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art/W. Ralph Walters
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Ben Franklin (inscribed on the pedestal of the Statue of Liberty)
Welcome
to post-constitutional America. While lip service is paid to freedom,
basic liberties such as the First Amendment right to freedom of speech
and association, the Fourth Amendment right prohibiting illegal search
and seizures, and the Sixth Amendment right to a speedy and public
trial are increasingly jeopardized. George Bush, John Ashcroft, the
Justice Department, and the FBI have tossed the Constitution into the
shredder as they perversely redefine concepts such as democracy,
patriotism, terrorism, and security. While Americans continue to be
entertained by the weapons of mass distraction, the country moves ever
more quickly toward tyranny. With the dystopias of both Orwell's 1984
(overt state domination) and Huxley's Brave New World (insidious
thought control and intense normalization) on the horizon, the gravest
threats to freedom today stem not from the Al Quaeda, but rather from
our own government.
The State of the Nation
"The
State ... is the most flagrant negation, the most cynical and complete
negation of humanity." - Anarchist philosopher Michael Bakunin
As
defined within anarchist political theory, the state is inherently a
system of domination. Historically, the state evolved as a bureaucratic
apparatus and power system in its own right, and its goal was to thwart
all self-organization among members of society. The state is the
usurpation, alienation, and concentration of the power of the
community. Surveillance has always been a key function of the state,
beginning with the invention of writing. In modern times, Marxists
argued that the state is nothing but the ruling political arm of the
hegemony of the dominant economic class, the bourgeoisie. Critics point
out that the state has a relative autonomy and that the state and
capitalist class sometimes are at odds with one another. That
said, it nevertheless is true that the modern democratic state largely
is a vehicle to sanctify the profits and property rights of
capitalists, and that laws often are but legal expressions of economic
power, protecting particular not universal interests. The flip side of
state protection of corporate hegemony is the suppression of peoples'
interests and their civil liberties. Thus, the realm of law and the
domain of justice rarely overlap, and the state uses both legal and
paralegal (e.g., force and repression) means of suppression. Just
as the CIA has been nothing but a tool to destroy democracies outside
our borders, the mission of the FBI has been to squelch dissent from
within. The worse excesses of the FBI's COINTELPRO (Counter
Intelligence Program)--whereby from 1956 to 1971 it monitored,
infiltrated, and disrupted sundry religious and political
organizations--are resurfacing as the intelligence agencies are
collecting and sharing data on American citizens. Despite the Church
Committee reports (named as such because Senator Frank Church of Idaho
headed the committee) of the mid-1970s that documented abuse of power
by U.S. intelligence agencies, nothing has changed except that we are
losing more liberties.
On
few occasions was state power and anti-democratic agendas so evident
than during the McCarthy era of the 1950s, when Sen. Joseph McCarthy
led a Cold War crusade against First Amendment rights. It is no
exaggeration to say that we are entering a neo-McCarthyist period. The
terms and players have changed, but the situation is much the same,
with the Communist threat being replaced by the Terrorist threat, and
John Ashcroft taking the place of Joseph McCarthy. Both then and now,
the country demonized a foreign "Other" who threatened the American way
of life. Government and media employed simplistic scripts of good and
evil, with the U.S. defined as being unambiguously good and the foreign
enemy being unqualifiedly evil. Like before, the government identified
dangerous enemies everywhere, not only outside our country but also,
more menacingly they want us to believe, ensconced within our borders.
The attack on the foreign Other allows targeting the Other within, and
the domestic Other is any and every citizen expressing dissent.
Origins of the Patriot Act
"I
think that it is not too soon for honest men to rebel and to
revolutionize. What makes this duty the more urgent is the fact that
the country so overrun is not our own, but ours is the invading army."
- Henry David Thoreau
According
to the U.S. government, the main domestic enemies are not sleeper Al
Quaeda cells, but rather animal and earth liberation groups, namely the
Animal Liberation Front (ALF), the Earth Liberation Front (ELF), and
Stop Huntingdon Animal Cruelty (SHAC). Because of their many arson
attacks, including the spectacular hit on a Vail ski lodge in 1998
(which the government called "the largest act of eco-terrorism in US
history"), the FBI has identified the ELF as "the largest and most
active U.S.-based terrorist group." According to FBI testimony to
Congress in February 2002, the ALF and ELF together committed over 600
"criminal acts" that inflicted over $43 million in damage to animal
industries.
But
all three animal and earth liberation organizations are major targets
of state suppression as they are officially identified as "domestic
terrorist groups." Indeed, not only the state has stigmatized these
groups as domestic terrorists, but in the creeping rightward political
direction, so too have otherwise progressive groups like the Southern
Poverty Law Center, mainstream animal and environmental groups, and
much of the mass media. Indeed, even the Humane Society of the United
States has come under fire by animal exploitation industries as a
"terrorist organization."
After
the 9-11 attack, the Bush administration declared a permanent state of
emergency against terrorism. With America in a panic, members of the
Bush administration quickly went to work to draft new anti-terrorist
legislations and on October 26, less than one month after the attacks,
President Bush signed into law the USA Patriot Act.
One
of the most important pieces of legislation in American history, this
342-page tome was pushed through Congress before few could even read
it, and only a handful of politicians dared to challenge it. Certainly
the cleverest of all government acronyms, the USA Patriot Act is short
for "Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act." The designator
"Patriot" is painfully ironic, of course, for in the Orwellian
doublespeak of the Bush administration patriotism means tyranny and the
act aims to dismantle the very freedoms for which true patriots profess
to die. Framed as legislation to combat terrorists, the Patriot Act
proposes bold new measures to undermine the Constitution. It is a
mishmash of provisions to augment state power, with some changes
eliminating existing legal loopholes that mitigate government
authority, some updating laws for the age of the Internet, and some
granting the Justice Department powers previously proscribed by
Congress but passed because of the urgency of 9-11. The Patriot Act
dissolves the system of checks and balances that supports the
Constitution, as the Executive Branch of government seizes control of
legislation and the courts. Power is becoming increasingly centralized
in the Leviathan of the contemporary state as other branches of the
state become rubber stamp mechanisms and alibis for totalitarianism.
The
Patriot Act radicalized powers available to the government already on
the books from Title 18 of the United States Code, which defines
criminal policy including actions against property, people, and the
state. In addition, the first institutional threats to animal
liberation can be found in the Animal Enterprise Protection Act of
1992. This involved a joint study between the attorney general and the
secretary of agriculture on "the extent and effects of domestic and
international terrorism on enterprises using animals for food or fiber
production, agriculture, research, or testing." This is perhaps the
first time the word "terrorist" was applied to the U.S. animal
liberation movement, which began in the late 1970s.
Perhaps
most importantly, the Patriot Act builds on laws created by the Foreign
Intelligence Surveillance Act (FISA), a secret court created in 1978.
The purpose of FISA was to review requests for surveillance on
suspected spies, terrorists, and other foreign enemies of the U.S. in
order to collect intelligence information. Unlike other courts, the
FISA court did not require probable cause that a crime is being
committed to obtain a warrant. Ashcroft tried to argue that the Patriot
Act grants the authority to use FISA to conduct a criminal
investigation and expand the powers of the executive branch
accordingly. This would in effect override the Fourth Amendment that
"no warrant shall issue, but upon probable cause." The seven members of
the FISA court--which denied only one out of 12,000 surveillance
requests over two decades of its existence--unanimously rejected the
Patriot Act as an abuse of government authority and denied Ashcroft its
approval in August 2002, as it chastised the FBI for misleading them on
over 75 occasions. But Ashcroft argued the FISA court exceeded its
authority, and an appeals court overturned its decision.
Thus,
the Patriot Act shifts the focus of FISA from foreign to domestic
intelligence; it thereby targets not only spies and terrorists but also
American citizens. By weakening the already permissive nature of FISA
and by applying these diminished standards to domestic criminal
investigations, the Patriot Act reendows the government with
COINTELPRO-like powers to spy, invade, disrupt, and violate
constitutionally protected rights. To use FISA secret courts and
procedures for domestic investigations, the FBI need only claim that
foreign intelligence gathering is a "significant" but not necessarily
the "primary" purpose of investigation, that any request it makes is
related somehow to its investigation.
Implications of the Patriot Act
"The
jaws of power are always open to devour, and her arm is always
stretched out, if possible, to destroy the freedom of thinking,
speaking, and writing." John Adams
Under
the Patriot Act, the government now has the power to violate the rights
of activists or political suspects in ways such as the following:
- Demand from
bookstores and libraries the names of books anyone purchased or
borrowed. Workers at the store or library are thereafter under a firm
gag order not to mention the request to anyone such as the media and
they have no power to contest it in court.
- Conduct secret
surveillance of religious or political groups without the need to show
probable cause. This includes clandestine searches of homes and offices
in sneak and peak operations.
- Increase wiretapping of
phone calls and monitor Internet searches, email correspondence, and
chat room discussions. Internet service providers may be required to
hand over content information and customer records to law officials
without a court order or subpoena.
- Have broad access to a person's medical, financial, and educational records.
- Eavesdrop on conversations between lawyers and clients in federal custody.
- Detain foreigners indefinitely without charges or right to counsel.
To
do all this surveillance, the Pentagon has initiated the method of
"data mining" and the system of "Total Information Awareness" that
builds on the infamous FBI Carnivore program for Internet surveillance.
This means that the state is monitoring electronic communication and
research in order to identify possible "terrorists." All federal agents
need to say to the courts, should they ask, is that their prying is
relevant to an ongoing criminal investigation. If a judge believes a
request is without merit, he or she must grant it anyway. At the same
time, citizen rights for disclosure of public documents and records
under the Freedom of Information Act increasingly are being weakened
and denied.
The
Patriot Act also creates the new legal category of "domestic terrorist"
and defines it in a chillingly broad manner. According to the Patriot
Act, the crime of domestic terrorism is committed when a person engages
in activity "that involves acts dangerous to human life that violate
the laws of the U.S. ... and appear to be intended to intimidate or
coerce a civilian population [or] to influence the policy of government
by intimidation or coercion."
Clearly
"intimidation" and "coercion" could mean anything, and the government
does not adequately distinguish between violent and nonviolent methods
of persuasion. This definition is a direct challenge to liberation
groups like the ALF and ELF that are targeted as top domestic terrorist
threats. Indeed, nearly any protest group can fit the definition of
terrorists, for what is it to "intimidate" or "coerce" a "civilian
population" or "to influence the policy of the government by
intimidation or coercion?" Protests often are intimidating, and their
entire point is to "influence" policy. Not
only do the ALF and ELF fall under the definition of "domestic
terrorism," but also groups like PETA. For "harboring," "concealing,"
"aiding," or "lending material support to" "terrorists" is punishable
under the Patriot Act. PETA has given money to well-known animal rights
"terrorists" such as Rod Coronado, Gary Yourofsky, and Josh Harper, and
in Ashcroft's world this makes PETA aiders and abettors of terror.
Indeed, right-wing industry organizations like the Center For Consumer
Freedom are denouncing even the Humane Society of the United States as
a terrorist group for allegedly funding an Internet service used by the
ALF and hiring "ALF-affiliated criminal" J.P. Goodwin in 2001. Similarly,
if you shelter dogs that are rescued from a laboratory by the ALF, or
if you provided a room for a demonstrator who later became involved in
a violent protest activity, you too could be arraigned under the
Patriot Act. A foreign student involved with PETA or, certainly, the
ALF, could be retained and deported for providing assistance to a
"domestic terrorist" organization. Speaking out in support of the ALF
or ELF can earn you a criminal charge, as can taking pictures of animal
abuse in laboratories or factory farms and slaughterhouses. In our
Orwellian culture where truth is falsehood and falsehood is truth,
documenting animals tortured in a slaughterhouse is terrorism, but
beating and killing animals in unspeakably vicious ways is not. Amidst
the current dragnet, the penalties for liberation activities are far
higher than previously. Whereas the crime of arson on a vivisection
laboratory, for example, carried a penalty of not more than twenty
years, the Patriot Act amends the law to read "for any term of years or
for life." The Patriot Act also has removed the statue of limitations
for specific terrorist offenses, including those that create a
"foreseeable risk" of death or injury to another person. The maximum
penalty for providing material support to, harboring, or concealing a
"terrorist" increases from ten to fifteen years in prison.
That's When I Reach For My Revolver
"When
a long train of abuses and usurpations ... evinces a design to reduce
the people under absolute despotism, it is their right, it is their
duty, to throw off such government, and to provide new guards for their
future security." - Thomas Jefferson
A
collective insanity is sweeping the nation no less absurd, outrageous,
frightening, and irrational than the Red Scare of the 1950s. The
Patriot Act expands government's law enforcement powers nationwide as
it minimizes meaningful review and oversight by an independent judicial
body. Rather, the law is reduced to a Soviet-style, rubber-stamp
device, compelled to grant an order authorizing surveillance so long as
the FBI, CIA, or Justice Department say the magic words: "This
surveillance is part of an authorized terrorist or intelligence
investigation," or just, "Do it." The Bush world is straight out of the
film Minority Report where you are guilty until proven
innocent, and the government condemns you even for thinking an illegal
thought and arrests you before you have a chance to possibly put the
thought into action.
Liberation
movements are being demonized not just as whacko or extreme, but also
as terrorist. Surveillance is increasing in inverse relation to legal
accountability and political scrutiny. Even Racketeer Influenced and
Corrupt Organizations (RICO) acts and extortion laws developed two
decades ago to fight organized crime are now being used against groups
like SHAC, with activists being arraigned under such charges in cities
like Boston and San Antonio. Clearly
the stakes of the game are higher, and this should prompt new
reflection on what direct action tactics are appropriate in the face of
these new attacks. Activists should not be afraid or intimidated, but
they also need to know their rights, or what is left of them, and
everyone needs to exercise particularly high levels of security. Even a
tenuous association with the ALF could satisfy the Patriot Act's
definition of harboring, concealing, or supporting a "terrorist." It is
important that activists have an awareness of the history of state
repression, and to know, in particular, how the FBI COINTELPRO
infiltrated, raided, disrupted, and destroyed the many groups and
causes attacking the government during the 1960s and thereafter. The
government may right now be unleashing a similar war against the ALF,
ELF, and SHAC, although they will have a much harder time with the ALF
and ELF because of their underground, decentralized, cellular level of
organization.
The
movement needs more lawyers, but it must in the first place strive to
avoid long and costly court battles as these drain time, energy, and
will, as happened to SHACtivists in San Antonio, Texas when HLS's
insurance company, Marsh, fought back with lawsuits claiming
harassment. Liberationists must resist being defined as violent and
extremists; they must defend themselves rhetorically and
philosophically, establishing a sharp distinction between theft,
property destruction, and terrorism. They must also work on the
philosophical level to challenge the status of animals as property and
to define them to be, rather, subjects of a complex life, as are we.
In
the current neo-McCarthyist climate, activists need to tone down the
rhetoric, so as not to hand the state the rope with which to hang
themselves and the movement. The enemy reads our writings and comes to
our lectures, recording every word, as is obvious by their use of the
infamous Bruce Friedrich soundbite from the national animal rights
conference of 2002 that champions property destruction. I am elated to
see the "marvelous new militancy" (Dr. Martin Luther King Jr.) of
groups like SHAC, but we must not transgress non-violent boundaries or
indulge in antics such as harassing family members of employees working
for corporations like HLS. We must avoid even threats to violence, not
only to escape the harsher penalties for such speech but also to adhere
to the higher moral ground that activists rightly claim. Be
intelligent, but do not be afraid; take strength from the courage of
King and Gandhi who risked their lives for justice and fought harder
when the state repression got worse. Now would be an excellent time to
revisit their writings and actions.
We
must attack militarism, link this to our general critique of violence,
and grasp the connections between militarism abroad and suppression of
dissent at home. We must resolutely defend the Constitution, because
fundamental rights are under attack. Unfortunately, the Patriot Act and
the damages it has wrought to civil liberties are going to scar our
society for a long time to come. There is no guarantee that freedoms
lost once will return again, especially if the new global paradigm of
heightened dangers and insecurities will prevail indefinitely. A
great sign of hope, however, is that in communities throughout the
country, city councils and local governments are passing resolutions
against the Patriot Act. From Ithaca, New York to Oakland, California,
over two dozen councils have condemned the Patriot Act as
anti-constitutional and devoid of moral legitimacy, even if it is the
law. Taking more than just symbolic action, cities like Ithaca are
requiring city employees (e.g., librarians) to adopt a policy of
non-cooperation with the Patriot Act if legitimate government action
against terrorism violates the civil rights and liberties of people
within their communities. In effect, entire cities are adopting
policies of civil disobedience as they pit individual rights and state
duties against the federal government. Where Congress has proved
cowardly and inept in its duties, city governments are taking on
protection of the Constitution as their own responsibility. As one
member of the Oakland Civil Rights Defense Committee said, "Congress
hasn't been able to check this unconstitutional executive grab, so it
is up to us to reclaim our fundamental rights of free speech, free
association, due process and equal protection." Wisely,
local communities realize that we must not accept the false dualism the
Bush administration and its accomplices are trying to foist on
us--either security or liberty. Sewing seeds of mass paranoia about the
great Evil lurking everywhere, the Bush administration is dismantling
liberties in the name of Homeland Security. Citizens who challenge
Bushıs efforts to wage war with Iraq are denounced on national media as
traitors who should go to jail. According to some critics, Bush and
Ashcroft have compromised freedom in ways previous administrations have
not, even in times of formally declared war. Just as the war on drugs
is a Trojan horse for the entrenchment of state power in our personal
lives, the ever-so misnamed Patriot Act is an anti-democratic vehicle
of conservative reaction opposing citizen dissent against
globalization, corporate destruction of animals and the earth, and a
multitude of injustices.
While
the nation braces for war with Iraq and additional attacks from Al
Quaeda, a key aspect of the terrorist agenda is already realized. If
their mission is to destroy the foundations of Western democracy, then,
with the help of Bush and Ashcroft, they are succeeding.•
Dr.
Steven Best is associate professor and chair of philosophy at the
University of Texas-El Paso. He has published numerous books and
articles on the topics of social theory, cultural studies, science and
technology, and postmodernism. His next book will be Moral Progress and Animal Rights: The Struggle For Human Evolution. Some of his writings are posted at utminers.utep.edu/best/.
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