How the USA PATRIOT Act redefines Domestic Terrorism

How the USA PATRIOT Act redefines "Domestic Terrorism"



Section 802 of the USA PATRIOT Act (Pub. L. No. 107-52) expanded the definition
of terrorism to cover “domestic,” as opposed to international,
terrorism. A person engages in domestic terrorism if they do an act “dangerous
to human life” that is a violation of the criminal laws of a state or
the United States, if the act appears to be intended to: (i) intimidate or
coerce a civilian population; (ii) influence the policy of a government by
intimidation or coercion; or (iii) to affect the conduct of a government by
mass destruction, assassination or kidnapping. Additionally, the acts have
to occur primarily within the territorial jurisdiction of the United States
and if they do not, may be regarded as international terrorism.

Section 802 does not create a new crime of domestic terrorism. However, it
does expand the type of conduct that the government can investigate when it
is investigating “terrorism.” The USA PATRIOT Act expanded governmental
powers to investigate terrorism, and some of these powers are applicable to
domestic terrorism.

The definition of domestic terrorism is broad enough to encompass the activities
of several prominent activist campaigns and organizations. Greenpeace, Operation
Rescue, Vieques Island and WTO protesters and the Environmental Liberation
Front have all recently engaged in activities that could subject them to being
investigated as engaging in domestic terrorism.

One recent example is the Vieques Island protests, when many people, including
several prominent Americans, participated in civil disobedience on a military
installation where the United States government has been engaging in regular
military exercises, which these protesters oppose. The protesters illegally
entered the military base and tried to obstruct the bombing exercises. This
conduct would fall within the definition of domestic terrorism because the
protesters broke federal law by unlawfully entering the airbase and their
acts were for the purpose of influencing a government policy by intimidation
or coercion. The act of trying to disrupt bombing exercises arguably created
a danger to human life – their own and those of military personnel.
Using this hypothetical as a starting point, we will go through the USA PATRIOT
Act and explore the new governmental powers that could be brought to bear
on Vieques Island protesters whose conduct falls within the overbroad definition
of domestic terrorism.

Seizure of assets – Sec. 806: Section 806 of the Act
could result in the civil seizure of their assets without a prior hearing,
and without them ever being convicted of a crime. It is by far the most significant
change of which political organizations need to be aware. Section 806 amended
the civil asset forfeiture statute to authorize the government to seize and
forfeit: all assets, foreign or domestic (i) of any individual, entity, or
organization engaged in planning or perpetrating any act of domestic or international
terrorism against the United States, or their property, and all assets, foreign
or domestic, affording any person a source of influence over any such entity
or organization or (ii) acquired or maintained by any person with the intent
and for the purpose of supporting, planning, conducting, or concealing an
act of domestic or international terrorism against the United States, citizens
or residents of the United States or their property or (iii) derived from,
involved in, or used or intended to be used to commit any act of domestic
or international terrorism against the United States, citizens or residents
of the United States, or their property.

This language is broad enough to authorize the government to seize any assets
of any individuals involved in the Vieques Island protests or of any organization
supporting the protests of which the person is a member, or from any individuals
who were supporting the protesters in any way. Possible supporters of the
protesters could include student organizations that sponsored participation
in the demonstration, the Rainbow/Push Coalition, the Rev. Sharpton’s
National Action Network, and religious or community organizations that provided
housing or food to the protesters.

The civil asset forfeiture power of the United States government is awesome.
The government can seize and/or freeze the assets on the mere assertion that
there is probable cause to believe that the assets were involved in domestic
terrorism. The assets are seized before a person is given a hearing, and often
without notice. In order to permanently forfeit the assets, the government
must go before a court, but at a civil hearing, and the government is only
required to prove that the assets were involved in terrorism by a preponderance
of the evidence. Because it is a civil proceeding, a person is not entitled
to be represented by an attorney at public expense if they cannot afford to
pay an attorney. The time between seizure and forfeiture can sometimes be
months; meanwhile, organizations or individuals whose assets are seized are
forced to make do without the assets. Only the most financially flush non-profit
organizations would be able to successfully defend themselves against government
forfeiture. In short, without the full due process afforded in criminal cases,
the U.S. government can bankrupt political organizations it asserts are involved
in domestic terrorism.

Disclosure of educational records – Sec. 507: This
provision of the USA PATRIOT Act requires a judge to issue an order permitting
the government to obtain private educational records if the Attorney General
or his designee certifies that the records are necessary for investigating
domestic or international terrorism. No independent judicial finding is required
to verify that the records are relevant. This means that the Attorney General
may obtain the private educational records of a student involved in the Vieques
protests by asserting that the records are relevant to a domestic terrorism
investigation. These records may include information such as a student’s
grades, private medical information (counseling, abortions), which organizations
the student belonged to, or any other information that the educational institution
collects about its students.

Disclosure of information from National Education Statistics Act
– Sec. 508: This provision of the USA PATRIOT Act requires
a judge to issue an order for the government to obtain educational records
that have been collected pursuant to the National Education Statistics Act.
NESA includes a vast amount of identifiable student information from academic
performance to health information, family income, and race. Until now, this
information has been held to strict confidentiality requirements without exception.
Again, all the government needs to certify is that the information is relevant
to a terrorism investigation and the court has no choice but to issue the
order.

Single-Jurisdiction Search Warrants (Sec. 219): This section
of the USA PATRIOT Act amends Rule 41(a) of the Federal Rules of Criminal
Procedure to authorize the government to go before a singe Federal magistrate
judge in any judicial district in which activities relating to the terrorism
may have occurred, to obtain a warrant to search property or a person within
or outside the district. This means that the government could go to a single
judge to get a warrant to search the property or person of the Vieques activists
in New York, Chicago, California, or wherever else the protesters were from.
If the government chose to go before a magistrate in New York, a person in
California, who wished to seek to have the warrant quashed because he or she
believed it was invalid, would have to find a way to appear before the New
York court that issued the warrant. This would be a daunting task for most.

Post-PATRIOT Act Laws

Since passage of the PATRIOT Act, two other new laws have passed that implicate
domestic terrorism.

Taxpayer Information – 26 U.S.C.A. Sec. 6103(i)(3)(C)
requires the Secretary of the Internal Revenue Service to provide taxpayer
information to the appropriate Federal law enforcement agency responsible
for investigating or responding to the terrorist incident. If abused, this
provision could be used by law enforcement to gain access to confidential
taxpayer information of political protesters.

Regulation of biological agents and toxins – 42 U.S.C.A.
Sec. 262a and 7 U.S.C.A. Sec. 8401 regulate biological agents and toxins.
If a person is involved with an organization that engages in domestic or international
terrorism, he or she is not permitted to gain access to these regulated agents.
Under the law, the Attorney General identifies individuals involved in “terrorism”
to the Department of Agriculture. Once the person is listed, he or she cannot
get access to any of the regulated agents or toxins. This provision will probably
not impact most people, however, it might impact someone such as a scientist
who might regularly use biological agents or toxins in their work.

Conclusion – The ACLU (as well as The Loyal Nine)
does not oppose criminal prosecution of people who violate the law, even if
they are doing it for political purposes. However, we do oppose the broad
definition of terrorism and the ensuing authority that flows from that definition.
One way to ensure that the conduct that falls within the definition of domestic
terrorism is in fact terrorism is to limit the scope of the conduct that triggers
the definition. Thus, domestic terrorism could include acts which “cause
serious physical injury or death” rather than all acts that are “dangerous
to human life.” This more narrow definition will exclude the conduct
of organizations and individuals that engage in minor acts of property damage
or violence.