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PATRIOT Act powers hidden in gag orders,
secret evidence
New York, New York, Aug. 19— The government
is using gag orders and secret evidence to keep the public in the dark
about its use of the USA PATRIOT Act to investigate Americans, the American
Civil Liberties Union said today.
In two legal challenges to controversial provisions of the USA PATRIOT
Act brought by the ACLU and other groups, the government has filed secret
evidence that it is refusing to disclose to the public and even to the
attorneys in the case.
“Our system of justice does not and should not tolerate the use
of secret evidence in deciding important constitutional questions, which
is why this tactic has been repeatedly rejected by the courts,”
said ACLU Associate Legal Director Ann Beeson.
Today, in its challenge to Section 215 of the USA PATRIOT Act, the ACLU
filed a motion to exclude classified portions of a government affidavit
that were provided only to the court. The government has asked the court
to consider this secret evidence in deciding whether to dismiss the
ACLU’s constitutional challenge to the law.
The lawsuit, filed in Detroit in July 2003, challenges the FBI’s
unprecedented power under Section 215 to access medical, library and
other private records without a subpoena or a warrant based on probable
cause. The judge has not yet ruled on the government’s pending
motion to dismiss the case.
In the second case, filed in New York in April 2004, the ACLU is challenging
the FBI’s authority to use National Security Letters to demand
sensitive customer records from internet service providers and other
businesses without judicial oversight. Here, the government has submitted
a secret affidavit without providing any justification for the secrecy
or any indication of the nature or scope of the evidence.
The ACLU filed the National Security Letter case under seal to avoid
the risk of violating a USA PATRIOT Act gag provision. Since filing
the case, the ACLU has repeatedly clashed with the government over its
insistence on suppressing even non-sensitive information about the case.
“The government is refusing to tell the public how it is using
these extraordinary new powers, even in the most general terms,”
Beeson said. “At the same time, the government is gagging the ACLU
and others from speaking freely about our legal challenges.”
Even Congress has not been given complete information about the government’s
use of the USA PATRIOT Act, according to ACLU staff attorney Jameel
Jaffer. A 30-page report submitted to Congress last month by Attorney
General Ashcroft on the government’s use of the USA PATRIOT Act
omitted key information and avoided any mention of numerous controversial
provisions of the law, including Section 215 and Section 505, the National
Security Letter provision.
“Unfortunately, the government has released virtually no information
about the way that the USA PATRIOT Act is being used, and the meager
information that has been released is incomplete and misleading,”
Jaffer said. “‘Trust us, we’re the government’ is
not a sufficient response when it comes to such a radical expansion
of law enforcement powers.”
The ACLU is highlighting the suppression of information about the USA
PATRIOT Act in a new web feature. The feature provides examples of speech
that the government suppressed in the National Security Letter case
but that the court later allowed the ACLU to disclose. For example,
the government demanded that the ACLU redact a sentence that described
its anonymous client’s business as “provid[ing] clients with
the ability to access the Internet.” The government also insisted
that the ACLU black out a direct quote from a Supreme Court case. The
feature is online at <www.aclu.org/gagorder>.
Source: ACLU
‘Terror’ election barring voters could
stand
By Ritt Goldstein
Stockholm, Sweden, Aug. 19 (IPS)— A recently unearthed
government memorandum prepared for the US Congress addresses the power
of the administration to postpone elections. But more notably, it reviews
actions the executive branch might take that could preclude large numbers
of Americans from casting a ballot in the coming presidential vote.
The memorandum highlights that, should such disenfranchisement occur,
the Nov. 2 election could well remain legally intact and binding.
Concerns have arisen that the administration of US President George
W. Bush is actively seeking to manipulate the presidential vote, using
exaggerated terror threats to provide the political smokescreen for
this.
The story initially began breaking in the July 19 issue of Newsweek.
The magazine reported that authority was being sought for a potential
postponement of the election, the implications of a terror attack or
the threat of one cited as the proposal’s rationale. A July 23
Associated Press (AP) article noted that in mid-month the “chairman
of a federal commission on voting” had asked congressional leadership
for just such an “emergency” plan.
In separate interviews with IPS, noted political scientists John Dryzek,
chairman of the social and political theory program at Australian National
University, and Steve Cimbala, a political scientist at Pennsylvania
University, former US government consultant and author of 27 books,
both expressed strong concern regarding the potential implications for
US democracy.
The government memo, entitled “Executive Branch Power to Postpone
Elections” and dated July 14, appears to have been prepared in
part to examine the mechanisms the Bush administration might use to
disrupt the November ballot. It explicitly states, “the executive
branch could make decisions that would make it impossible or impractical”
for an election to occur.
The memo elaborates on how the administration could “limit the
movement of citizens under its emergency powers,” further finding
that “exercise of such power would not appear to have the legal
effect of delaying an election.”
Notably, the “legal resolution of an election during which significant
numbers of persons fail to reach the polls due to the actions of the
executive branch is beyond the scope of this memorandum,” concludes
the document, which was prepared for Congress by the American Law Division
of the Congressional Research Service (CRS).
Again, despite voter disenfranchisement, the election could indeed remain
binding.
Of particular interest in light of the possibility that a “red
alert” (signaling an imminent attack) for alleged terrorist activity
could eliminate voting for numerous Americans, the document finds that
“despite modern state practice,” state legislatures “still
retain the authority to use an alternative method of choosing presidential
electors besides popular elections.”
As illustrated in the 2000 presidential election, which Bush won though
he had considerably fewer popular votes than Democratic challenger Al
Gore in the nation-wide total, it is the electoral vote, not the popular
vote, which determines the winner of the presidency.
Should a worst-case scenario occur, state legislatures could conceivably
use their power to either save or scuttle voter intent.
Dryzek, who formerly chaired the University of Oregon’s political
science department, said the present political circumstances provide
“cause to worry.”
Cimbala perceives the “very idea” of postponing or canceling
the election as “the worst sort of political chicanery, or cowardice,
or both,” blaming the notion on administration “ideologues.”
But if “red alerts” were to give Bush the election, “I
don’t think you could put that through the US Congress even in
their most fearful moments,” he added.
It is vital to “warn politicians who might be stampeded into this
[election chicanery] — ‘don’t you even bring it up,’”
said Cimbala.
Dryzek noted that during World War II, Britain did cancel elections
until after the war in Europe ended. But he emphasized that circumstances
were quite different, outlining, “the suspicion now is that to
postpone would be for partisan political purposes.”
The July 23 AP story reported that some congressional lawmakers were
indeed “worried that an election could be postponed for political
purposes.” It added that on July 22 the House of Representatives
passed a resolution against such a contingency plan by a vote of 419-2,
although, AP pointedly noted, “a House resolution is not binding
and does not have the force of law.”
And the CRS memorandum does indeed raise a number of questions.
“This report focuses on who has the constitutional authority to
postpone elections, to whom such power could be delegated and what legal
limitations exist to such a postponement,” read the memo’s
first paragraph.
Both the administration and the Department of Homeland Security have
denied that any election postponement power is being sought. However,
the CRS document added, “While the executive branch does not currently
have this power, it appears that Congress may be able to delegate this
power to the executive branch by enacting a statute.”
Beyond congressional action to regulate the election, one of the US’
50 largest newspapers, the Indianapolis Star, editorialized in late
July that Bush is already able to postpone the vote.
“According to William Bradford, a professor at Indiana University
School of Law … the president already possesses authority to delay
national elections if necessary. New legislation is not needed,”
the Star wrote.
“Let the president decide whether to postpone the vote. Surely,
political pressure would force him to take such action only under the
most critical circumstances,” it added.
To date, US elections have never been postponed or canceled, and were
held even during the nation’s Civil War, in the midst of ongoing
and widespread fighting.
Repeated questions have been raised regarding the administration’s
agenda in this voting year.
According to Dryzek, “given how the last election was decided,
and the lengths…the Bush side seemed prepared to go to make sure
it was decided in their direction, I would certainly be worried about
what they might do this time.”
Added Cimbala, “Ordinary Americans aren’t so dumb that we
aren’t going to see through trial balloons being floated about
this.” And word of election questions is spreading.
On Aug. 11, an article by former US presidential hopeful Howard Dean
was widely circulated. Titled “Terror Alerts -- Substance or Politics?,”
it condemned the administration’s use of terror pronouncements
as political tools. Prominent former members of the US intelligence
community have also spoken out.
Ray McGovern, a 27-year CIA analyst who for years personally briefed
the White House, and Wayne Madsen, who served in the Reagan-era National
Security Agency, NSA, have both forecast election chicanery.
McGovern wrote an Aug. 9 editorial for the website Buzzflash.com entitled
“Not Scared Yet? Try Connecting These Dots,” which said it
“seems increasingly clear that putting off the election is under
active consideration.” Madsen did a July piece for the Web-based
Onlinejournal.com forecasting a “red alert” in California.
It was subtitled, “No postponement, just bedlam at the polls and
a low-turnout on the West Coast is Bush’s plan for ‘victory.’”
Addressing the use of administration power to disrupt the election process,
Dryzek emphasized, “there’s cause to worry for all of the
traditional reasons we worry about unrestrained executive power. But
I also worry how this Supreme Court — if it was called upon to
do so — would interpret such a situation … probably the benefit
of the doubt would go to the executive [the administration].”
As the US Congress set out its right to regulate voting within the CRS
memorandum, potential for an unprecedented intra-governmental clash
may exist.
Cutting to what may well be the essence of ongoing events, Cimbala observed,
“In those days when the Constitution was written, we depended on
the good-faith of a democratic-minded aristocracy to make it work …
all constitutions are fundamentally rested not upon law, but on a shared
political faith … should that shared political faith break apart,
not all the courts and all the laws can bring it back.”
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