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Neo-McCarthyism, the Patriot Act, and the New Surveillance Culture

"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 Qaeda, 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." 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 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 26th, 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 support 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 times, 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. Š 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 aides 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 that 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 terrorists 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 presumed 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 Bush's 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 against 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 Qaeda, 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

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