One nation, under surveillance
Keep your eye on America, circa 2003, where the Patriot Act has made freedom of expression a crime to be investigated
So, you Googled around on your home computer for information about weapons of mass destruction, the oil fields of Kirkuk or crop-dusters. Or, maybe you attended the large anti-war rally in Sacramento’s Capitol Park on February 15 or checked out a library book about Baghdad and the Iraqi Republican Guard. Or, let’s say you wrote a personal check to a charity that feeds hungry children or builds water-treatment plants somewhere in the Middle East.
If you think that’s nobody’s business but your own, well, you’re dead wrong. The government can legitimately keep track of you doing all of it.
Thanks mostly to a little-understood law called the USA Patriot Act (with its tortured acronym “Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”), there’s a new crime of “domestic terrorism” with a definition so broad as to give the Justice Department extensive new information-gathering, surveillance and arrest powers.
The Patriot Act basically allows the collection of private data, on citizens and non-citizens alike, including the wiretapping of telephone conversations; observation of library and Internet activities; and tracking of medical, financial and student records—all with reduced court oversight and often without requiring investigators to obtain court warrants.
It also allows the detention of immigrants without probable cause. Under the rubric of national security, the Patriot Act overrides many existing state and national laws related to privacy and free speech and is seen by the American Civil Liberties Union (ACLU) as nothing less than an unprecedented assault on basic constitutional rights. Meanwhile, the Department of Justice currently is drafting legislation designed to strengthen and supplement the act. A draft copy of this enhancement, known as Patriot II, was leaked to the public last February and has increased the howls of outrage from the ACLU.
The original act was passed in a rush by Congress less than two months after 9/11, at a time when most senators and representatives couldn’t even access their offices because of the anthrax scare. But the 342-page document has begun to encounter increased opposition these days, and not just in liberal circles. Conservatives feel strongly about protecting privacy rights, and some aspects of the act erode key constitutional protections. Even stalwart Republicans like Dick Armey warn that the Justice Department has “run amok” under Attorney General John Ashcroft and that his agency represents “the biggest threat to personal liberty in the country.”
One cannot declare too early in a story about civil liberties in this post 9/11 era that, yes, the world is full of genuine threats. There are real terrorists out there who hate America, and action needs to be taken to stop them from hurting innocent people. The challenge of how to acknowledge this reality, and still closely examine a chilling of free speech and threats to privacy rights, is daunting.
Things are upside down now, as if concern about freedom, in these times of color-coded terror alerts, were downright unpatriotic. Meanwhile, the danger of incorporating hyperbole or overstating risks is also present.
But when a 61-year-old lawyer in upstate New York can get arrested in a mall for wearing a “Peace on Earth” T-shirt; when a pacifist priest can get hassled every time he boards a San Francisco airplane because he’s on a secret, suspected terrorist list; when a Pulitzer Prize-winning writer is booed off a college commencement stage in Rockford, Ill., for uttering an anti-war opinion; when a Muslim college student in San Jose can get arrested at gunpoint and barred from campus during final exams for voicing opposition to U.S. foreign policy; and when Ashcroft feels free to admonish those who question the Patriot Act as “aiding the terrorists,” well, one has to acknowledge that we are living in a chilled America, where dissenting viewpoints sometimes have been dampened—and occasionally silenced. And the breeze is not just blowing from the government. Private organizations and individuals have gotten into the act, too, with charities canceling events with anti-war celebrities, columnists being fired from newspapers for being against the Iraq war, athletes being spurned for their anti-war views and, yes, Dixie Chicks being dumped for a month by the nation’s largest radio chain—their CDs burned gleefully in enormous batches because one of the Chicks made an anti-Bush remark.
Some people in the Sacramento area have bumped up against freedom’s chill, too. Like the local woman who called her congressman to report that she’d been halted from boarding an airplane because she was inexplicably on the Transportation Security Administration’s secret “no fly” list. (She decided not to tell her story to SN&R because she fears even more unwanted attention.) Or the local data manager who was almost fired for posting anti-war articles on his door at work. Or the local physician ordered by his homeowners group to take down a U.N. flag he flew in protest of the war. Or, especially, the many Arab-American locals who have stopped going to meetings, stopped giving to charities and stopped hosting cultural programs out of fear of being placed on government lists.
Activists liken what is happening now to the wrongful internment of Japanese Americans after Pearl Harbor and, especially, to the McCarthy period of the early 1950s. Indeed, the designation “suspected terrorist” has taken on the same flavor the word “communist” had back then. People believed to be communist sympathizers were investigated by the House Un-American Activities Committee, and Congress allowed the FBI to keep dossiers on the alleged traitors (as well as on many Vietnam War protesters later). Ultimately, lives were irreparably and harshly damaged. On its own, McCarthyism spread tons of paranoia and irrational fear and cost thousands of writers, teachers and actors their jobs.
Up in Room 3207 of what’s known locally as the Death Star—the enormous, labyrinth-like building that warehouses University of California, Davis, historians—professor Kathy Olmsted shook her head when asked if we are now facing a new version of McCarthyism. “We’re not there,” she said without hesitation. “There aren’t hearings; people aren’t being made to testify.” But then this expert on 20th-century American history delineated some of the disturbing similarities (the secret “no fly” list, White House spokesman Ari Fleischer admonishing Americans to “watch what you say”) that exist between what happened then and what’s happening now.
“It’s not McCarthyism yet,” she allowed. “But if there are more attacks—who knows?”
Post no evil
Todd Bloom did not learn about war at a peace rally or by watching a video of Apocalypse Now. He was educated at age 19 while on his first combat mission in Vietnam. Then a medic with the Army’s 9th Division and newly arrived in the Mei Kong Delta, Bloom absorbed the principal take-home lesson of war as he faced his very first battlefield casualty, a dying baby girl. He tried frantically to save the life of the Vietnamese toddler, but she suffered and then died in his arms.
“She’d been shot in the head,” said Bloom, holding back emotion that comes from dredging up memories of that day. “That’s the image I carry. That was my introduction to war.”
Now a regular, white-collar Sacramentan with dark, close-cropped hair and unbounded loyalty to the Sacramento Kings, Bloom brought up the story of the baby girl when asked why he was so strongly opposed to the recent war in Iraq. “War is not the sanitized version of things we see on TV. The real experience is not about the glory of war at all. It’s the consequences.”
Bloom was never an activist, “just a sort grumbler on the sidelines,” he said. But he became increasingly distressed throughout the winter of 2003 as talk of a pre-emptive war in Iraq rang out from the White House. For the first time in his life, he joined a national activist group—Veterans for Peace—and attended an anti-war rally in Washington, D.C.
In response to what he was feeling, Bloom began posting mostly war-related newspaper articles from The Sacramento Bee on the door of his office at the UC Davis Medical Center (UCDMC). A data manager for nine years with its Alzheimer’s Disease Center, with a small staff of mostly off-site employees, Bloom has an office off the beaten track in one of UCDMC’s many buildings. “Basically, I started to use the door like a newsletter,” he said. “This was my own subtle way of trying to express myself in a manner that was legitimate and subtle.”
Along with basic newswire articles about the war, last month, he posted an essay by Helen Thomas about the search for the weapons of mass destruction (WMDs) and an article called “One Reason Why He’s the Boss,” about Bruce Springsteen supporting the Dixie Chicks’ free-speech rights. Bloom posted occasional Kings updates from the sports page, too, and even a disclaimer informing viewers that opinions expressed on the door did not reflect the opinions of UCDMC.
Weeks after starting to do this, he was stunned by a supervisor’s negative reaction to the postings. Bloom had received positive work reviews on the job up until that time and had what he felt was a good working relationship with the supervisor. But then he was told to remove the articles. Bloom asked if anybody had complained about the postings, and the supervisor told him, “Nobody’s complained, but I’m uncomfortable with it.” Bloom told his boss he couldn’t, in good conscience, take the materials off the door. “This is my personal expression here,” he told the boss. “I don’t think it’s harmful in any way.”
So began Bloom’s war. The request to remove the offending materials escalated, with the supervisor and other administrators reprimanding him at various times. They used the rationale that he was not allowed to place “non-university-related materials” on the door. Indeed, a university spokesman said the same—that UC Davis has a policy against posting personal messages on doors. Period. But according to Bloom, the request had nothing to do with the stated UC Davis policy and instead had to do with the political content of the articles he posted.
“What I’d done wouldn’t even raise an eyebrow on the main campus,” said Bloom, who still has a Manila folder neatly stacked with every piece of paper he ever posted on his door. Also, he has photographs of many office doors at UCDMC on which opinionated “non-university items” had been posted. As for his colleagues at work, some of them were “rooting for him,” he said, while others went silent about the brewing controversy.
Plenty of private meetings, notices and appeals later, Bloom and UCDMC authorities realized they were at a standoff. Finally, in early May, he was placed on two days of unpaid suspension for being “out of compliance” with regard to posting materials. “I had to surrender my key and badge,” said Bloom. A memo warned that “failure to adhere” to the order would result in his being fired.
Ultimately, Bloom relented and removed the materials. “I wasn’t interested in throwing myself on my sword,” he said, “but I wanted it to be really demonstrable how far they were willing to go over this ridiculous thing.”
Back on the job, Bloom is now in a final appeals process with the institution and may file a lawsuit over what he feels was the expulsion of his free-speech rights on the job. “I didn’t ask for any of this,” he said. “It’s just people need to speak up, or we just give up our rights out of fear.”
Across town, a similar and well-publicized free-speech battle was going on with another Vietnam veteran, Dr. Bill Durston. The Sacramento emergency-room physician raised the hackles of his homeowners association in Gold River by flying the U.N. flag instead of the traditional Stars and Stripes in front of his home—in protest of the war in Iraq.
When the Marshall Village Owners Association board of directors advised him last spring that he must remove the blue-and-white flag, which has olive branches surrounding a map of the world, Durston refused, saying he was merely expressing his right to free speech. The association claimed “ornamental flags” were not allowed.
Many meetings and much hullabaloo later, the matter remains basically unresolved. But the U.N. flag remains flying outside Durston’s home, and a “Homeowner’s Bill of Rights,” Assembly Bill 1525, to protect people who belong to such associations from having their rights infringed, is headed through the California Legislature. Said supporter Marjorie Murray of the Congress of California Seniors, “If this can happen to Bill, it can happen to others.”
Living the Patriot Act
Ayad Al-Qazzaz thought he could keep his emotions in check long enough to teach his California State University, Sacramento, class as usual on the day the war began in Iraq. He got to campus, stood up in front of his sociology students and then quickly figured out that he wasn’t meant to lecture that day. He fought back tears and then canceled the class altogether. “I just wasn’t able to handle the moment,” he said. He was too heartbroken to proceed—his city of birth was being bombed by the country he loved.
Born in Baghdad to illiterate parents in 1941, Al-Qazzaz is a classic success story about the power of education. He earned his sociology degree at the University of Iraq and arrived for grad school at the University of California, Berkeley, during the free-speech movement. He obtained a master’s degree and moved to Sacramento in 1969 when he landed a job with CSUS. At some point, the articulate professor began hosting a local cable-access TV show, Focus on the Middle East.
In 1991, during the first Gulf War, he was interrogated on several occasions by the FBI. He expected this to happen again during the recent war, but it didn’t, at least not to him.
Still, he feels he is being watched by the government.
That’s because Al-Qazzaz and the region’s 10,000 other Arab-Americans are the ones who stand now, at least in Sacramento, on the front lines when it comes to the post-9/11 era of civil liberties. “I’m living the Patriot Act,” he said simply.
It is no secret that individuals of Middle Eastern and South Asian descent and those of the Muslim faith have been targeted for investigation and scrutiny by law enforcement since 9/11. Close to 1,200 immigrants were secretly arrested and put behind bars without even being charged with a crime in the months following passage of the Patriot Act. And though the law’s most frightening provisions—such as surveillance without a court order and secret detentions without probable cause—are intended to be applied toward people of any race, no one doubts that these are chiefly executed toward Arab-Americans, “particularly ones who have immigrated recently,” said Al-Qazzaz.
“The laws are designed to instill fear,” he said. “People are afraid to talk, to go to meetings.” He gave examples of recent local events and speakers that naturally should have drawn a crowd of local Iraqis but did not.
Another example: The Sacramento Association of Arab-Americans used to sponsor an annual and well-attended Middle East Culture & Food Festival. As fate would have it, the ninth annual festival was held September 8, 2001, only days before the terrorist attacks. “We were supposed to reschedule it during another season for 2002 and then again for 2003,” said Al-Qazzaz. But nobody managed to do it either year. Nobody wanted to get on some government list as having attended such an event, he said.
Al-Qazzaz summed: “It’s just fear, fear, fear.”
Rashid Ahmad agrees about the trepidation. President of the Council on American-Islamic Relations (CAIR) chapter in Sacramento, Ahmad also believes the Patriot Act has had the effect of making locals “watch their words very carefully.”
“Middle Eastern people worry big-time, all the time,” Ahmad said. “When I go out, I worry. When I give money, I worry. Let’s say five years from now, some scholar you heard speak at an event turns out to have done something wrong. If you’re on a list of people who went to that event, you’re guilty by association. You could lose your citizenship.
“The result is you have to look over your shoulder. … You don’t give to a charity; you don’t go to a meeting. It’s that simple.”
One poll conducted for New California Media found that 56 percent of American Muslims in California said they had been victims of racial and ethnic discrimination “more frequently” since 9/11. But Ahmad, Al-Qazzaz and other leaders in the local scene said that—outside of a rash of incidents directly after the attacks—the Sacramento and Davis communities have been supportive of the Arab-Americans in their midst. “We’re much better off than other places in California,” said Ahmad. “And California is better off than many other places in the country.” He credited this to good relations with elected officials, law enforcement and the media.
Also, he said, there’s been an outpouring of sympathy from regular people. He told of one “old lady from Davis” who mysteriously showed up to keep watch over CAIR’s Muslim free medical clinic after the events of 9/11. She told Ahmad she was there as a witness in case anybody threatened harm to clinic patrons, he said.
“Nobody asked her; she just came.”
FBI special agent Nick Rossi admits that a “high level of concern” exists in Sacramento’s Arab-American community in response to 9/11 and the Patriot Act. Indeed, the FBI, in coordination with other local law-enforcement agencies, has met with leaders in the Sacramento Arab-American community to answer questions and allay fears. “I think we have taken steps to try to alleviate the fear,” said the spokesman for the Sacramento Field Office of the FBI, “but we’re not there yet. It’s a constant work in progress.”
Patriot, part deux
One day, Americans may know the name of the Deep Throat who leaked the “Domestic Security Enhancement Act of 2003.” Yes, thanks to an anonymous Justice Department insider—a latter-day Daniel Ellsberg—the 86-page document was secreted out of that institution and slipped to the Center for Public Integrity on February 7, right as the world prepared for war. For now, nobody knows who did this.
The Justice Department denied for months that it had been preparing additions to the Patriot Act, but it was quickly clear that the document—dubbed Patriot II—had been in the works for a while and was not a working draft but a full proposal for legislation. The center put the leaked document on its Web site the day the center received it and then went live that night on Bill Moyers’ television program Now with news of Patriot II. Civil-liberties lawyers who reviewed Patriot II quickly decided it was nothing less than a metastasis of the original.
The ACLU, which already had been hammering away at the original Patriot Act, quickly came up with a section-by-section analysis of Patriot II’s most egregious aspects. Written by ACLU legislative counsel Timothy Edgar, the analysis was utterly damning. Edgar revealed that the sequel intended to go even farther in the areas of surveillance, wiretapping and detention. Among other things, Edgar claimed that Patriot II would permit government agencies to compile and share sensitive personal information about innocent individuals without any connection to anti-terrorism efforts, allow for the cataloguing of Americans’ DNA without court order, and threaten public health “by severely restricting access to crucial information” under the guise of protecting against terrorists. For example, severe restrictions would be placed on organizations and media outlets that tried to obtain “worst-case scenario” documents that chemical and power plants are required to file with the government under the Clear Air Act.
Also, the bill’s carte blanche for unfettered domestic spying easily could be used against citizen organizations, he said, and therefore could threaten political and social activism and expression. For example, surveillance of peaceful political activists easily could be conducted under the guise of national security. Under an overly broad definition of “terrorism,” any individual who broke the law with the intent of influencing the government could be labeled a terrorist, so direct-action organizations—from Operation Rescue to Greenpeace to World Trade Organization protesters—clearly could be persecuted.
However, Rossi of the local FBI office believes much of the public’s fear about the original Patriot Act has come as a result of “a lot of hyperbole” about what law enforcement reasonably would set out to accomplish within the bounds of the act. “There’s an absolute right to dissent in this country,” he said, “but it would be nice if the debate were tempered with a dose of reality.” Rossi would not comment on Patriot II, saying he didn’t see the point of talking about a document that may or may not even exist as an actual proposal for legislation.
Though the existence of Patriot II barely made the television news (and only survived the print media for a few days), the leaked document began to attract attention anyway thanks to a shelf life on the Internet. Soon, a wide range of groups were on record opposing both the Patriot Act and its sequel—from the Gun Owners of America to Common Cause; from the American Conservative Union to People for the American Way. Labor unions got on board. Privacy-loving people from conservative quarters joined the opposition. For example: Former Nixon speechwriter William Safire called Patriot II “an abomination.”
And then came the librarians.
Perhaps the mild-mannered librarians—with their image of always shushing people in the stacks—would be last among the people you’d expect to man the barricades in a battle for freedom. As it turns out, though, the librarians of America are formidable and resolute, a downright force of nature. Who better to stand up for democratic principles—like the free and open exchange of knowledge and the right to read without surveillance?
Well, the American Library Association went on record opposing the Patriot Act because of “the increased likelihood that the activities of library users may be under government surveillance” without their knowledge or consent. But that was just the start. They passed resolutions and urged librarians everywhere to educate themselves and their patrons about the dangers of the Patriot Act and Patriot II.
Fight the future
Marie Bryan’s office is located down the rickety wooden stairs in the old-fashioned library building in downtown Woodland. Besides the computer, her work environment consists of tables and desks stacked impossibly high with books, papers, reports, magazines, posters and all other variety of published ink on paper. The place is freely hemorrhaging words, stories, analyses, thoughts and ideas—exactly what libraries are made for.
On top of one of Bryan’s piles is an office-furniture catalog, open to a page that features paper-shredding machines. She’s been thinking of buying one. “I’ve been doing some destroying of records lately,” deadpanned the affable freedom fighter.
Yes, this 30-year librarian (she’s been at Woodland’s main branch for 15 of those) has been savaging documents for some time now in response to the Patriot Act. Among other things, she gets rid of online logs that record what patrons have been viewing on the Internet, because she believes that’s nobody’s business but theirs.
A confirmed Rotarian, wearing a patterned skirt with matching jewelry and the requisite wire-rimmed glasses, Bryan has the natural bookish charisma of a librarian leader. “Access to books is very important to me,” she said. “I’ve seen how powerful that connection can be between a person and a book. And to chill that in any way is wrong. It’s not America.”
Bryan is particularly aware of the section of the Patriot Act that empowers federal agents to issue “national security letters” to compel businesses and institutions—such as libraries—to surrender confidential information without a court order. The section also comes with a gag order, making it a felony (five years in prison) for librarians even to disclose if they’ve been asked by law enforcement to give up patrons’ records. In a survey of 1,505 public libraries in October 2002, 10 percent acknowledged receiving visits from law-enforcement officers since 9/11. Because it’s illegal for librarians to have disclosed this, nobody knows how high that number might actually be. Indeed, some libraries even have posted signs in their front windows to alert patrons that the government may be monitoring their borrowing records.
When Bryan was asked if she’d comply with the act, if asked, and turn over library information to the FBI, she responded that she’d refuse outright. “I’ll say, ‘I’m sorry, but you don’t have probable cause,’ and then wait for them to escort me to jail,” she said.
Congressman Bernie Sanders of Vermont has introduced the Freedom to Read Protection Act, House Resolution 1157, that would establish that libraries and bookstores “are no places for unwarranted searches” and insist the FBI use constitutional means to obtain library and bookstore records. Bryan has proposed her library board consider the endorsement of this bill as well as a resolution of opposition to parts of the Patriot Act.
“People who come through these doors every day say, ‘Patriot would never impact me,’” said Bryan. “But it’s so broad! It could definitely impact John Q. and Jane Q. Public. They think nothing bad will happen to them because they’re innocent. But they’re wrong. It can happen to anybody.”
Indeed, saying “no” to the Patriot Act and Patriot II seems to have increased in popularity of late. Resistance especially has grown in the places that probably best represent the values of American democracy—local communities. More than 119 cities and counties across the country have passed resolutions condemning all or part of the Patriot Act. The city of Davis passed such a resolution, and so has Yolo County. And though the city of Sacramento has yet to consider one, that day seems to be drawing near. Stella Levy, a member of the Sacramento Coalition Against the Patriot Act and organizer of a July 2 daylong town-hall meeting on the subject, said she hopes a Sacramento resolution is in the offing.
Despite this mounted opposition and growth in public awareness, the law stands on the books and has no sunset date. Despite attempts by the ACLU and others to strike certain provisions of the act in court, so far, not much ground has been gained. A few weeks ago, the Justice Department won in a First Amendment case that contended it was illegal for the government to keep secret the names of the people arrested and detained after 9/11. Meanwhile, if another terrorist attack were to occur, public opinion surely would swing back heavily in favor of security rather than liberties. Many believe that is a scenario in which Patriot II could be signed into law.
Some suggest that politicians who have led during eras dominated by fear and paranoia have a way of charging forward and then self-destructing once they take things too far. The unraveling of McCarthyism began when Senator Joe McCarthy went too far by searching for communists in the Army. And President Nixon went too far when his own paranoia led him to authorize bugging the Democratic National Committee headquarters, which led to the Watergate scandal and his undoing.
“The paranoid spokesman sees the fate of conspiracy in apocalyptic terms,” wrote author and historian Richard Hofstadter in his infamous 1964 Harper’s essay “The Paranoid Style in American Politics.” “He is always manning the barricades of civilization. He constantly lives at a turning point. What is at stake is always a conflict between absolute good and absolute evil.”
For Olmsted, the UC Davis historian, Hofstadter’s words ring true today.
“There are many periods in American history when fear has been used by politicians to promote an agenda,” she said. “In all of these eras, there are real enemies out there. It’s just there are also politicians who have something to gain by trying to ratchet up the fear level for their own purposes.”
“We go through these times of paranoia over and over. The same issues come up again and again. … After Pearl Harbor, people said, ‘This changes everything.’ At the start of the Cold War, they said, ‘This changes everything.’”
Asked what ultimately brings an end to these recurrent periods in history, Olmsted paused before stating the obvious. “People just get tired,” she said, “of being afraid all the time.”