On the day that news of Saddam Hussein's capture filled the media, December 13, President Bush quietly signed new FBI spy powers into law. The move, which broadens the government's power to track citizens' financial transactions, tucked a major expansion of the USA PATRIOT Act into the giant 2004 Intelligence Authorization Act.
By using what are called National Security Letters, the FBI can request financial records from banks without demonstrating “probable cause” that terrorism or any crime has been committed and without gaining permission from a judge. The new law now extends this power to records from stockbrokers, car dealers, credit card companies, airlines, insurance agencies, jewelers, the Postal Service, and most other businesses, and covers both financial and non-financial records. These businesses are forbidden from informing their clients that they have given the information to the FBI, and, under the new law, the FBI is no longer required to report to Congress how many times it has used the letters.
While the security letters are not new, until passage of the 2001 PATRIOT Act, they could be used only when the FBI had specific evidence linking a suspect to espionage. Under the PATRIOT Act, they can be used in any investigation if it is “relevant” to national security. Last spring, the Bush administration tried unsuccessfully to allow the CIA and the military the right to issue such subpoenas, according to Wired magazine.
Expansion of National Security Letters was one of the elements included in a so-called PATRIOT Act II drafted by Attorney General John Ashcroft's staff. When the draft, which included government power to strip citizenship from Americans accused of terrorism, was leaked to the public by the Center for Public Integrity, it prompted an outcry and the Bush administration publicly backed away from it.
The new law comes as several appeals courts ruled against elements of the Bush administration's war on terror. On December 18, a panel of the Second Circuit Court of Appeals in Manhattan ruled 2 to 1 that the government cannot hold a U.S. citizen, Jose Padilla, seized on U.S. soil without being charged with a crime and without access to a lawyer.
The same day, a panel of the Ninth Circuit Court in San Francisco rejected the government's claim that it can hold the 660 men imprisoned at Guantanamo indefinitely without charging them with crimes or providing lawyers.
Judge Stephen Reinhardt wrote in the majority opinion, “Even in times of national 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.”
On December 3, the Ninth Circuit overturned parts of the 1996 anti-terror law that made it a crime to provide “material support” to any organization labeled terrorist by the State Department. The law was originally passed after the Oklahoma City bombing, under President Clinton, but the “material support” provision has been a favorite method of the Bush administration to obtain convictions in the war on terror. The court ruled that the provision blurs the line between crime and constitutionally protected freedom of expression, and that to be convicted, people must know they are supporting terrorism.
January 26, a court for the first time struck down an element of the
PATRIOT Act. A federal district court in Los Angeles ruled that the
law's ban on providing “advice or assistance” to a terrorist group was
so vague as to violate the First Amendment.
These rulings are likely to be appealed to the Supreme Court. The court is also hearing an appeal by an immigrant detained in connection with the September 11 attacks whose case, M.K.B. v. Warden, has been kept secret from the public. A coalition of 23 media organizations has joined the appeal, requesting that the contents of the case be made public. Until recently, every aspect of the case, even its existence, was secret. The case came to light, according to the Associated Press, because of a mistake at the Eleventh U.S. Circuit Court of Appeals, which briefly made records of the case public.
The Supreme Court has agreed to hear the case of Yasser Hamdi, who was declared an “enemy combatant” and held by the Bush administration without charge in a naval brig. Days later, the court refused to consider an appeal of a lower court decision that upheld the Bush administration's refusal to release names of foreigners rounded up and detained after September 11.
Carolyn McConnell is senior editor at YES!