Two Wrongs Don’t Take My Rights
The USA Patriot Act and the Model State Emergency Health Powers Act
Is the “War on Terrorism” becoming a war on
Life is not safe. Freedom is an inherently risky proposition.
Security is an illusion and safety a myth. The apostles of the nanny
state continue to try to convince us that if we just pass enough rules
and regulations and give up enough freedom, we will someday be safe and
secure. Anyone who has lived more than a week on this planet knows that
this just isn’t so. Recently, the bid to entice us to surrender our
freedom for the illusion of security has taken the shape of two laws,
The USA Patriot Act and the Model State Emergency Health Powers Act.
The USA Patriot Act
It falls like an obscenity on my ear to hear this
radical assault on our civil liberties named “the USA Patriot Act.” “The
Big Brother Act” or the “KGB Act” might be more appropriate handles.
Since September 11, 2001, I have been concerned
about the use of “war” rhetoric in respect to the terrorist situation.
Initially, it was just a vague discomfort with the analogy, but in time,
my feelings have crystallized into some specific objections to the
characterization of the 9-11 attack as an “act of war.”
Fundamentally, I consider the 9-11 attack to be not
an act of war, but a criminal act. War is a transaction which takes
place between armies composed of warriors who battle against each other,
generally for particular political aims. If the armies intend to
establish moral legitimacy for their political aims, they will operate
under a code of rules. Put another way, they tend to behave with a
nominal degree of honor and civility toward their foes and
noncombatants. When this baseline standard of civilized behavior is
crossed by torture, rape, and the slaughter of civilians and prisoners,
we call this “war crime” and the perpetrators of these acts are
prosecuted as criminals.
number of its provisions are not controversial, the USA PATRIOT
Act nevertheless stands out as radical in its design. To an
unprecedented degree, the Act sacrifices our political freedoms
in the name of national security and upsets the democratic
values that define our nation…”
Senior Litigation Attorney, Center for Constitutional Rights
have we, as a nation, stood in greater danger of losing our
individual liberties as we are today."
Frank Serpico, the whistle-blowing ex-New York City cop.
The 9-11 attack is noticeably missing armies,
warriors, coherent political aims, and the nominal standards of
civilized behavior which legitimate armies employ. The 9-11 attack was a
crime, not a war. Warriors? Here are some warriors: Sitting Bull, Sgt.
John Basilone, Baron von Richthofen, General Joe Fosse, Saladin, Rommel,
Nathaniel Greene, T. E. Lawrence, Stonewall Jackson, Leonidas of Sparta,
and the millions of other guys who have put on their nation’s uniform
and gone in harm’s way. To call the Al Qaeda thugs “warriors” is to
impart to them a dignity they do not deserve and have not earned.
Fascinating, but why is this important? It is
vitally important because historically We the People have been willing
to tolerate a temporary suspension of our civil rights during times of
war. The Sedition Act Of July 14, 1798 declared that any treasonable
activity, including the publication of "any false, scandalous and
malicious writing," was a high misdemeanor, punishable by fine and
imprisonment. By virtue of this legislation twenty-five men, most of
them editors of Republican newspapers, were arrested and their
newspapers forced to shut down. Wartime restrictions of our civil
rights often result in consequences far beyond their stated purposes.
Nevertheless, certain restrictions of civil rights are necessary in
times of war. One’s freedom of speech should not include the broadcast
of convoy schedules which would allow the U-boats to pick them off the
minute they sailed from port.
While the case can be made that our struggle with
the forces of international terrorism is a sort of war, it is not a war
in the traditional sense. We are at no risk of invasion, occupation, or
the destruction of our government or military forces. The risk we face
is for more suicidal vandalism and murder, again, crimes which will most
likely be fought and handled more by law enforcement than by military
forces. Soldiers aren't trained to investigate crimes and track down bad
guys; cops and spooks are.
So, why have our leaders and the mass media been so
quick to embrace the "war" rhetoric rather than characterizing the event
as the crime that it is? The answer is that we don't willingly suspend
our constitutional rights in response to crime in the way we have been
willing to do in the past when war threatens. The USA Patriot Act gives
sweeping new powers to law enforcement and does away with many
restrictions on domestic surveillance by federal law enforcement and
intelligence services. Many of these restrictions were put in place in
response to the COINTELPRO operation of the 1960’s in which civil rights
activists and anti-war protestors were spied upon and harassed by the
FBI and the CIA, not because of any suspected criminal or espionage
activity, but because of their politics.
The USA Patriot Act opens again the possibility of
widespread domestic surveillance on dissident groups and individuals who
may be critical of the federal government or particular politicians. The
USA Patriot Act was rammed through the congress in the hysteria
following the 9-11 attack and it did not receive the careful review and
discussion which should be given a piece of legislation which has such
far-reaching implications for the citizens of this country. Most of our
legislators didn’t even read the 343 page law prior to voting on it. We
the People deserve better attention to our civil rights from our elected
representatives than this law represents.
"This law is based on the faulty assumption that
safety must come at the expense of civil liberties," Laura W. Murphy,
the director of the American Civil Liberties Union's Washington National
Office, said in that group's analysis of the law. "The USA Patriot Act
gives law enforcement agencies nationwide extraordinary new powers
unchecked by meaningful judicial review."
"At times like these, I think our constitutional
rights are even more important," she said. "There have been times when
we relaxed these things — the McCarthy era, the '60s civil rights
struggle, the detention of the Japanese-Americans in World War II. We
look back at those times with shame. … I think this will be another time
we look back on with shame. That's what I fear." – Ann Arbor City
Councilwoman Heidi Herrell
"It is my opinion that never before have we, as a
nation, stood in greater danger of losing our individual liberties as we
are today," he said. "We, the people of this great nation, are being
punished for the transgressions of our leaders and their consorts." –
Frank Serpico, the whistle-blowing ex-New York City cop.
I continue to hear the talking heads, particularly the media wonks,
talking about 9-11 as "the day that changed America." In my most
charitable mood, I hope they mean that this day shook us out of our
complacency and shattered our sense of being insulated from the rest of
the world. But even if this most hopeful interpretation of a "changed
America" is correct, and I doubt that, the statement is still an error
of the highest magnitude and demands rebuke. America is not changed. You
can't change America with four jet airliners or a thousand because
America is not a building, a piece of real estate, or even a border.
America is an idea, a dream, and a vision. As long as there is one soul
who believes in liberty, justice, and equality for all people, America
will live, undimmed and unchanged.
That sounds pretty and poetic, but the fact of the matter is that we
need a lot more than one soul to get concerned and motivated about the
erosion of our civil rights that has occurred since the 9-11 attacks.
If, in fact, the message is that we must give up our civil rights and
cherished freedoms because “America has changed” then we have to preach,
protest, demonstrate, sue, lobby, send cards and letters, and whatever
else it takes to send the message that we are not willing to trade our
liberty for some talking head’s vision of “security.”
Justice Dept. Drafts Sweeping Expansion of
Center Publishes Secret Draft of ‘Patriot II’
By Charles Lewis and Adam Mayle
(WASHINGTON, Feb. 7, 2003) -- The Bush Administration is preparing
a bold, comprehensive sequel to the USA Patriot Act passed in the wake
of September 11, 2001, which will give the government broad, sweeping
new powers to increase domestic intelligence-gathering, surveillance
and law enforcement prerogatives, and simultaneously decrease judicial
review and public access to information.
The Center for Public Integrity has obtained a draft, dated January 9,
2003, of this previously undisclosed legislation and is making it
available in full text
(12 MB). The bill, drafted by the staff of Attorney General John
Ashcroft and entitled the Domestic Security Enhancement Act of 2003,
has not been officially released by the Department of Justice,
although rumors of its development have circulated around the Capitol
for the last few months under the name of “the Patriot Act II” in
Click Here for Full Text of Article
Presented here are some study resources for your
consideration to inform and hopefully alarm you about this back channel
cancellation of the Bill of Rights.
The USA Patriot
The Alien and Sedition Acts of 1798
USA Patriot Act-2001
Strengthening America Act (H.R. 3162)
EFF Analysis of USA PATRIOT Act (Oct. 31, 2001
This is an excellent condensed summary of the points of concern in this
How the USA-Patriot
Act permits indefinite detention of immigrants who are not terrorists
How the USA PATRIOT
ACT puts the CIA back in the business of spying on Americans
Thomas summary of H.R.3162, USA PATRIOT ACT,
“Although a number of its provisions are not
controversial, the USA PATRIOT Act nevertheless stands out as radical in
its design. To an unprecedented degree, the Act sacrifices our political
freedoms in the name of national security and upsets the democratic
values that define our nation…” Nancy Chang, Senior Litigation Attorney,
Center for Constitutional Rights
“Morton Halperin, a defense expert who worked with
the National Security Council under Henry Kissinger, worried in The New
Yorker that if a government intelligence agency "thinks you're under the
control of a foreign government, they can wiretap you and never tell
you, search your house and never tell you, break into your home, copy
your hard drive, and never tell you that they've done it." Moreover,
says Halperin, on whose phone Kissinger placed a tap, "Historically, the
government has often believed that anyone who is protesting government
policy is doing it at the behest of a foreign government and opened
counterintelligence investigations of them."
“The Federal Bureau of Investigation is, and
should remain, not a police but an investigative service. ... In my
opinion, locally established and controlled police can never develop
into the menace to general civil liberties that is inherent in a federal
police." U.S. Supreme Court Justice Robert Jackson
USA Patriot Act
Patriot Act And The Us Department Of Justice: Losing Our Balances?
The USA PATRIOT
Act Six Months Later: A Statement by Members of the Free Expression
This is an excellent summary of how H.R. 3162 impacts free expression
The USA Patriot Act: We Deserve Better
by Robert A. Levy, Senior Fellow in Constitutional Studies, Cato
Behind the USA Patriot Act
The Case of the Dirty Bomber
How a Chicago street gangster allegedly became a
soldier for Osama bin Laden
'Dirty Bomb' Suspect's Case Goes Nowhere, Time
NEW YORK (Reuters) - The case against Jose Padilla, whose detention for
allegedly plotting to build a "dirty bomb" was dramatically announced in
June by U.S. Attorney General John Ashcroft, is going nowhere and
appears to have been "blown out of all proportion," Newsweek reported on
Cities From Cambridge to Berkeley Reject
Is the police state here?
The American police state of the future may well
work like Mexico, but with better plumbing
The Press and the USA Patriot Act
Where Were They When It Counted?
Serpico Decries Anti-Terror Measures
Whistle-Blowing Ex-NYC Cop Frank Serpico Says
Anti-Terror Measures Hurt 'Individual Liberties'
Dictatorship at Your Doorstep
Why "Anti-Terrorism" Laws Threaten You
The Terror of Pre-Crime
John Ashcroft recently released his guidelines for investigating
people he suspects as terrorists, and these guidelines exceed even J.
Edgar Hoover's contempt for due process.
Terror War Has Taken a Big Bite Out of Privacy, Report Says
There has been a rapid erosion of the right to privacy since the
September 11 attacks in the United States, a top international privacy
advocate group charges, and although Britain gets the most criticism for
privacy violations, the U.S. comes in for some harsh censure.
FBI Grabbing More Wiretap Powers
Senators complain that the Justice Department is trying to assert
more authority in federal wiretap cases than it was authorized to have
under last year's USA Patriot Act.
Rights Groups Oppose Expanded Wiretap Powers
The American Civil Liberties Union, the Center for Democracy and
Technology, the Center for National Security Studies, the Electronic
Privacy Information Center, the Electronic Frontier Foundation, and the
Open Society Institute said expanding government surveillance powers
would jeopardize constitutional protections.
Law Permits Surveillance by FBI
Surveillance Law Permits 'Black-Bag' Searches, Phone-Bugging by FBI
The Attack on Civil Liberties
George W. Bush signed the USA PATRIOT ACT on October 26, after both the
House and the Senate overwhelmingly approved most of John Ashcroft's
outline for fighting terrorism. The military tribunals and diminishment
of laws that protect American's privacy is meant to protect us. But is
the legislation also terrorizing our fundamental rights?
The Day the Constitution Died
Ashcroft Takes Questions on Patriot Act
Google News Search on USA Patriot Act
Adding Privacy to Patriot
Immediately after 9/11, many conservatives were understandably worried
first and foremost about national security. This concern was shared by
virtually all Americans whatever their political beliefs. In response,
the Congress rushed through the legislation that came to be known as the
PATRIOT ACT: Law's use causing concerns
Use of statute in corruption case unprecedented, attorneys contend
Comments from the founding fathers on the USA Patriot
"If you love wealth more than
liberty, the tranquility of servitude better than the animating contest
of freedom, depart from us in peace. We ask not your council or your
arms. Crouch down and lick the hand that feeds you. May your chains rest
lightly upon you and may posterity forget that you were our countrymen."
"They that would give up essential liberty for a little temporary
safety deserve neither liberty nor safety."
"Is life so dear, or peace so sweet, as to be purchased at the
price of chains and slavery? Forbid it, Almighty God! I know not what
course others may take; but as for me, give me liberty or give me
March 23, 1775
"Necessity is the plea for every infringement of human freedom. It is
the argument of tyrants; it is the creed of slaves." Nov. 18, 1783
Model State Emergency Health Powers
The Model State Emergency Health Powers Act (MSEHPA)
would empower public health officials to impose police state conditions
that would make ordinary martial law look like the Second Continental
Congress in comparison. This boilerplate legislation was drafted at the
Center for Law and the Public
Health at Johns Hopkins, "A CDC collaborating center promoting
public health through law," and is being submitted to every state
legislature in the United States for passage. Notice that you have heard
next to nothing about this national campaign to put in place radical
legislation which would abrogate the Bill of Rights whenever public
health officials decided there was a threat to public health. They don't
want you to notice because they know that if you do, you will object to
it in the most strenuous terms.
While biological weapons remain a concern which
should be addressed by prudent planning and the stockpiling of
antibiotics and vaccines, the bio-terrorism threat has proven thus far to
be more scare than reality. Biological weapons are notoriously difficult
to handle and deploy. Nevertheless, we are being conditioned by our
alarmist news media to respond to this possibility in a manner which is
totally disproportionate to the actual threat. Current investigation
into the postal anthrax attacks is focusing on researchers and those who
may have had access to U.S. bio-weapon research, not Al Qaeda or Hamas
terrorists. While we cannot minimize or discount even a single death
from anthrax, only five people died as a result of gobs of the powder
being spread around in Florida, Washington D.C. and New York City. Even this
"weapons grade" anthrax was not very effective as weapons go. A simple
bomb would have done a lot more damage.
Recently, researchers at Stonybrook made a big
splash in the media by producing polio virus in a lab with mail-order
DNA and "instructions found on the internet." (They neglected to mention
that virtually every member of the U.S. population has been vaccinated
for polio and its threat potential is about zero). Nevertheless, we are
being conditioned to think that super deadly bio-weapons are hidden
behind every rock and tree ready to destroy our civilization with
anthrax, polio, and bubonic plague. With so many other threats on the
radar screen that are far more concrete and immediate, it leads the
inquiring mind to ask why this stealth legislation demands such an extreme
sacrifice of our civil rights to address a threat which remains largely
So what does this law do?
In the event of a declared public health emergency,
MSEHP grants the governor extraordinary powers. These powers include the
collection of data and records, the control of property, the management
of persons, and access to communications. These powers include such
things as forced vaccination and treatment (Section 504), the tracking
of individuals (Section 202), access to patient records (Section 506),
and the prohibition of firearms (Section 402(c)). The act requires
judicial review for some actions. For example, for mandatory quarantine
to be instigated, a written court order must authorize the action,
unless delay would pose an immediate threat to the public.
treats American citizens as if they were the enemy," – George Annas,
chairman of the Health Law Department at the Boston University School
of Public Health
unrelated ‘anti-terrorist’ proposal with potentially devastating
effects on gun owners – already introduced in 14 state legislatures –
is coming straight out of President Bush’s Health & Human Services
Department, specifically, the Centers for Disease Control. It’s the
39-page Model Emergency Health Powers Act (MEHPA), which would give
state health officers and their bosses new powers in the event of a
public health emergency – including the power to seize and/or regulate
the sale of ‘private property.’ It specifically includes the power to
‘control, restrict and regulate [...] firearms [....]’ – Neil Knox
Of particular concern in the Act are the
- A "public health emergency"
can be declared not only for bioterrorism attacks, but also for
epidemics, pandemic disease or natural disasters.
- The terms "epidemic
disease", "pandemic disease" and "natural disaster" are not defined,
leaving public health officials ample room for their own
- There are no limits on the
number or types of tests that can be performed on individuals, or on
the bodily specimens that can be collected. DNA and genetic testing
are not excluded.
Loss of Civil Rights
- Although due process is
allowed, the Act permits state officials to identify and train
personnel to serve as "emergency judges" to deal with citizen
appeals of forced quarantine and isolation. Such training may be
- Citizens are required to
submit to medical examinations, vaccinations, and quarantine against
their will if a public health emergency is declared.
- Public health officials are
given authority to "collect specimens and perform tests on any
person" even if they are healthy with no history of exposure to
- Health care professionals
who refuse to provide forced medical examinations or vaccinations
can be charged with a misdemeanor.
- Citizens who refuse to
comply can be detained and charged with a misdemeanor.
- Police officers will be
placed under the authority of health department officials.
- Regular ongoing
reporting of individual patients and purchase of medication is
required. Health care professionals, health care facilities,
coroners, medical examiners and pharmacists must provide information
(name, date of birth, sex, race, address, name of health care
provider) to the state health department if there is the "potential"
for bioterrorism, epidemic or pandemic disease. No patient consent
- Broad access to patient
medical records is permitted without patient consent for research
related to epidemics and infectious disease, including to unnamed
"appropriate federal agencies or authorities." There are no
requirements that the individually identifiable data will be
deleted, or not used or shared for other purposes, once the public
health emergency order is terminated.
- Public health officials can
assume control of hospital and clinic operations.
- State control of
communication facilities, food distribution, fuel supply, and real
estate is authorized.
- State rationing of food,
fuel, clothing, alcohol, firearms, and other commodities is
- Elements of the "organized
militia" will be activated to enforce this law.
The Model State
Emergency Health Powers ACT
for Law and the Public Health at Johns Hopkins (the authors of the
the MSEHPA in Acrobat Reader format
of American Physicians and Surgeons, Inc.
State Emergency Health Powers Act: An Assault on Civil Liberties in
the Name of Homeland Security
ACLU: What is wrong with MEHPA?
What You Need to Know About The Proposed Model State Emergency Health
Powers Act in Your State
of The Model State Emergency Health Powers Act
Security Bill Raises Constitutional Concerns
Many States Reject Bioterrorism Law
Emergency health bill passing in many states
government 'dictatorial powers' during crisis