables in the 1950s, and some AFSC offices (and even its staff's homes) have been infiltrated and burglarized in the late 1960s into the 1970s."

(Information on the TALON Program came from a Feb. 1, 2006 press release by the AFSC, entitled "Quaker Organization Seeks Pentagon Surveillance Files, American Friends Service Committee Says Government Spying on Peaceful Protesters Undermines Principles of Democracy."

Resources

Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism by David Cole; New Press, New York, NY.

The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States. W.W. Norton & Company, Inc.; ISBN )-393-32671-3 (pbk).

For a fictional view of domestic security, rent the Will Smith movie Enemy of the State. (132 min/color/R) A Jerry Bruckheimer production, directed by Tony Scott, co-starring Gene Hackman and Jon Voight.

General Assembly

USA PATRIOT Act: Encourages all levels of the church to support civil rights organizations engaged in monitoring the impact of the USA Patriot Act of 2001 on citizens and non-citizens alike, and to publicize abuses. Encourages all levels of the church to advocate for the passage of amendments of the USA Patriot Act that would limit wiretap authority, limit 'sneak and peek' warrants, limit business records warrants, limit use of administrative subpoenas with libraries, impose additional sunset clauses on several provisions, and modify the definition of 'domestic terrorism.' Affirms the right of all individuals detained by the United States government to judicial review and counsel, on a case-by-case basis. Direct the Presbyterian Peacemaking Program, the Presbyterian U.N. Office, and the Washington Office to continue to monitor and report to the church on the most significant developments in the 'war on terrorism' and on efforts to amend the USA Patriot Act. (Minutes, 2004, p. 880)

There should be no rush to renew aspects of the USA Patriot Act ... The clear division between intelligence and criminal investigation should be restored; and the wording of the renewed/revisited USA Patriot Act should grant the government only those powers that we, as a people acting through our representatives, actually intend that the government shall use. (Minutes, 2004, p. 819)

The 4th Amendment to the U.S. Constitution

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, and particularly describing the place to be searched, and the persons or things to be seized.