Panelists Examine Consequences of Patriot Act
The USA Patriot Act remains a problematic, fractured piece of post-9/11 legislation, according to a panel discussion Sept. 28 on political and cultural issues surrounding the Act. Panelists Imad Damaj, president of the Virginia Muslim Coalition for Public Affairs, ACLU of Virginia executive director Kent Willis, and law professor Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, spoke about the controversial Act, parts of which will expire in December unless the Senate and House agree on renewal legislation in the coming weeks. The panel was sponsored by the ACLU-UVA Law, the ACLU of Virginia, and the Charlottesville chapter of the ACLU.
"Unfortunately my prediction is that the Patriot Act almost certainly won't get better, and in fact it may get worse," O'Neil said. He outlined ways in which the Patriot Act could have been improved during its formative years, such as tightening the definition of terrorism and ironing out provisions in the Act which call for "sneak-and-peek" operations — searches conducted without notifying the subject of the investigation.
O'Neil criticized the Act's provision that allows authorities to openly search through library and bookstore records. Less than a year ago the House of Representatives passed a measure restricting the use of federal funds to enforce subpoenas against companies regarding such records, according to O'Neil.
"Had things continued on that path, I think things would have continued to become less onerous," he said.
He sees hope, however, in the courts beginning to shed light on civil rights and privacy issues affected by the Patriot Act. "In this area, as in many others, the courts will have the final say," O'Neil said.
Numerous cases, including a gag order imposed on a community librarian, are currently circulating throughout the nation's courts. "There are several challenges pending in courts around the country," O'Neil said. "Most of them [are] ACLU initiated."
Kent Willis of the American Civil Liberties Union "disagreed slightly" with O'Neil, stressing the challenges his organization and the courts face when dealing with the Patriot Act. There is a concern that "the courts will only take us so far," he said. "You can't go after [the Patriot Act] the way you go after some laws, where you go after the foundation of the law and challenge its constitutionality. This is going to take multiple challenges over and over again, and it's going to depend on a court system that is sympathetic to a viewpoint that I would say is not pervasive in this country."
Willis called for numerous ways in which citizens and the ACLU can continue to hack their way through the thorny complications posed by the Patriot Act. Because litigation and lobbying in Congress are not working sufficiently, "what that leaves is you and me," he said. The ACLU is initiating an "unprecedented" grassroots movement involving focus groups to gauge how people are thinking, frequent polls, and television programs, including a new series detailing the personal stories behind issues affecting civil liberties. One of these episodes, "Beyond the Patriot Act," was screened for the audience before the panel discussion.
"We've got to be relentless, we have to be persistent, and we have to keep doing this and people have to do everything they can at the grassroots level," Willis said. He noted that Charlottesville was one of the first cities to pass anti-Patriot Act legislation.
As an American Muslim, Damaj illustrated the personal impact the Act can have on individuals. "After 9/11, I learned that free speech is not an equal right to all of us," he told the audience. "National origin, skin color, accent, religion do make a difference. It's a sad reality, but that's the reality."
Life as an American of Muslim faith in a post-9/11, Patriot Act-organized world is fraught with difficulties for Damaj and other members of his community, in which there is a persistent atmosphere of fear, he said. "It is hard to quantify the impact of the Patriot Act itself, because it's not only the Patriot Act. A lot of people feel they are being treated as guilty by association. We know we are under supervision in our mosque and worship centers. We have regular visits from the FBI in Richmond.
"We certainly feel that our citizenship is becoming less and less meaningful."
Damaj called attention to a "disturbing legal trend" in American law concerning cases that not only specifically targeted Muslims, but ended with admissions of error from prosecutors on the basis of faulty evidence. Brandon Mayfield, a Portland, Ore., Muslim of Caucasian origin, was wrongly imprisoned as a suspect in the 2004 terrorist bombings in Madrid. When a sneak-and-peek operation under the Patriot Act discovered a Qu'ran and maps of Spain in Mayfield's house, and his fingerprints were reported on explosives by the Spanish police, Mayfield was arrested. He was freed after two weeks in solitary confinement when the Spanish authorities admitted the fingerprint tests were inconclusive. The FBI subsequently issued Mayfield an apology.
"These are stories in Muslim communities that travel throughout other communities," Damaj said. "And so it goes in America: our war against terrorism. If you're a Muslim in America, if you think you live in the land of the free you do, but in the Muslim community [there are] some restrictions."
Like his fellow panelists, despite the constant feelings of alienation coursing through the American Muslim community, Damaj remains hopeful for the future. "I think the resistance is building up," he said. "I think people are more and more understanding that this is not right. You cannot profile people; you cannot target people. All of us are going through very challenging times. We need to respond but we need to have this balance straight between security and freedom."
Despite suggestions about the rough road ahead in a post-9/11 America, O'Neil remained positive. "There are a lot of things I don't like that are going on these days, but this is not a resurgence of McCarthyism," he said.
"I'm not sure if we have to police our community," said Damaj in response to a comment on the American Muslim response to radical elements. He hoped that American Muslims would continue to get out and display their cultural uniqueness and diversity.
For Willis, the hope for change ultimately lies in the hands of individual Americans. "I think people are mobilized in a way they haven't been in a long time," he said.
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