by Silja J.A. Talvi & r & The USA PATRIOT Act is unique in modern American history both in its wording and in its scope. There are, however, numerous historical examples of pieces of legislation passed into law during times of national crisis, whether real or imagined. In hindsight, most of those laws served the purpose of neutralizing opposition and stifling dissent through a selective redefinition of what constituted illegal domestic conduct.
For example, as Nancy Chang writes in Silencing Political Dissent: How Post-September 11 Anti-Terrorism Measures Threaten Our Civil Liberties, the Espionage Act of 1917, passed during World War I, made it a crime to cause draft refusal or mutiny in the armed forces, as well as to willfully utter, print, write or publish any disloyal, profane, scurrilous or abusive language regarding the United States.
Among the many people prosecuted and incarcerated under the Espionage Act was Eugene Debs, the founder of Industrial Workers of the World. Debs was incarcerated for 32 months for giving an anti-war speech before his 10-year sentence was commuted.
The Smith Act of 1940, a product of Cold War hysteria, lasted into the early 1950s and was upheld by the Supreme Court until 1957, when the court reversed a previous decision.
One of the most similar laws, according to Chang, was the FBI's secretive COINTELPRO intelligence-gathering operation established by FBI Director J. Edgar Hoover. That law, which also allowed for extensive domestic surveillance, focused on anti-war activism as well as civil rights and black nationalist movements. Unlike the PATRIOT Act, however, the liberties taken by the FBI's COINTELPRO program were never backed by legislation. The operations were not made public until 1971, resulting in a set of strict internal FBI guidelines issued by Attorney General Edward Levi in 1976. Those guidelines have been significantly watered down since that time, most notably by Attorney General French Smith in 1983 and Attorney General John Ashcroft during his recent tenure.
In addition to his support of the PATRIOT Act, Ashcroft also played a significant role in obscuring the transparency of the agency and has made the process of obtaining information under the Freedom of Information Act (FOIA) far more difficult and time-consuming for the public and the press alike.
Judicial consternation regarding the PATRIOT Act is now underway, albeit in piecemeal fashion.
A recent U.S. District Court decision found that aspects of the PATRIOT Act are "impermissibly vague" and in direct violation of the U.S. Constitution.
Recently, in a Seattle case that pre-dated 9/11, U.S. District Court Judge John Coughenour handed down a 22-year sentence to convicted terrorist Ahmed Ressam while nevertheless using the opportunity to deliver what was perceived as a clear critique of the PATRIOT Act.
"The tragedy of Sept. 11 shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism," stated Coughenour, who was appointed to the bench in 1981 by President Ronald Reagan.
He went on to say that, "Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won."