ASHCROFT'S DELIBERATE MISUSE & ABUSE OF PATRIOT ACT
Sat Feb 21 20:47:46 2004
205.188.208.101

http://writ.news.findlaw.com/commentary/20040218_leavitt.html


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John Ashcroft's Subpoena Blitz: 
Targeting Lawyers, Universities, Peaceful Demonstrators, Hospitals,
and Patients, All With No Connection to Terrorism
By NOAH LEAVITT 
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Wednesday, Feb. 18, 2004

Over the past two weeks, the Justice Department has issued two
intensely controversial sets of subpoenas. The first targeted peaceful
demonstrators in Iowa. The second targeted medical caregivers in
Illinois, New York, Pennsylvania and Michigan.

None of the targets of these subpoenas is alleged to have anything to
do with terrorism.

The Iowa Subpoenas: Information Related to An Anti-War Demonstration

The Ashcroft Justice Department has had its eye on peaceful
demonstrators and dissenters for quite some time. In May 2002, for
instance, the Attorney General announced the elimination of
twenty-six-year-old regulations that had prevented the FBI from
monitoring "open to the public" events held by domestic religious,
political and civic organizations unless it had specific cause for
doing so.

These regulations had been specifically developed to counter the
COINTELPRO domestic spying program that had led to massive civil
rights era abuses during the 1960s and 70s. Now, these restrictions no
longer exist -- and such abuses may well be repeating themselves.

Indeed, in a November 23, 2003 article, the New York Times detailed
how -- according to a leaked bureau memorandum -- the FBI was
collecting extensive information about, and tracking, antiwar
demonstrators. According to the Times, the memo "possessed no
information that violent or terrorist activities are being planned" as
a part of major protests. Still, even with no evidence of a link to
terrorism, the surveillance continued -- and likely continues to this
day.

Then, on February 3 of this year, a local county deputy sheriff
working with the FBI Joint Terrorism Task Force served subpoenas
ordering Drake University in Des Moines, Iowa, to turn over documents
relating to a November 2003 anti-war conference.

The main theme of the conference had been to bring the Iowa National
Guard safely back from Iraq. Attendees included the director of the
local Catholic peace organization. The conference was followed the
next day by a peaceful demonstration at the Guard's training center.

The subpoena asked for all records of Drake University campus security
officers reflecting any observations made of the conference, including
any records relating to the people in charge, or to any of the
attendees. In addition, the subpoenas sought information about the
local chapter of the left-wing National Lawyers Guild, which had
helped to organize the conference.

This step, too, was ominous. In the 1950s and 60s, similar types of
"fishing expedition" subpoenas, as well as the threat of grand juries,
were often used to harass political dissenters and their lawyers, as
well as to threaten people with jail terms or other penalties if they
did not act as an informer on their colleagues. Iowa Sen. Tom Harkin
commented about the Drake situation, "I don't like the smell of
it…It reminds me too much of Vietnam when war protestors were
rounded up, when grand juries were convened to investigate people who
were protesting the war."

(Moreover, under the USA PATRIOT Act, grand jury testimony, which is
supposedly secret, can now be shared with the CIA, the FBI and various
other law enforcement agencies whenever the government claims a
possible connection to an anti-terrorism investigation.)

Despite the lack of any terrorism connection, the government put a gag
order on the Drake staff before the subpoenas were withdrawn, which
seems to confirm that the government plans to conduct its surveillance
under cover of darkness. This is consistent with the USA PATRIOT Act,
which lowered standards for government surveillance, and created a
crime of "domestic terrorism," which many fear will be used to target
organizations that criticize federal policies.

Sadly, this is hardly the first time such legislation has been
misused. For instance, a September 27 New York Times article, which
was based on a DOJ report, detailed literally hundreds of
non-terrorism cases for which the USA PATRIOT Act had been used to
prosecute drug cases, murder investigations, money
smuggling/laundering and document forgery.

When the Iowa subpoenas became public, stunned public interest law
firms said that, to their knowledge, they were the first of their kind
issued against a university in decades. A furious outcry from civil
libertarians, politicians and grassroots activists ensued.

In the end, the subpoenas were withdrawn, and the U.S. Attorney for
the Southern District of Iowa replaced them with a much more narrowly
tailored request. For a moment, it seemed like the government had
admitted that it had overstepped its boundaries -- but then, just a
few days later, another set of equally abusive subpoenas was issued.

The New York, Chicago, Philadelphia and Michigan Medical Subpoenas

Those subpoenas were directed to at least six major hospitals in New
York City, Chicago, Philadelphia, and Ann Arbor. They demanded that
the hospitals turn over hundreds of medical records -- relating to
what may be dozens of patients who underwent certain types of
abortions performed in these facilities over the past three years.

Plainly, these subpoenas sought private, sensitive medical
information. They also attempted to second-guess doctors' judgment,
and intrude into the confidential relationship between doctor and
patient.

Why were they issued? The Attorney General claims these records are
needed to defend litigation challenging the recently passed Partial
Birth Abortion Ban Act (PBABA). Apparently, the Justice Department
wants to show, specifically, that procedures doctors deemed medically
necessary, actually were not.

But in fact, this kind of evidence ought to be utterly irrelevant to
the litigation. The relevant evidence is the evidence that was before
Congress when it passed the PBABA -- not subsequent evidence the
Justice Department might later be able to dig up by violating patient
privacy.

And in any event, the PBABA's central problems are constitutional --
not evidentiary. By its plain language, the law conflicts directly
with the recent Supreme Court precedent of Stenberg v. Carhart --
which mandated the very "health of the mother" exception that the
PBABA omits.

The subpoenas have met with a mixed reaction in the federal courts. On
one hand, a federal judge in Manhattan allowed the subpoenas to go
forward, and said that he would impose penalties -- and even sanction
the attorneys -- if the medical records were not provided.

On the other hand, however, during the same week, the chief federal
judge in Chicago threw out the subpoena against the Northwestern
University Medical Center because he found that it was a significant
intrusion on patients' personal privacy. The Justice Department has
said it may appeal.

Sacrificing Liberties Without Any Plausible Security Concern

Since 9/11, we have heard repeatedly, from the Bush Administration and
others, that we must sacrifice some of our civil liberties in order to
increase security, and protect our country against terrorism. This
argument has provided support for a variety of measures, including the
USA PATRIOT Act. And studies have shown that the majority of Americans
have accepted this argument: They are willing to give up some degree
of privacy and freedom if it is necessary to prevent further terrorist
attacks.

But now, the Justice Department has made clear that it views its
powers as much greater than this. It won't just use its new powers to
curtail privacy and liberty when terrorism is suspected -- it will do
so whenever its political agenda makes it advantageous to do so.

The Administration has also insisted that peace-loving Americans who
are innocent of any wrongdoing have nothing to fear from these new
laws and regulations. But now, the Attorney General has sought
information about innocent persons -- who did nothing more than
exercise their First Amendment rights, or their right to obtain a
legal abortion. (Remember, even on the Attorney General's theory, the
women who obtained abortions did nothing wrong: It is the doctors'
medical necessity judgment that is at issue.)

The message could not be more clear: The government is not going to
stop at only investigating people connected to terrorism; it is
willing to look at the most personal aspects of anyone's life. And the
guiding principle won't be security; it will be politics.

And yet, this should not be a partisan issue. Suppose a Democratic
Administration were to use subpoenas to secretly investigate peaceful
pro-life demonstrators, using the USA PATRIOT Act, as if they were
terrorists. Or suppose a Democratic Administration were to use
subpoenas to check on pro-life women's medical histories, to see if
there were abortions in their pasts. Certainly, these actions would be
equally appalling and objectionable. In the end, this is not a
political issue: It is an issue about individual rights.

An Ever-Expanding Assault on Americans' Rights and Freedoms

The past two weeks will likely be recorded in history books as the
moment when President Bush's homeland security regime crossed the
line, and significantly intruded upon the lives of law-abiding,
innocent Americans.

It may also come to be known as the moment when people living in the
U.S. suddenly realized the extensive powers that the government can
exercise against anyone, regardless of any connection to national
security -- especially now, with the advent of the USA PATRIOT Act.

In his recent book, Enemy Aliens (reviewed on this site by Elaine
Cassel), Georgetown Law Professor David Cole describes how, over U.S.
history, violations of U.S. citizens' rights have often been
foreshadowed by violations of the rights of non-citizens. Indeed,
according to Cole, the expansion of rights-violations from
non-citizens to citizens has been "virtually inevitable."

Cole worries that we may be in another such cycle now, which began
with the restrictions of the rights of Arab-Americans and Muslims
after September 11 and may be spreading to wider sectors of American
society. And the recent subpoenas against peaceful demonstrators and
medical providers seem to be playing out Cole's fears.

In 1976, Supreme Court Justice William Douglas wrote: "As night fall
does not come at once, neither does oppression. In both instances,
there is a twilight when everything remains seemingly unchanged. And
it is in such twilight that we all must be most aware of change in the
air, however slight, lest we become unwitting victims of the
darkness."

The federal government has repeatedly promised -- and Americans have
generally believed -- that the government would violate civil
liberties only if necessary to pursue Al Qaeda and other terrorist
threats. But the events of the past two weeks have proven that that
simply isn't true.

It's not accused Al Qaeda cell members who are the targets here.
Instead, the targets are universities, peaceful protesters, civil
rights attorneys, hospitals, and patients. It is no overstatement,
now, to say to all Americans: Tomorrow, it could be you -- your
medical records; your civic organization meeting; your protest rally.
The time to protest is now -- before it's too late.
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ASHCROFTS CITIZEN CAMPS,
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