The following are the remarks delivered by Clark Kissinger at the panel on “Civil Liberties Since September 11” at the Socialist Scholars Conference in New York City on April 14, 2002. The other panelists were Leonard Weinglass, Abdeen Jabara, Michael Ratner, and Lynne Stewart. The panel was moderated by Michael Steven Smith.

CLARK KISSINGER:  Thank you, Michael.  A great deal has been said about the USA Patriot Act, as well it should, and I will describe some of the more odious provisions of this legislation. But first I want to set it in a larger context. 

You know in the first two months after September 11^th, events unfolded incredibly rapidly.  Let me just give you an idea.  On September 15^th the Congress gave a grant of military authority to the President of the United States that was more sweeping than the Bay of Tonkin Resolution.  

The President was authorized to use US military forces against any country, organization, or individuals that he felt were connected with the September 11^th incidents.  And there was no restriction as to domestic or foreign.  He was authorized to deploy military forces domestically as well as overseas.

And the Congress also said, by the way, don’t even bother to come back to us for, to be renewed after 60 days according to the War Powers Act -- we grant you that in advance.  And only one member of the Congress, Barbara Lee, had the courage to vote against this.

Then on the 17^th of September Ashcroft demanded that Congress pass within one week a new Patriot Act which hadn't even been introduced yet.  And at the same time that this was going on, the military was being deployed domestically as you certainly saw here in New York, but all over the country, and the roundups and detentions without charge were beginning.

Also within the first week the New York State Legislature passed a series of draconian laws, you can now get 20 yeas to life for “hindering” the investigation of terrorism in New York. 

Five states introduced legislation to expand the death penalty, two more that didn't have the death penalty introduced legislation to bring it back, all giving terrorism and September 11^th as their excuse. 

On October 8^th Bush created by executive order a cabinet-level position, the Office of Homeland Security, and he appointed Governor Thomas Ridge to this post, the Director of Homeland Security, or as I call him, the Vaterlandsicherheitsführer.  Ridge, you know, is a death penalty junkie like Bush, who signed 220 death warrants while he was Governor of Pennsylvania, including not one but two death warrants on Mumia Abu Jamal.

Then on October 12^th the Secretary of Education Paige called on all schools across the country to have all school children recite the Pledge of Allegiance simultaneously on that day.  The one school board that wouldn't go along with it, Madison, Wisconsin, was excoriated in the national press for it.

On October 25^th Vice President Cheney said that all these changes that you are seeing are permanent, and he referred to it as “the new normalcy.” 

On October 26^th Bush signed the USA Patriot Act into law, and I've been told that in the following days the ACLU's office in Washington got calls from several congressmen's office asking what was in the law that they just passed.  We're talking about a piece of legislation that's hundreds of pages long and was simply rammed through. 

Then, on October 31^st, Ashcroft announced the surveillance of lawyer-client conversations to be official at that point, as Lynne will be telling us about later.  And on November 8^th Ashcroft announced that the Department of Justice was being reorganized on a wartime footing.

On November 15^th President Bush issued the executive order establishing military tribunals, which Michael will be going into. 

And finally, on December 6^th, Ashcroft told the Senate Judiciary Committee that questioning these new acts of the administration only aids the enemy.

The US Patriot Act deals with many things, including the detention of aliens, the surveillance of financial transfers, governmental powers to obtain records, the relaxations of safeguards on search and seizure, the exchange of information between agencies, new criminal offenses, and electronic surveillance.  It's an enormous piece of legislation that consists of pages of insertions and deletions, and you've got to go and look at the original statute to see how it's being amended.  People to this day are still trying to find all the little hidden time bombs that are included in the law.

I want to give you some sort of idea of what's there by honing in on a few provisions to give you the flavor of it.  For example, sections 215 and 218 now allow secret courts to issue orders for surreptitious entry, physical searches, wire taps, internet intercepts, including temporary e-mail addresses like Hot Mail.  What's also authorized is roving wiretaps. That is, no longer is it a tap on a particular telephone -- it's a tap on you, and wherever you go and whatever telephones you use anywhere can then be tapped under these provisions.

All this is now going to be done without the traditional requirements of probable cause and particularized suspicion.  That is, the standards that were set up under the Foreign Intelligence Surveillance Act, which Len Weinglass is going to be telling us about, will now be used. Originally the government said, look, we can do these unconstitutional things because we're not going to use them in criminal prosecutions. We're only going to use them to spy on the Russian embassy.  It's only going to be used for foreign intelligence and so it's okay to do it.

Now they come back to us and say, you know, these things worked so well we want to use them in domestic prosecutions as well.  And so what we have is the falling away of particularized suspicion and the requirements of probable cause, and instead we have laws now saying that the court shall issue, when the Department of Justice comes in and certifies that the investigation underway is for the purposes of national security or combating terrorism.

Section 213 authorizes “sneak and peek” for all criminal investigations.  And by the way, this section is not a part of the “sunset provision.”  We are all told in the press that all of this law is going to go out of effect in four years. It's not.  These laws don't go away, you know. Once they come in, they're going to get renewed when they expire, but there's whole sections of the USA Patriot Act that are not even covered by the so-called sunset provision, and one of them is the sneak and peek.

What sneak and peek means is that they can now issue a search warrant, come in surreptitiously, search your premises, and they don't even tell you about it.  There's no more knock on the door, sir, we have a warrant to search your place for these particular items, and give you a receipt for what they take. That's all gone.  They can now wait as long as they want to even tell you that they conducted the search.

Section 203 allows for the sharing of criminal intelligence information between federal agencies, including secret grand jury proceedings.  You know the grand jury was originally set up to protect people from crazy allegations that weren't true.  To look at them in secret, and see if there's any reason to bring you to trial. 

Now, however, grand juries are going to be used for coercive investigations. Either you testify before the grand jury, or you go to jail, and then your testimony, far from being secret, is now going to be turned over to the FBI, to the CIA, to the National Security Agency, and so on.  And this sharing between agencies, incidentally, is another way by the back door of bringing the CIA back into domestic spying. 

Section 216 requires that the courts order the installation of surveillance of all to and from information on telephone and internet communications whenever the US attorney certifies to the court that the information to be obtained is relevant to an ongoing criminal investigation.  It requires this; there's not any judicial discretion that's involved there. 

And what I'm talking about here is the FBI's Carnivore device that they will put on internet service providers. It's not really going to distinguish between content and the who it’s from or who it's to information. They're going to be able to record all the web pages that you visit and so on. 

And finally, section 802 creates the whole new crime of “domestic terrorism.”  And I love the definition of this crime.  “Acts dangerous to human life . . . if they appear . . . to be intended to influence the policy of a government by intimidation or coercion.”  So if things that you do merely “appear to be intended” to coerce government policy, you can now be prosecuted under this new law.

I could go on and on, but you get the point.

Looking at all this it's tempting, of course, to use the “f” word.  And indeed many people have suggested, as Michael did a few minutes ago, that September 11^th was maybe our Reichstag fire and the US Patriot Act was our Enabling Act.  Yet America's not a country that's defeated in world war, in the throws of a great depression, or in which the political center has collapsed.

Perhaps a more apt analogy is the fall of the Roman Republic and the initiation of the Roman Empire.  Because what we have witnessed over the last few years is an amazing grasp of power by the executive branch.  There has in fact been something of a rolling coup going over the last few years that began with the attempt by the Christian fascists to oust Clinton from office.  Then came the extralegal seizure of the presidency after the 2000 election. And now the whole panoply of measures in the wake of September 11^th.

And save for a few pious wishes and petty amendments, the Democratic Party has made it clear that there is no crime of empire that it will not condone or be party to.  This seizure of power by a small group, Cheney, Rumsfield, Ashcroft et al., and all these measures are justified by the declaration of a permanent state of war, a state of war that the US is declaring on the rest of the world.

I recently used a short quote from George Orwell's 1984 to describe the situation, where he wrote:  “The consciousness of being at war, and therefore in danger, makes the handing over of all power to a small caste seem the natural, unavoidable condition of survival.” 

I will venture this one prediction, that the US has now embarked on a whole new course.  I don't know how it's going to turn out, whether it's going to lead to a police state at home and military domination of the world, or whether it's going to end in the spiraling out of control of the contradictions unleashed by this new course, leading to social upheaval and perhaps even revolution. Or whether it will be something in between.

But I do not believe that US society is ever going to return to the old normalcy.  And just as the Roman Empire never returned to the institutions of the Roman Republic, our Rubicon has now been crossed. 

And to the extent that the fascist analogy is applicable we need to remember the famous epigram of Pastor Martin Niemoeller. You remember, first they came for the Communists, and then they came for the Jews, and so on. Here it's first they came for the Arabs, and then they came for their lawyers! [gesturing to Lynne Stewart] 

There's three points to remember out of that famous quotation, three lessons.  The first is that when fascism comes, it comes by steps and degrees.  They pick off the opposition one at a time.  So the second point is a corollary that to prevent a police state you must first come to the defense of its very first victims.  And third, in the process of losing our rights, there comes a point of no return.

This is a time that's going to put us all to the test.  And it's a time that calls for resistance.  By the way, this is why my organization is called Refuse & Resist!, not Analyze & Agonize. 

That resistance may take the form of people fighting to free those being held in detention either through litigation, agitation, or “exfiltration.” 

Resistance may take the form of courageous school administrators refusing to turn over the records of foreign students to the FBI, or it may take the form of students seizing those records for safekeeping when administrators refuse to do the right thing. 

Resistance may take the form of supporting our service men and women who refuse to take part in illegal acts of war.  Or it may take the form of defying new laws and measures that violate our rights of free expression and association.

But resist we must.