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In an era of terror, are we losing our land of liberty?

click to enlarge KATHY CONARRO

Imagine that you are a family man: a U.S. Army veteran, devoutly religious and running a small law office. Terrorists explode a series of bombs in another country, killing 191 people and injuring 1,500 more.

In a matter of weeks, you are arrested in front of your children and the media is told you are a suspected mass murderer, a terrorist.

You maintain your innocence. You haven't left the United States in a decade. But the FBI says your fingerprint is a "100 percent" match with one found on a bag of detonators linked to the attack.

In the documents justifying your arrest, your devotion to Islam appears to matter, as do your connections to the Muslim world. An FBI special agent points out that as a lawyer, you represented a man in a child custody case who later pleaded guilty to fighting in Afghanistan with al Qaeda and the Taliban.

The agent also notes that you've advertised online in the Muslim Yellow Pages, which is owned by a company alleged to have links to organizations that fund terrorists. The agent neglects to mention that Avis, Best Western and United Airlines also advertise in that book.

If convicted, you could be put to death.

But after spending two weeks in jail, separated from your family, the FBI suddenly releases you. The bureau admits the fingerprint wasn't a match; investigators from the country where the bombs exploded brought the mistake to its attention.

This might sound like the plot of the latest suspense thriller, but it all happened to Brandon Mayfield, an American who runs a small legal practice in Portland, Ore. His world was turned upside-down when he was arrested and released in May 2004 in connection with last year's bombing attacks on trains in Madrid.

Mayfield, 38, declined to discuss the saga because he has filed a lawsuit in U.S. District Court against the Justice Department. He alleges that the FBI trampled on his right to privacy and improperly arrested and targeted him because he is Muslim.

But the public defender who originally represented Mayfield says the case embodies just how much America's cherished idea that people are innocent until they are proven guilty has diminished since Sept. 11, 2001, the day terrorists used jets to plow into the Pentagon and send New York's Twin Towers tumbling to the ground.

"Mr. Mayfield's situation puts a human face on the otherwise abstract concern people have about the abuses of civil liberties during the ongoing war on terror, and on the Patriot Act," says Steven Wax, U.S. public defender for Oregon.

Mayfield's case claims that the government secretly gathered DNA and other evidence on him, his family and confidential clients, and then issued warrants to obtain more items.

"They took his children's homework," Wax says. "For all we know, they taped conversations he and his wife had in bed."

Welcome to America, post 9-11.

Sneaking and peeking

A little more than a week after the attacks in 2001, President George W. Bush announced the creation of a Department of Homeland Security to protect the nation.

"They hate our freedoms -- our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other," he said of Muslim terrorists.

In the ensuing weeks, Bush and other lawmakers pushed through a new law, called Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or as it is better known, the Patriot Act. The 132-page law, passed just 45 days after the attacks with little debate or opposition, was built out of a never-used Clinton-era omnibus bill designed to combat terrorism after the 1995 bombing of the Alfred A. Murrah Federal Building in Oklahoma City.

The Patriot Act expands the government's ability to collect information on Americans. Among its provisions, it allows the FBI, a domestic law enforcement agency, to communicate more freely with spies in the CIA.

Under the law, agents may seek access to medical, library and business records. They may conduct "sneak-and-peek" searches of homes. They also may intercept e-mail, monitor Web surfing patterns and phone conversations if they claim such measures could yield information relevant to an ongoing terrorism or foreign intelligence investigation.

The law was set to expire at the end of this year. That's how long the war on terror was expected to last. But it now appears that most of the act will become permanent, with exceptions for sneak-and-peek and "roving wiretap" provisions, which would expire in either four or 10 years.

click to enlarge KATHY CONARRO

Both of Colorado's U.S. senators, Republican Wayne Allard and Democrat Ken Salazar, support renewing the Patriot Act.

Salazar has concerns about civil liberties, but he's also cautious when it comes to protecting the nation, says his spokesman, Cody Wertz.

But Cathryn Hazouri, executive director of the American Civil Liberties Union of Colorado, calls that position typical of elected officials since 9/11. The expiration of the two provisions are "baby steps" in the right direction, Hazouri says, but she thinks it's a shame there wasn't more debate about letting the entire act expire.

Scared witless

Whether this generation of Americans likes it or not, they are faced with choices about what level of privacy they want for their children, Hazouri says.

"The government is putting their nose into our business in a massive way," she says.

Yet Americans seem too caught up in their own lives, dealing with day-to-day issues such as paying the bills, to care. Besides, they are scared witless of terrorists.

But many Americans also have misgivings about government intrusions into privacy. When polled regarding whether they support the Patriot Act, most Americans consistently say "yes." But a new poll, conducted in late August by researchers at the University of Connecticut's Center for Survey Research and Analysis, asked people what they thought about specific provisions in the act. It found support for the act to be weaker than previously thought. (See graphic, page 18.)

Hazouri says attacks on privacy have come in such quick succession in the last four years, that many Americans would be surprised.

"That's the question: Where do you start?" she asks.

Hazouri and other civil libertarians offer up a mish-mash of dubious events for consideration. "No-fly" lists have singled out people for scrutiny or barred them from boarding commercial airline flights. Sen. Edward "Ted" Kennedy, D-Mass., singer Yusuf Islam, formerly known as Cat Stevens, and several infant children have wrongly appeared on the lists.

Protesters who question government policies have been relegated to "free speech zones," far removed from decision-makers. "I thought the entire country was a free speech zone," Hazouri says.

The FBI has investigated several Colorado anti-war organizations and has labeled peace activists as domestic terrorists, according to FBI documents recently obtained by the ACLU.

The Combined Federal Campaign, a charity for federal employees and military personnel that raises millions of dollars for nonprofits around the nation, maintains a "watch list" of people who should not be hired.

The ACLU and dozens of other groups, concerned that these policies represent an erosion of civil liberties, have filed lawsuits around the nation, citing multiple cases of political, religious and racial profiling.

But aside from those watchdogs on the left and right of the political spectrum, most Americans seem to be taking the reductions to their privacy in meek and businesslike fashion. For example, after the July 7 terrorist bombings of subways and buses in London, New York City police -- 3,500 miles away -- began randomly checking people's bags as they entered the subways.

"I thought it would never come to this," commuter William Reyes, 40, told the New York Daily News. "Surely, we do need it. I don't like our privacy being invaded but given the circumstances around the globe, I understand it."

The general tenor is the same: somber commuters soberly coming to grips with a violent world in which government intrusions are reluctantly welcomed, lest they be attacked.

For the last four years, the nation has more or less been trembling in a collective state of fear, says Corey Robin, a professor at Brooklyn College at the City University of New York. He faults the government for that. The five-tiered, green-to-red Homeland Security Advisory System, which was at yellow, or "elevated," at press time, doesn't tell anyone anything about terrorism, he says, but its clear message is to be very afraid.

Meanwhile, politicians want Americans to know they are vigilant and working hard to protect them and their way of life -- which, ironically, is less free, given all the security measures and laws like the Patriot Act.

"Elected officials are perceiving they can get points for being tougher," Robin says. "It's how they prove their mettle. There's lots of symbolic politics here, because they aren't necessarily making changes that actually make us safer. We just feel safer."

When the bag checks were implemented on New York subways, for example, there wasn't any research to back up whether they would prevent an attack. He notes that in reality, terrorists work quickly to find their way around existing security measures.

click to enlarge Brandon Mayfield was wrongly arrested in connection - with last years terrorist bombing in Madrid.
  • Brandon Mayfield was wrongly arrested in connection with last years terrorist bombing in Madrid.

Orwellian implications

This May, after several years of bitter opposition, a measure civil libertarians say has Orwellian implications skipped through Congress with little notice. National identification card, or "REAL ID," legislation will require states to link ID cards (most likely reworked drivers' licenses) into a national information network maintained by the federal government. These Homeland Security-approved cards will be issued only to people who can prove that they are legal residents of the United States, and they come into being -- "get this," Hazouri says -- on Sept. 11, 2008.

Anyone who wants to board a plane, open a bank account, collect a Social Security payment or use countless other services will need a new card.

The ACLU fears that those who look or sound foreign will be vulnerable to possible discrimination, that they will be asked to show their IDs to prove they are in the country legally.

A big backer of the plan, Rep. F. James Sensenbrenner Jr., R-Wis., chairman of the House Judiciary Committee, long has argued that national ID cards will reduce illegal immigration and help authorities ferret out terrorists.

"This sensible legislation is aimed at preventing another 9/11-type attack by disrupting terrorist travel and bolstering our border security," he announced in a press release after the provision passed. "Now more than ever, drivers' licenses can be accepted as identification for federal purposes, such as boarding a commercial airplane, entering a federal building or a nuclear power plant. Giving state drivers' licenses to anyone, regardless of whether they are here legally or illegally, is an open invitation for terrorists and criminals to exploit. States will now have to require proof of lawful presence in the U.S. before issuing drivers' licenses."

Sensenbrenner successfully attached the measure to the $82 billion Emergency Supplemental Appropriations bill, which funds the war on terrorism, numerous defense initiatives and disaster relief.

"Nobody wanted to vote against that," Hazouri says.

Yet when the measure stood by itself in the form of a bill, she notes, it was defeated.

The reason to fear REAL ID is that it serves as a major part of the puzzle for anyone who seeks to turn the United States into a total surveillance society. Police certainly would link to the licenses across state lines. Employers, landlords, marketers, doctors and credit agencies might require the cards and lobby to use the database, all gleaning what information they need for convenience while eroding the current level of privacy that most Americans expect.

The IDs are expected to contain radio frequency chips that can be read remotely. This would allow someone with a pocket reader, perhaps a police officer, to collect names and other information about people gathered at a public meeting or prayer service, Hazouri says.

Officials from the Department of Homeland Security, which is responsible for overseeing the system, did not return repeated calls seeking comment.

Getting spooked

This summer, Scott Silber, a Denver labor consultant who has fought to secure health insurance for janitors, received a phone call from an FBI agent who invited him out to coffee.

"He said he wanted to meet with me," Silber says. "I kept asking him, but he wouldn't say why. So I refused."

Then the agent became angry, Silber alleges, and reeled off a list of his former roommates from several years ago and organizations he once was part of.

"It was all this creepy intelligence stuff," Silber says.

He got spooked, but didn't give in, turning down the agent's offer.

Today, Silber can only imagine why the FBI wanted to sit down with him. He'd been a pretty rambunctious activist when he was a student at the University of Colorado. Maybe his lefty beliefs in workers' rights and his rants against corporate greed pissed off the wrong -- "make that right" -- people, he says.

"But that's how you're supposed to be in college," he adds.

When Silber told other activists what had happened, many of them reported that they, too, had been contacted by the FBI at about the same time.

"It happened all over the country," he says. "It was like an instant buzz, which says something about how well-organized the FBI is."

click to enlarge UCCS Professor Tom Pyszczynski says that while there is - nothing inherently patriotic about the PATRIOT Act, - calling it that was a stroke of marketing genius. - BRUCE ELLIOTT
  • Bruce Elliott
  • UCCS Professor Tom Pyszczynski says that while there is nothing inherently patriotic about the PATRIOT Act, calling it that was a stroke of marketing genius.

The incident appears to have been part of a massive investigation connected to threats at the 2004 Republican and Democratic political conventions.

Since then, ACLU chapters around the country have filed Freedom of Information Act requests asking the FBI for files on activists and groups. In August, the Colorado chapter received a handful of documents, including one from the bureau's Joint Terrorism Task Force with Silber's name on it. The document indicates that a domestic terrorism investigation was opened into an anarchist group that he had never even heard of.

"They're going after the wrong people in the wrong way," Silber says.

Through a spokeswoman, the FBI's national office denied the practice of politically profiling activists, and said it was investigating credible threats in the summer of 2004.

Robin, of Brooklyn College, isn't surprised.

The federal government, particularly the FBI, has a long history of snooping on Americans, he says. For example, from the mid-1950s to 1971, the FBI ran a massive program called COINTELPRO, designed to neutralize political dissent, particularly from left-wing groups. Martin Luther King Jr. was among those targeted for extensive surveillance, including wiretaps. COINTELPRO was discontinued after the FBI's activities were exposed publicly.

Robin worries the FBI is returning to such an era, despite the lessons the nation learned in the past. He takes a grim view.

"We may simply be repealing the gains of the 20th century, civil rights, a growth in equality and expression," he says.

Rounding them up

Robin has another theory as to why Americans seem so sheep-like when it comes to their civil liberties: They don't believe they will be the targets of investigations.

"Most Americans, frankly, aren't giving up that much," Robin says. "As in other points in U.S. history, it is minorities who are bearing the brunt of our new policies. Most white Americans like me aren't getting a knock on the door. We're not being profiled, so we don't have a strong reaction to it."

In the weeks following 9/11, hundreds of immigrants were rounded up, sparking debate over whether religious and racial minorities were singled out for searches, questioning, detention and arrest.

For its part, the Justice Department, citing guidelines issued in 2003 by its Civil Rights Division, says it will not tolerate racial profiling.

"This president is the first in history to issue guidelines prohibiting the use of racial profiling in traditional federal law enforcement," says Charles Miller, a spokesman for the department in Washington, D.C. "The Justice Department expects the guidelines to be followed. We are not aware of any specific allegation that they have not been."

But critics point to a report, posted online by the Justice Department's Bureau of Justice Statistics earlier this year. It found that blacks and Hispanics were roughly three times more likely to be searched by law enforcement officers than whites, and about three times more likely to be arrested.

Rep. Christopher Shays, R-Conn., says there is a loophole in the Justice Department's guidelines that essentially allows profiling on the basis of Homeland Security investigations. He is supporting the End Racial Profiling Act, designed to outlaw the practice of federal and local officials targeting minorities and people of color.

"Decades ago, with the passage of sweeping civil rights legislation, this country made clear race should not affect the treatment of individual Americans under the law," Shays said in a statement. "It is in the spirit of ensuring the civil rights of all Americans are protected that I join my colleagues in the House and Senate, both Republican and Democrat, in an effort to eliminate the practice of racial profiling by law enforcement. The practice of using race as a criterion in law enforcement flies in the face of progress we have made toward racial equality."

With the current guidelines, nothing stops baggage screeners from discriminating against a man with dark skin or a woman in a veil, says Keenan Keller, a spokesman for Rep. John Conyers Jr., D-Mich., who is the bill's main sponsor.

"The congressman has been very concerned about the erosion of civil liberties and the direction that the country has gone since the Patriot Act," Keller says. "He believes that we need to stay as vigilant as we can be. I think there are many individuals who want to trot out any number of ideas that would effectively undercut the Constitution. We're on guard against that."

The irony of it all

Americans have been navigating these complicated issues in a more emotional fashion than they think, says Tom Pyszczynski, a University of Colorado at Colorado Springs professor of social psychology.

Pyszczynski, who authored In the Wake of 9/11: The Psychology of Terror, along with Sheldon Solomon of Skidmore College and Jeff Greenberg of the University of Arizona, has found in behavioral experiments that fear of death increases support for the Patriot Act and the war in Iraq, which Bush has connected to a global war on terror.

click to enlarge President George W. Bush on April 19, 2004 at the - Hershey Lodge and Convention Center in Pennsylvania, - launching his campaign to get an extension on - controversial anti-terrorism legislation that was passed - after Sept. 11, 2001.
  • President George W. Bush on April 19, 2004 at the Hershey Lodge and Convention Center in Pennsylvania, launching his campaign to get an extension on controversial anti-terrorism legislation that was passed after Sept. 11, 2001.

"Calling this law the Patriot Act was a stroke of marketing genius, in that it linked these laws to patriotism, which is something that people will cling to when death is in the air," he says.

Yet, he notes, there is nothing inherently patriotic about all the security measures in the act.

In the experiments, Pyszczynski found that when Americans were reminded of death, including 9/11, their patriotism increased and they became more apt to denigrate people from other cultures.

The findings help explain the bitter ideological divide between liberals and conservatives. The professor noted polls that show conservatives are more likely than liberals to support the Patriot Act, but not because conservatives are more afraid of death than liberals. Rather, the two groups tend to deal with fear by more tightly embracing their different worldviews.

"Reminders of death push you toward belief systems that make you feel more secure, and the 9/11 terrorist attacks were a very powerful reminder of the unpredictable and uncontrollable nature of death," he says.

Pyszczynski and his colleagues also have found that reminders of death increase young Americans' support for battling terrorism through extreme military solutions, including pre-emptive war and the use of weapons of mass destruction that will kill thousands. Similar research shows that young Iranians become more supportive of suicide bombings when they are reminded of death -- for example, after viewing a television news story about innocent Iraqis killed in an attack involving U.S. troops.

So, Pyszczynski says, the same thing that makes Americans want to kill Muslims is what makes Muslims want to kill Americans.

The FBI apologizes

In May 2004, the FBI copied four of lawyer Brandon Mayfield's hard drives, seized 10 DNA samples and took hundreds of digital photographs of his home.

Then came the apology: short, succinct and focused on the error the FBI made in confirming Mayfield's fingerprint, first through a computer system and then with several experts. Authorities in Spain discovered the error.

"The FBI apologizes to Mr. Mayfield and his family for the hardships that this matter has caused," a May 24, 2004 statement reads.

Citing policy, FBI spokeswoman Megan Baroska declined further comment on the case because of the ongoing nature of Mayfield's lawsuit.

Much, says public defender Wax, still is unknown. But a secret court governed by the Foreign Intelligence Surveillance Act, or FISA, approved the search. The Patriot Act mandates that a "significant purpose" is all that is needed to justify a search. The ACLU says this standard is overly broad and may lead to abuses.

The FISA court's primary purpose is to aid agencies gathering foreign intelligence. In this case, the FBI's information was shared with seven intelligence agencies. Mayfield, in his lawsuit, is seeking assurances that intelligence agencies will wipe him from their databases.

Given the level of secrecy, it's unclear how the suit will proceed. Even when Mayfield was facing criminal charges, the Patriot Act denied him a clear right to see and contest the evidence against him, even though he could have faced the death penalty.

The patriots among us

A poll released by University of Connecticut researchers in late August found that the less people know about the Patriot Act, the more likely they are to support it. When asked about specific provisions, many Americans had qualms.

Among the polls findings:

42% of those polled identified the intent of the Patriot Act as expanding the federal governments intelligence capabilities.

31% passed a quiz about the Patriot Act.

53% supported the provision requiring libraries to turn over records in investigations without telling the public of the queries.

43% favored asking banks to turn over records to the government without judicial approval.

23% favored secret searches of Americans homes without a deadline for informing the occupants of the search.

The people surveyed also think some groups have more cause to fear the Patriot Act than others. About half those polled said they believed Muslim-Americans and Arab-Americans will be investigative targets. Forty percent said Iraqi war protesters are likely to be investigated, compared to 13 percent who said ordinary Americans are likely to be.

Source: Center for Survey Research and Analysis at the University of Connecticut

  • In an era of terror, are we losing our land of liberty?

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