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Will We protect The Constitution protect Us?
By Alex Dashevsky

It would have been beyond our founding father's wildest dreams that the Constitution could have protected our most basic freedoms 214 years after it was ratified. The Constitution has survived many crises, not by luck, but by an American populace that has faithfully protected it. If it is to survive another two hundred years, it will need more vigilance than it has been getting from the media and the citizenry after September 11th. The attack on our freedoms have come piecemeal via executive orders, departmental programs like the Total Information Awareness Program, and such laws as the hastily passed "United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act", misleadingly referred to as the USA Patriot Act. The result has been the infringement on the rights to privacy, protection from unwarranted searches and seizures, and to a fair trial.

There has been a tireless bi-partisan opposition to the government's actions, which has yet to resonate with the public at large. It includes not only from the usual suspects like the American Civil Liberties Union, but also a number of Conservative organizations and local governments, including the City Council of Oakland, Americans for Tax Reform, The Family Research Council, The Cato Institute, Former ultra conservative Georgia Representative Bob Barr, and the Free Congress Foundation.

The Total Information Awareness (TIA) program will create the infrastructure for the most extensive electronic surveillance system in history, by building an ultra large database on every person in the United States. Compiling information from both the public and private sectors, it will cover everything from Credit-card transactions, e-mail & instant messaging, education, chemical purchases, gun purchases, travel, communications, immigration, library records, magazines, medical files, telephone records, and whether there have been any suspicious purchases of crop dusters. The TIA will also develop rapid language translation and computer voice recognition software that will be incorporated into this database. Its goal is to analyze massive amounts of information, which will be vetted for behaviors that seem suspicious through a process called data mining. For example, if a terrorist group were planning a chemical attack on Manhattan, they would purchase an unusual amount of chemicals, would be buying or taking out books on dangerous chemicals, would be meeting with other terrorists while coordinating the attack. Such a pattern would automatically throw a red flag in the database, hopefully before the attack was launched.

This historic database has caused controversy not just for its unprecedented scale, but also for who is running the program. It will be operated by the Pentagon under the Defense Advanced Research Projects Agency (DARPA). Under Secretary of Defense for Acquisition, Logistics, and Technology Pete Aldrich refuted allegations that the Pentagon was taking power away from the new Department of Homeland Security "DARPA, which is a research agency, which has this as a characteristic of trying far-out solutions, has the technical capability to make this work." Aldrich assured the public that "if it proves useful, TIA will then be turned over to the intelligence, counterintelligence and law enforcement communities as a tool to help in their battle against domestic terrorism." The program was originally proposed by John Poindexter shortly after the attacks of 9-11. DARPA spokesmen praise Poindexter as the most competent person to bring the database into operation, being that he has a doctorate in physics and has both unique public and private sector experience. The appointment of Poindexter has spawned Orwellian conspiracies, and has been the worst public relations disaster for the Pentagon since it bombed the Chinese embassy of Belgrade in 1999. Of all the thousands of doctorates in physics that are qualified to develop the largest database of personal information on law-abiding citizens, how many have been convicted of destroying and withholding information from Congress? John Poindexter was a Reagan National Security Advisor, who along with Oliver North was convicted in 1986 for their part in the Iran Contra cover-up. He was caught destroying documents that would have embarrassed the Reagan-Bush Administration, including a presidential document that retroactively authorized the shipment of arms to Iran in return for the release of American hostages in Lebanon. Two Reagan-appointed judges controversially overturned the conviction, only because he had been granted immunity as part of the congressional investigation.

From the beginning, the development of the program has been mired in secrecy. The actual program was quietly started in March of 2002, and later authorized by the Homeland Security Bill, which passed the Senate in November 2002. Recently, two-dozen privacy groups complained in a letter to congressional leaders that DARPA was acting in defiance of the Freedom of Information Act in keeping secret the details of TIA. For example, there is conflicting information about how much the database will cost. According to Under Secretary Aldridge, "The project is funded in the fiscal '03 budget by the president at $10 million." That amount was given a rubber stamp and accepted as true by the Chicago Tribune, San Jose Mercury News, National Public Radio Commentator Daniel Shore, and Newsweek. Possibly these sources had better things to do than examine the tedious 373 page DARPA 2003 Fiscal Year Report with a fine tooth comb. Your cynical commentator did not. The $10 million is for the database shell alone, which is like calculating the cost of a car without the engine. By adding the development of adjacent software needed to operate the database, the total is actually between $88.4-110.5 million for Fiscal Year 2003 alone!

The objections to the TIA program range from doubts about the effectiveness of the large database to the invasion of privacy that the database would cause. Even if the Government could build such a large database, they might not be able to process the massive amount of information before it is too late. For example, information was received on 9/10/01 about an upcoming terrorist attack, which was not translated until 9/12/01, because of a lack of manpower to analyze and translate the volumes of information. Jerry Berman, executive director of the Center for Democracy and Technology agrees "They are drowning in information now, they're not able to do good data analysis." A recently released study by the Markle Foundation Task Force on National Security in the Information Age was skeptical about the ability for large-scale data-mining projects, the process that TIA depends on, to achieve its goals.

Politically, much of what the database would entail would not be permissible without an amendment to the 1974 Privacy Act, that regulates the disclosure of personal information by federal agencies and allows citizens access to that information. Even if the government could find legal means to support the database, it still has not explained how this information will be secure from hackers. Very few Americans would feel comfortable with all of their personal information being one click away from a nerd with a modem.

Such an expansive and invasive program could also lead to abuses by officials themselves. Michigan police officers had a limited version of the TIA, where they could identify the name, address, and criminal record of individuals by their license plate. This led to a common practice known as 'running a plate for a date' where officers would look up women's phone numbers by their license plate. It has also opened the door for more malign purposes. One officer used the system to find out personal information about women he met on the internet and harassed them. In another case, a democratic primary for sergeant was disrupted after rogue officers used the database to harass opposition supporters and their family members.

The Fourth Amendment provides "The rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". Tell that to Abdinasir Ali Nur and Abdinasir Khalif Farah of Seattle who lost $300,000 after Treasury agents raided their businesses and seized inventories looking for wire transfers. Though their shops were located in the same building as the business under scrutiny, they had no proof that the store was engaged in illegality. Though the Government did reimburse them $40,500 for checks that were destroyed in the raid, it has not reimbursed them for the $250,000 of inventory that were destroyed, which included such suspicious items as specially prepared halal meats and toilet paper.

The government has found many ways to get around the fourth amendment, the most prominent of which have been through the Federal Intelligence Surveillance Act (FISA). FISA was established in 1978, in order to prevent domestic terrorism. It allowed the government to conduct intelligence wiretaps inside the United States, as long as there is probable cause that the subject is an agent of a foreign power. There was a 'Chinese Wall' placed between the information gathering and criminal investigating arms of the government. As late as May of 2002, FISA had made a unanimous decision not to let the Attorney General expand its powers. That all changed on November 18, when an appeals court ruled that the Justice Department under the USA Patriot Act has new powers to obtain wiretaps for intelligence operations to prosecute terrorists, as long as it has suspicions that the subject is an "agent of a foreign power".

This is a big change, since before this ruling, it was codified in regulations that criminal prosecutions could not be active in intelligence gathering. The fear is that an over zealous prosecutor could use FISA warrants to by-pass fourth amendment protections. Before, a prosecutor needed to show that a crime was or will be committed. Now, they just need to show that a person is an 'agent of a foreign power', which is an abstract enough term that could be applied to practically anyone. This is disturbing, as the Government has historically had a poor ability to control its own agents from abusing their surveillance powers. In the 1960's and 1970's, it conducted the COINTELPRO investigation, disrupting anti-Vietnam and pro-Civil Rights demonstrations. In the 1980's, the FBI spied on the Committee in Solidarity with the People of El Salvador, an organization that opposed US aid to Central American dictatorships with poor human rights records.

Article III Section 2 of the Constitution provides that "The Trial of all Crimes {except Impeachment} shall be by Jury." The Sixth Amendment "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." During the civil war, when the republic was in far greater peril than it does today, President Lincoln suspended the right to Habeas Corpus, or the right to appeal to a civilian court. In 1866, the Supreme Court ruled that the right to an impartial jury provision exists even during times of war.

More than 1,200 people have been detained since September 11th, of whom the Government has not released their names, nor have they been told what they are charged with. All but a few hundred are believed to have been quietly released or deported. This is despite the constitution clearly stating that an individual cannot be hauled out of their homes without probable cause, yet that is clearly violated by the detainment of hundreds of suspects after 9-11 from US soil. President Bush has asserted that he has the authority to exclude the judiciary from the warrant process for non-citizens suspected of illegal activities on American soil, despite the fact that the constitution clearly does not distinguish the difference between citizens and non citizens in either the 4th or 6th amendments.

This is not the first time in history that the government has hastily passed laws that infringed on our individual rights. 80 Years ago, Attorney General A. Mitchell Palmer went on a witch hunt trying to find Bolshevik sympathizers after a series of terrorist bombings. On February 26, 1993, following the first attack on the World Trade Center, Democrat Charles Schumer of New York introduced the Terrorism Prevention and Protection Act of 1993, that attempted to federalize all violent offenses, and allowed secret evidence to be used in deportation hearings. On April 19, 1995, the bombing of the federal building in Oklahoma sparked congress to pass the Comprehensive Terrorism Act of 1995. This appropriated $1 billion on antiterrorism efforts, placing restrictions on the writ of habeas corpus, and banning the sale of goods and services to countries that do not comply with US anti-terrorism efforts. President Clinton claimed at the time that: "our law enforcement officials will now have tough new tools to stop terrorists before they strike."

Nor is it a solely an American phenomenon. Since September 11th, China has declared many Muslim separatist groups to be terrorist organizations, and has intensified the strike hard anti-crime campaign against Uighur nationalists. Spain has moved to ban Batasuna, the political wing of the Basque terror group the ETA. Even the French Government, one of the strongest critics of the United State's policies since 9-11, have allowed police greater freedom to stop and search cars.

September 11th altered the American people's willingness to exchange personal freedom for public safety. We all must concede that times have changed, and change is not necessarily a bad thing. Since the enactment of our constitution, the pendulum has swung between public safety and personal freedom. The days are over when we could give airline security officials sensitivity training on racial profiling, instructing them to treat young Arab passengers the same as elderly Norwegian women. Tonight, I don't lie awake at night worrying about John Ashcroft breaking into my bedroom at night like 'big brother' in a George Orwell Novel. What does keep me awake at night is what will happen tomorrow, if such radical changes to our fundamental constitutional rights continue with next to no public debate and scant public attention. It may be time for the pendulum to swing, but we must not let it stretch so far as to let it snap.

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