by Hope Marston 10/26/06

The USA PATRIOT Act was signed into law by George W. Bush on October 26, 2001 — five years ago. At the time, many of us recognized it as the beginning of an enormous erosion of Bill of Rights protections. Though we didn’t know it at the time, President Bush had begun dismantling the Bill of Rights weeks earlier when he approved the National Security Agency (NSA) warrantless wiretapping program. That program guts Fourth Amendment protections by circumventing the Foreign Intelligence Surveillance Act (FISA), which Congress enacted specifically to codify executive-branch spying.

With its passage of the PATRIOT Act, Congress sanctioned what it called “appropriate tools required to intercept and obstruct terrorism,” but which seemed to many of us eerily similar to the tools President Nixon used to spy on his political enemies. At the time, we thought the difference was that Nixon spied in secret, while Bush had gone directly to Congress with demands for increased power. We know better now, of course. And we also soon learned that the PATRIOT Act’s limited congressional and judicial oversight make its powers virtually as secret as the Nixon administration’s abuses of power.

Over the years, the PATRIOT Act has become a brand name applied to a panoply of executive branch orders that have legalized what in Nixon’s day were the dirty tricks of political surveillance. Orders that allow secretly wiretapping of attorney-client conversations in federal prisons, refusing citizen requests for information about government activities under the Freedom of Information Act, and collecting information about and subverting political groups.

We now know, five years later, that while we were focusing on the PATRIOT Act and executive branch orders, behind our backs the White House had secretly expanded its powers through the warrantless wiretapping program, thus rendering the debate about the PATRIOT ACT a meaningless farce. The administration had also ignored treaties such as the Geneva Conventions, thereby making our country less safe both from terrorism and from runaway executive power.

The advice the president received from his lawyers — who told him in 2001 that torture was okay, that he could name anyone an enemy combatant, and that he could set up his own military tribunals — got slapped down hard by the Supreme Court in its Hamdan v. Rumsfeld ruling this past June.

Bush quickly negotiated a congressionally sanctioned and election-driven workaround known as the Military Commissions Act, which gives him the power to continue to define what is torture, the power to name anyone an enemy combatant, the power to commit war crimes without penalty, the power to set up military tribunals, and the power to exclude everyone in the world except American citizens from exercising the habeas corpus right to challenge a detention in court. The new law also immunizes those who have already committed war crimes, via retroactive amnesty provisions.

Soon after Congress returns from its election recess on November 9, it is expected to consider legalizing the warrantless wiretapping program and providing amnesty for the telecom companies who handed our call information to the government without first seeing warrants. Regardless of the election outcome, the President’s bid to legalize warrantless wiretapping will doubtless be considered. And once more, dirty tricks and unbridled executive power will come up for a vote by the same lame-duck Congressional representatives who recently voted to pass the Military Commissions Act.

So, what can we do?

The same thing we did in 2001 when the PATRIOT Act was passed. We continue to resist. We work against any warrantless wiretapping bill that legalizes the illegalities of the Bush White House. We appeal to Congress to stop this runaway executive excess. And we continue to resist laws that we know are unconstitutional.

The PATRIOT Act was a mammoth intrusion on the Bill of Rights, but that didn’t stop ordinary people from organizing in their communities. It didn’t stop public forums, rallies, marches, conferences, and other local events to bring the excesses of the Bush Administration to light. It didn’t stop hundreds of local, county and state resolutions from being passed opposing the PATRIOT Act and other post-9/11 Administration abuses of the Bill of Rights.

The story of how that local agitation and 408 resolutions have held ground for the Bill of Right is often untold, but needs to be repeated again and again so we can see how far we’ve come in these five years.

In 2001, only 67 members of Congress were willing to vote against the PATRIOT Act. Four and a half years later, in 2006, 184 members of Congress voted against the PATRIOT Act Reauthorization. In those intervening years, the House of Representatives twice passed bills by clear majorities that would have removed funding from crucial parts of the PATRIOT Act — the sneak and peek home search provision and the Section 215, the library/bookstore provision. Unfortunately, under threat of presidential veto neither of those bills passed the Senate — but the House votes are a clear mark of Congress taking note of grassroots work to defend the Bill of Rights.

We can also look back on the past five years and mark the pieces of repressive law the Bush Administration was not able to move through Congress, or fully activate.

The TIPS program, which was an effort to make spies of our neighbors, plumbers and cable installers;
and PATRIOT II (the Domestic Security Enhancement Act), which has not been introduced in Congress on its own, granting power to strip citizenship from anyone providing material support to unpopular organizations the administration labels as “terrorist.”
Though parts of each of those programs have wormed their way into Administration policy in some form or another, neither was passed whole cloth by Congress. Barring the existence of any yet-unrevealed programs, the overall effect of each of those Orwellian proposals was seriously muted by public cries of outrage fostered by a grassroots civil liberties movement.

When our grassroots resolution effort began in late 2001, we hoped that by 2006 we would have successfully rolled back the PATRIOT Act and re-established the Bill of Rights as a hallowed and heeded part of our Constitution. But civil liberties veterans warned us even back then that our work would take years, and to complete that work, we would need stamina, drive, and commitment.

Following the passage of the Military Commissions Act in late September, there has been a renewed vigor from ordinary people throughout the country who are still committed to protecting our vanishing freedoms. Many are planning Veterans Day events to stir local outrage against sanctioned torture and the abolition of habeas corpus. Others are using Halloween as the day to mark the horrors of post-9/11 reality, as they costume themselves as the dead and tortured of the Bush Administration. Still others are organizing public forums, marches, rallies, and conferences to once again bring to light the excesses of an executive branch gorged on power.

There are also newly emerging resolutions. The San Francisco Board of Supervisors, the California Bar Association, the Hampton, CT City Council and the Alaska Native Brotherhood Camp 5 in Haines, Alaska represent new popular will expressed against warrantless wiretapping and against the Military Commissions Act.

As in 2001, ordinary people are not waiting for the courts to declare these Presidential actions and Congressional laws unconstitutional. We are organizing locally, and our work will ripple out nationally. The Bill of Rights Defense Committee recommits to the work we started five years ago — work we know will take us years to produce tangible change. But already we can look back to see our progress, and seeing that is the encouragement we need for this long struggle ahead. Join us! Start by taking advantage of the information and organizing resources available at our website:

Hope Marston is west region organizer for the Bill of Rights Defense Committee. She has been organizing locally against infringements on the Bill of Rights since 2002, and working with local Bill of Rights groups west of the Mississippi since 2005. She can be reached through email: