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FC: USA PATRIOT update: "Moving toward a police state," by M.Ratner
From: Declan McCullagh <declan () well com>
Date: Tue, 20 Nov 2001 11:49:43 -0500
Text of law:
Date: Tue, 20 Nov 2001 08:19:36 -0800
From: "Jeffrey St. Clair" <sitka () home com>
To: Declan McCullagh <declan () well com>
Subject: Ratner On Civil Liberties
Thought your readers might be interested in human rights lawyer Michael
Ratner's analysis of the USA Patriot Act and other recent incursions
into the Bill of Rights.
Jeff St. Clair
Patriot Act would make watchdogs of firms
By Scott Bernard Nelson, Globe Staff, 11/18/2001
Ordinary businesses, from bicycle shops to bookstores to bowling
alleys, are being pressed into service on the home front in the war on
Under the USA Patriot Act, signed into law by President Bush late last
month, they soon will be required to monitor their customers and
report ''suspicious transactions'' to the Treasury Department - though
most businesses may not be aware of this.
Buried in the more than 300 pages of the new law is a provision that
''any person engaged in a trade or business'' has to file a government
report if a customer spends $10,000 or more in cash. The threshold is
cumulative and applies to multiple purchases if they're somehow
related - three $4,000 pieces of furniture, for example, might trigger
Until now, only banks, thrifts, and credit unions have been required
to report cash transactions to the Treasury Department's Financial
Crimes Enforcement Network, under the Bank Secrecy Act of 1970. A
handful of other businesses, including car dealers and pawnbrokers,
have to file similar reports with the Internal Revenue Service.
''This is a big deal, and a big change, for the vast majority of
American businesses,'' said Joe Rubin, chief lobbyist for the US
Chamber of Commerce. ''But I don't think anybody realizes it's
The impact is less clear for consumers, although privacy advocates are
uncomfortable with the thought of a massive database that could bring
government scrutiny on innocent people. Immigrants and the working
poor are the most likely to find themselves in the database, since
they tend to use the traditional banking system the least.
By Dana Milbank
Washington Post Staff Writer
Tuesday, November 20, 2001; Page A01
The Sept. 11 terrorist attacks and the war in Afghanistan have
dramatically accelerated a push by the Bush administration to
strengthen presidential powers, giving President Bush a dominance over
American government exceeding that of other post-Watergate presidents
and rivaling even Franklin D. Roosevelt's command.
On a wide variety of fronts, the administration has moved to seize
power that it has shared with other branches of government. In foreign
policy, Bush announced vast cuts in the U.S. nuclear arsenal but
resisted putting the cuts in a treaty -- thereby averting a Senate
ratification vote. In domestic policy, the administration proposed
reorganizing the Immigration and Naturalization Service without the
congressional action lawmakers sought. And in legal policy, the
administration seized the judiciary's power as Bush signed an order
allowing terrorists to be tried in military tribunals.
Those actions, all taken last week, build on earlier Bush efforts to
augment White House power, including initiatives to limit intelligence
briefings to members of Congress, take new spending authority from the
legislature, and expand the executive branch's power to monitor and
detain those it suspects of terrorism.
Presidential power ebbs and flows historically and, by necessity,
typically heightens during times of war because of the need for a
unifying figure in government. Lyndon B. Johnson gained clout under
the Tonkin Gulf resolution, as did Roosevelt during World War II. The
War Powers Act and other reforms by Congress to limit presidential
power after Watergate made for weaker executives, as did the reduced
threat from the Soviet Union.
Now, in the views of many scholars, Bush has restored the "Imperial
Presidency," a term Arthur Schlesinger Jr. used to describe Richard M.
Nixon's administration in 1973.
Date: Mon, 19 Nov 2001 18:22:50 -0600
From: Jon Roland <jon.roland () constitution org>
Subject: 2001 Patriot Act echoes 1798 Alien Act
2001 Patriot Act echoes 1798 Alien Act
The controversy arising from the hastily-passed "USA Patriot" Act and
associated presidential executive orders strongly resembles that which arose
from the 1798 Alien and Sedition Acts, especially the Alien Act of June 25,
1798, which tried to grant to the president, then John Adams, the
authority to order foreign nationals he deemed "dangerous" to depart, to
imprison them if they did not, to forcibly deport them, to imprison them if
they returned, and to disable their rights to become citizens. The Act was
targeted on French nationals, because France was attacking U.S. shipping,
and Irish nationals, because the Irish were engaged in a fight for
independence from Britain. The Act was, however, used to persecute many
would-be citizens who criticized the Adams administration, as was the
Sedition Act, which was used to persecute the editors and publishers of
opposition newspapers such as the Philadelphia Aurora. The acts encouraged a
reign of terror against critics, including Thomas Jefferson and James
Madison, who responded with such measures as the Kentucky and Virginia
Resolutions of 1798, the Kentucky Resolutions of 1799, and the Virginia
Report of 1799, which defined the "Doctrine of '98" and led to the defeat
of John Adams and election of Thomas Jefferson in 1800, in what became
called the "Revolution of 1800", and many considered that to settle the
issue that the Alien and Sedition Acts were unconstitutional.
But a Sedition Act was again adopted May 16, 1918, during WWI, making it
a crime to criticize the government or Constitution of the United States.
During the Red Scare of 1919-20 U.S. Attorney-General A. Mitchell Palmer and
his special assistant, J. Edgar Hoover, used the Sedition Act and the
Espionage Act of 1917 to persecute leftist reformers, arresting more than
1500 for disloyalty, although most of them were eventually released.
However, Emma Goldman, Alexander Berkman, Mollie Steimer, and 245 other
persons were deported to Russia.
When President Lincoln tried civilians in military courts during the 1861-65
War of Secession, the Supreme Court held, in Ex Parte Milligan 71 U.S. 2
(1866): "Those great and good men foresaw that troublous times would arise,
when rulers and people would become restive under restraint, and seek by
sharp and decisive measures to accomplish ends deemed just and proper; and
that the principles of constitutional liberty would be in peril, unless
established by irrepealable law. The history of the world had taught them
that what was done in the past might be attempted in the future. The
Constitution of the United States is a law for rulers and people, equally in
war and in peace, and covers with the shield of its protection all classes
of men, at all times, and under all circumstances. No doctrine, involving
more pernicious consequences, was ever invented by the wit of man than that
any of its provisions can be suspended during any of the great exigencies of
government. Such a doctrine leads directly to anarchy or despotism...."
The boundary of when persons on U.S. territory could be tried by military
courts under the Articles of War rather than as criminals was tested in the
Supreme Court on a writ of habeas corpus in Ex Parte Quirin, 317 U.S. 1
(1942), which upheld military prosecution of 7 German spies or saboteurs
who had entered U.S. territory covertly.
The issue of extended detention of persons of foreign descent was decided in
the Korematsu case, which affirmed the detention of a Japanese-American who
protested the detention of Japanese Americans, although he was later found
not guilty at the district court level. This case is now generally
considered an embarrassment for U.S. case law, although it has not been
These and other precedents support full due process rights for foreign
nationals who are in the United States legally, leave a grey area for
foreign nationals here illegally or legally but through fraud.
 See Joseph Story, Commentaries on the Constitution, Book 3, Ch. 27, §
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- FC: USA PATRIOT update: "Moving toward a police state," by M.Ratner Declan McCullagh (Nov 20)