Two Wrongs Don't Take My Rights - The USA Patriot Act and the MSEHPA

The USA Patriot Act and the Model State Emergency Health Powers Act
Is the “War on Terrorism” becoming a war on Freedom?

Life is not safe. Freedom is an inherently risky proposition. Security is an illusion and safety a myth. The apostles of the nanny state continue to try to convince us that if we just pass enough rules and regulations and give up enough freedom, we will someday be safe and secure. Anyone who has lived more than a week on this planet knows that this just isn’t so. Recently, the bid to entice us to surrender our freedom for the illusion of security has taken the shape of two laws, The USA Patriot Act and the Model State Emergency Health Powers Act.

The USA Patriot Act

It falls like an obscenity on my ear to hear this radical assault on our civil liberties named “the USA Patriot Act.” “The Big Brother Act” or the “KGB Act” might be more appropriate handles.

Since September 11, 2001, I have been concerned about the use of “war” rhetoric in respect to the terrorist situation. Initially, it was just a vague discomfort with the analogy, but in time, my feelings have crystallized into some specific objections to the characterization of the 9-11 attack as an “act of war.”

Fundamentally, I consider the 9-11 attack to be not an act of war, but a criminal act. War is a transaction which takes place between armies composed of warriors who battle against each other, generally for particular political aims. If the armies intend to establish moral legitimacy for their political aims, they will operate under a code of rules. Put another way, they tend to behave with a nominal degree of honor and civility toward their foes and noncombatants. When this baseline standard of civilized behavior is crossed by torture, rape, and the slaughter of civilians and prisoners, we call this “war crime” and the perpetrators of these acts are prosecuted as criminals.

The 9-11 attack is noticeably missing armies, warriors, coherent political aims, and the nominal standards of civilized behavior which legitimate armies employ. The 9-11 attack was a crime, not a war. Warriors? Here are some warriors: Sitting Bull, Sgt. John Basilone, Baron von Richthofen, General Joe Fosse, Saladin, Rommel, Nathaniel Greene, T. E. Lawrence, Stonewall Jackson, Leonidas of Sparta, Moshe Dayan and the millions of other guys who have put on their nation’s uniform and gone in harm’s way. To call the Al Qaeda thugs “warriors” is to impart to them a dignity they do not deserve and have not earned.

Fascinating, but why is this important? It is vitally important because historically We the People have been willing to tolerate a temporary suspension of our civil rights during times of war. The Sedition Act Of July 14, 1798 declared that any treasonable activity, including the publication of “any false, scandalous and malicious writing,” was a high misdemeanor, punishable by fine and imprisonment. By virtue of this legislation twenty-five men, most of them editors of Republican newspapers, were arrested and their newspapers forced to shut down. Wartime restrictions of our civil rights often result in consequences far beyond their stated purposes. Nevertheless, certain restrictions of civil rights are necessary in times of war. One’s freedom of speech should not include the broadcast of convoy schedules which would allow the U-boats to pick them off the minute they sailed from port.

While the case can be made that our struggle with the forces of international terrorism is a sort of war, it is not a war in the traditional sense. We are at no risk of invasion, occupation, or the destruction of our government or military forces. The risk we face is for more suicidal vandalism and murder, again, crimes which will most likely be fought and handled more by law enforcement than by military forces. Soldiers aren’t trained to investigate crimes and track down bad guys; cops and spooks are.

So, why have our leaders and the mass media been so quick to embrace the “war” rhetoric rather than characterizing the event as the crime that it is? The answer is that we don’t willingly suspend our constitutional rights in response to crime in the way we have been willing to do in the past when war threatens. The USA Patriot Act gives sweeping new powers to law enforcement and does away with many restrictions on domestic surveillance by federal law enforcement and intelligence services. Many of these restrictions were put in place in response to the COINTELPRO operation of the 1960’s in which civil rights activists and anti-war protestors were spied upon and harassed by the FBI and the CIA, not because of any suspected criminal or espionage activity, but because of their politics.

The USA Patriot Act opens again the possibility of widespread domestic surveillance on dissident groups and individuals who may be critical of the federal government or particular politicians. The USA Patriot Act was rammed through the congress in the hysteria following the 9-11 attack and it did not receive the careful review and discussion which should be given a piece of legislation which has such far-reaching implications for the citizens of this country. Most of our legislators didn’t even read the 343 page law prior to voting on it. We the People deserve better attention to our civil rights from our elected representatives than this law represents.

“This law is based on the faulty assumption that safety must come at the expense of civil liberties,” Laura W. Murphy, the director of the American Civil Liberties Union’s Washington National Office, said in that group’s analysis of the law. “The USA Patriot Act gives law enforcement agencies nationwide extraordinary new powers unchecked by meaningful judicial review.”

“At times like these, I think our constitutional rights are even more important,” she said. “There have been times when we relaxed these things — the McCarthy era, the ’60s civil rights struggle, the detention of the Japanese-Americans in World War II. We look back at those times with shame. … I think this will be another time we look back on with shame. That’s what I fear.” – Ann Arbor City Councilwoman Heidi Herrell

“It is my opinion that never before have we, as a nation, stood in greater danger of losing our individual liberties as we are today,” he said. “We, the people of this great nation, are being punished for the transgressions of our leaders and their consorts.” – Frank Serpico, the whistle-blowing ex-New York City cop.

I continue to hear the talking heads, particularly the media wonks, talking about 9-11 as “the day that changed America.” In my most charitable mood, I hope they mean that this day shook us out of our complacency and shattered our sense of being insulated from the rest of the world. But even if this most hopeful interpretation of a “changed America” is correct, and I doubt that, the statement is still an error of the highest magnitude and demands rebuke. America is not changed. You can’t change America with four jet airliners or a thousand because America is not a building, a piece of real estate, or even a border. America is an idea, a dream, and a vision. As long as there is one soul who believes in liberty, justice, and equality for all people, America will live, undimmed and unchanged.

That sounds pretty and poetic, but the fact of the matter is that we need a lot more than one soul to get concerned and motivated about the erosion of our civil rights that has occurred since the 9-11 attacks. If, in fact, the message is that we must give up our civil rights and cherished freedoms because “America has changed” then we have to preach, protest, demonstrate, sue, lobby, send cards and letters, and whatever else it takes to send the message that we are not willing to trade our liberty for some talking head’s vision of “security.”

Justice Dept. Drafts Sweeping Expansion of Anti-Terrorism Act
Center Publishes Secret Draft of ‘Patriot II’ Legislation

By Charles Lewis and Adam Mayle

(WASHINGTON, Feb. 7, 2003) — The Bush Administration is preparing a bold, comprehensive sequel to the USA Patriot Act passed in the wake of September 11, 2001, which will give the government broad, sweeping new powers to increase domestic intelligence-gathering, surveillance and law enforcement prerogatives, and simultaneously decrease judicial review and public access to information.

The Center for Public Integrity has obtained a draft, dated January 9, 2003, of this previously undisclosed legislation and is making it available in full text (12 MB). The bill, drafted by the staff of Attorney General John Ashcroft and entitled the Domestic Security Enhancement Act of 2003, has not been officially released by the Department of Justice, although rumors of its development have circulated around the Capitol for the last few months under the name of “the Patriot Act II” in legislative parlance.

Click Here for Full Text of Article

Presented here are some study resources for your consideration to inform and hopefully alarm you about this back channel cancellation of the Bill of Rights.

The USA Patriot ACT

The Alien and Sedition Acts of 1798

USA Patriot Act-2001
Uniting and Strengthening America Act (H.R. 3162)

EFF Analysis of USA PATRIOT Act (Oct. 31, 2001
This is an excellent condensed summary of the points of concern in this law

How the USA-Patriot Act permits indefinite detention of immigrants who are not terrorists

How the USA PATRIOT ACT puts the CIA back in the business of spying on Americans

Thomas summary of H.R.3162, USA PATRIOT ACT,

“Although a number of its provisions are not controversial, the USA PATRIOT Act nevertheless stands out as radical in its design. To an unprecedented degree, the Act sacrifices our political freedoms in the name of national security and upsets the democratic values that define our nation…” Nancy Chang, Senior Litigation Attorney, Center for Constitutional Rights
http://www.ccr-ny.org/whatsnew/usa_patriot_act.asp

“Morton Halperin, a defense expert who worked with the National Security Council under Henry Kissinger, worried in The New Yorker that if a government intelligence agency “thinks you’re under the control of a foreign government, they can wiretap you and never tell you, search your house and never tell you, break into your home, copy your hard drive, and never tell you that they’ve done it.” Moreover, says Halperin, on whose phone Kissinger placed a tap, “Historically, the government has often believed that anyone who is protesting government policy is doing it at the behest of a foreign government and opened counterintelligence investigations of them.”
http://www.commondreams.org/views01/1109-02.htm

“The Federal Bureau of Investigation is, and should remain, not a police but an investigative service. … In my opinion, locally established and controlled police can never develop into the menace to general civil liberties that is inherent in a federal police.” U.S. Supreme Court Justice Robert Jackson
http://www.commondreams.org/views02/0620-06.htm

Repeal the USA Patriot Act

The USA Patriot Act And The Us Department Of Justice: Losing Our Balances?

The USA PATRIOT Act Six Months Later: A Statement by Members of the Free Expression Network
This is an excellent summary of how H.R. 3162 impacts free expression and privacy

The USA Patriot Act: We Deserve Better
by Robert A. Levy, Senior Fellow in Constitutional Studies, Cato Institute

Behind the USA Patriot Act

The Case of the Dirty Bomber
How a Chicago street gangster allegedly became a soldier for Osama bin Laden
http://www.time.com/time/nation/article/0,8599,262917,00.html

‘Dirty Bomb’ Suspect’s Case Goes Nowhere, Time Says
NEW YORK (Reuters) – The case against Jose Padilla, whose detention for allegedly plotting to build a “dirty bomb” was dramatically announced in June by U.S. Attorney General John Ashcroft, is going nowhere and appears to have been “blown out of all proportion,” Newsweek reported on Sunday.
http://abcnews.go.com/wire/US/reuters20020811_115.html

Patriot Revolution?
Cities From Cambridge to Berkeley Reject Anti-Terror Measure
http://abcnews.go.com/sections/us/DailyNews/usapatriot020701.html

Is the police state here?
The American police state of the future may well work like Mexico, but with better plumbing
http://civilliberty.about.com/library/weekly/aa112601a.htm

The Press and the USA Patriot Act
Where Were They When It Counted?
http://www.counterpunch.org/presspatriot.html

Serpico Decries Anti-Terror Measures
Whistle-Blowing Ex-NYC Cop Frank Serpico Says Anti-Terror Measures Hurt ‘Individual Liberties’
http://abcnews.go.com/wire/US/ap20020706_472.html

Dictatorship at Your Doorstep
Why “Anti-Terrorism” Laws Threaten You
http://www.isil.org/resources/lit/dictatorship-at-doorstep.html

The Terror of Pre-Crime
John Ashcroft recently released his guidelines for investigating people he suspects as terrorists, and these guidelines exceed even J. Edgar Hoover’s contempt for due process.
http://www.progressive.org/sept02/hen0902.html

Terror War Has Taken a Big Bite Out of Privacy, Report Says
There has been a rapid erosion of the right to privacy since the September 11 attacks in the United States, a top international privacy advocate group charges, and although Britain gets the most criticism for privacy violations, the U.S. comes in for some harsh censure.
http://www.newsmax.com/archives/articles/2002/9/5/230518.shtml

FBI Grabbing More Wiretap Powers
Senators complain that the Justice Department is trying to assert more authority in federal wiretap cases than it was authorized to have under last year’s USA Patriot Act.
http://www.foxnews.com/story/0,2933,62671,00.html

Rights Groups Oppose Expanded Wiretap Powers
The American Civil Liberties Union, the Center for Democracy and Technology, the Center for National Security Studies, the Electronic Privacy Information Center, the Electronic Frontier Foundation, and the Open Society Institute said expanding government surveillance powers would jeopardize constitutional protections.
http://abcnews.go.com/wire/US/reuters20020920_444.html

Law Permits Surveillance by FBI
Surveillance Law Permits ‘Black-Bag’ Searches, Phone-Bugging by FBI
http://abcnews.go.com/wire/US/ap20021120_1532.html

The Attack on Civil Liberties
George W. Bush signed the USA PATRIOT ACT on October 26, after both the House and the Senate overwhelmingly approved most of John Ashcroft’s outline for fighting terrorism. The military tribunals and diminishment of laws that protect American’s privacy is meant to protect us. But is the legislation also terrorizing our fundamental rights?
http://villagevoice.com/specials/civil_liberties/

The Day the Constitution Died
http://www.capitolhillblue.com/artman/publish/article_1865.shtml

Ashcroft Takes Questions on Patriot Act
http://www.foxnews.com/story/0,2933,88649,00.html

Google News Search on USA Patriot Act
http://news.google.com/news?q=Patriot-Act&edition=usa

Adding Privacy to Patriot
Immediately after 9/11, many conservatives were understandably worried first and foremost about national security. This concern was shared by virtually all Americans whatever their political beliefs. In response, the Congress rushed through the legislation that came to be known as the USA-Patriot Act.
http://newsmax.com/archives/articles/2003/8/8/142618.shtml

PATRIOT ACT: Law’s use causing concerns
Use of statute in corruption case unprecedented, attorneys contend
http://www.reviewjournal.com/lvrj_home/2003/Nov-05-Wed-2003/news/22521283.html

Comments from the founding fathers on the USA Patriot Act

Samuel Adams
“If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your council or your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen.”

Ben Franklin
“They that would give up essential liberty for a little temporary safety deserve neither liberty nor safety.”

Patrick Henry
“Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” March 23, 1775

William Pitt
“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” Nov. 18, 1783

Model State Emergency Health Powers Act (MSEHPA)

The Model State Emergency Health Powers Act (MSEHPA) would empower public health officials to impose police state conditions that would make ordinary martial law look like the Second Continental Congress in comparison. This boilerplate legislation was drafted at the Center for Law and the Public Health at Johns Hopkins, “A CDC collaborating center promoting public health through law,” and is being submitted to every state legislature in the United States for passage. Notice that you have heard next to nothing about this national campaign to put in place radical legislation which would abrogate the Bill of Rights whenever public health officials decided there was a threat to public health. They don’t want you to notice because they know that if you do, you will object to it in the most strenuous terms.

While biological weapons remain a concern which should be addressed by prudent planning and the stockpiling of antibiotics and vaccines, the bio-terrorism threat has proven thus far to be more scare than reality. Biological weapons are notoriously difficult to handle and deploy. Nevertheless, we are being conditioned by our alarmist news media to respond to this possibility in a manner which is totally disproportionate to the actual threat. Current investigation into the postal anthrax attacks is focusing on researchers and those who may have had access to U.S. bio-weapon research, not Al Qaeda or Hamas terrorists. While we cannot minimize or discount even a single death from anthrax, only five people died as a result of gobs of the powder being spread around in Florida, Washington D.C. and New York City. Even this “weapons grade” anthrax was not very effective as weapons go. A simple bomb would have done a lot more damage.

Recently, researchers at Stonybrook made a big splash in the media by producing polio virus in a lab with mail-order DNA and “instructions found on the internet.” (They neglected to mention that virtually every member of the U.S. population has been vaccinated for polio and its threat potential is about zero). Nevertheless, we are being conditioned to think that super deadly bio-weapons are hidden behind every rock and tree ready to destroy our civilization with anthrax, polio, and bubonic plague. With so many other threats on the radar screen that are far more concrete and immediate, it leads the inquiring mind to ask why this stealth legislation demands such an extreme sacrifice of our civil rights to address a threat which remains largely theoretical.

So what does this law do?

In the event of a declared public health emergency, MSEHP grants the governor extraordinary powers. These powers include the collection of data and records, the control of property, the management of persons, and access to communications. These powers include such things as forced vaccination and treatment (Section 504), the tracking of individuals (Section 202), access to patient records (Section 506), and the prohibition of firearms (Section 402(c)). The act requires judicial review for some actions. For example, for mandatory quarantine to be instigated, a written court order must authorize the action, unless delay would pose an immediate threat to the public.
http://www.hslda.org/docs/nche/000010/200112201.asp

“This law treats American citizens as if they were the enemy,” – George Annas, chairman of the Health Law Department at the Boston University School of Public Health

“One seemingly unrelated ‘anti-terrorist’ proposal with potentially devastating effects on gun owners – already introduced in 14 state legislatures – is coming straight out of President Bush’s Health & Human Services Department, specifically, the Centers for Disease Control. It’s the 39-page Model Emergency Health Powers Act (MEHPA), which would give state health officers and their bosses new powers in the event of a public health emergency – including the power to seize and/or regulate the sale of ‘private property.’ It specifically includes the power to ‘control, restrict and regulate […] firearms [….]’ – Neil Knox
http://www.nealknox.com/sgn/sgn-archive/2002/sgn1-10-02.html

Of particular concern in the Act are the following provisions:

Broad Definitions

- A “public health emergency” can be declared not only for bioterrorism attacks, but also for epidemics, pandemic disease or natural disasters.
- The terms “epidemic disease”, “pandemic disease” and “natural disaster” are not defined, leaving public health officials ample room for their own interpretation.
- There are no limits on the number or types of tests that can be performed on individuals, or on the bodily specimens that can be collected. DNA and genetic testing are not excluded.

Loss of Civil Rights

- Although due process is allowed, the Act permits state officials to identify and train personnel to serve as “emergency judges” to deal with citizen appeals of forced quarantine and isolation. Such training may be biased.
- Citizens are required to submit to medical examinations, vaccinations, and quarantine against their will if a public health emergency is declared.
- Public health officials are given authority to “collect specimens and perform tests on any person” even if they are healthy with no history of exposure to disease.
- Health care professionals who refuse to provide forced medical examinations or vaccinations can be charged with a misdemeanor.
- Citizens who refuse to comply can be detained and charged with a misdemeanor.
- Police officers will be placed under the authority of health department officials.

Medical Privacy Violations

- Regular ongoing reporting of individual patients and purchase of medication is required. Health care professionals, health care facilities, coroners, medical examiners and pharmacists must provide information (name, date of birth, sex, race, address, name of health care provider) to the state health department if there is the “potential” for bioterrorism, epidemic or pandemic disease. No patient consent is required.
- Broad access to patient medical records is permitted without patient consent for research related to epidemics and infectious disease, including to unnamed “appropriate federal agencies or authorities.” There are no requirements that the individually identifiable data will be deleted, or not used or shared for other purposes, once the public health emergency order is terminated.

State Control

- Public health officials can assume control of hospital and clinic operations.
- State control of communication facilities, food distribution, fuel supply, and real estate is authorized.
- State rationing of food, fuel, clothing, alcohol, firearms, and other commodities is authorized.
- Elements of the “organized militia” will be activated to enforce this law.

http://www.sierratimes.com/archive/files/dec/11/arbt121101.htm

The Model State Emergency Health Powers ACT

Center for Law and the Public Health at Johns Hopkins (the authors of the MSEHPA)

Draft of the MSEHPA in Acrobat Reader format

Association of American Physicians and Surgeons, Inc.

The Model State Emergency Health Powers Act: An Assault on Civil Liberties in the Name of Homeland Security

ACLU: What is wrong with MEHPA?

What You Need to Know About The Proposed Model State Emergency Health Powers Act in Your State

Review of The Model State Emergency Health Powers Act

Security Bill Raises Constitutional Concerns

Many States Reject Bioterrorism Law

Emergency health bill passing in many states
Measure grants government ‘dictatorial powers’ during crisis