Draconian Patriot Act exposed

By Daya Gamage
Foreign Service National Political Specialist (ret)
U.S. Department of State

Six weeks after the September 11 attacks on American soil, the U.S. Congress passed the “USA/Patriot Act,” nation’s hurried surveillance laws that expanded the government’s authority to check on its own citizens, while simultaneously reducing checks and balances on those powers like judicial oversight, public accountability, and the ability to challenge government searches in court.

The Senate version of the Patriot Act was sent to the floor with no discussion, debate, or hearings. In the House, hearings were held, and a carefully constructed compromise bill emerged with no debate or consultation with rank-and-file members, the House leadership threw out the compromise bill and replaced it with legislation that mirrored the Senate version. Neither discussion nor amendments were permitted, and once again members barely had time to read the bill before they were forced to cast a vote on it.

It should be mentioned that all the obnoxious provisions of the USA PATRIOT ACT were in operation until the promulgation of the Freedom Act of 2015: long fifteen years. In fact, some provisions were preserved in the Freedom Act.

Before I present the draconian provisions of the USA/Patriot Act, it should be noted here how the U.S. Ambassador Julie Chung – when having a discourse with Justice Minister Wijayadasa Rajapakshe – had “expressed her strong desire”, of course on behalf of Washington policymakers, “to see extensive discussions, both public and parliamentary” on Sri Lanka’s proposed Anti-Terrorism Bill which is envisaged to replace the current Prevention of Terrorism Act (PTA).

In a Twitter feed, Ms. Chung referring to what was discussed during that meeting with Minister Rajapakshe on 20 April, noted her concerns with regard to certain aspects of the proposed Bill which fall outside of international standards.

She further highlighted that it is important that “all voices – including civil society, academia, and lawmakers – are considered to ensure the legislation serves as an effective tool for combating terrorism without restricting freedom of expression or assembly.”

These disgraceful double-standards of Washington policymakers and lawmakers – and of course their overseas diplomats – in dealing with Sri Lanka’s ‘national issues’ since the advent of the separatist war in the north and the insurrection in the south in the 1980s are now very broadly dealt with by two personnel who worked within the U.S. Department of State for thirty years in the area of foreign affairs: One is this writer who is a retired Foreign Service National Political Specialist once accredited to the Political Section of the U.S. Embassy in Colombo, and the other, Dr. Robert K. Boggs, a retired Senior Foreign Service (FS) and Intelligence Officer who served as Political Counselor at the Colombo Mission with a very broad knowledge of India’s ‘role’ in Sri Lanka. Their manuscript ‘Defending Democracy: Lessons in Strategic Diplomacy from U.S.-Sri Lankan Relations” is nearing completion with alarming disclosures, provocative analyses and interpretations based on their up-close and personal knowledge and understanding how Washington used ‘double standards’ in handling its foreign relations reducing Sri Lanka to some level of a client state. Sri Lanka’s own infantile behaviour dealing with her foreign relations since the 1980s contributed too to become a client state allowing ‘national issues’ to become ‘global’ ones.

When Ambassador Chung ‘advice’ the Sri Lanka government – through its Justice Minister – to undertake a wider and broad scrutiny of the proposed anti-terrorism legislation, Washington’s ‘double-standards’ are well exposed when our memory goes back to the manner in which it steamrolled the USA PATRIOT ACT in September 2001 documented above.

This writer doesn’t see any Sri Lankan lawmaker questioning Ambassador Julie Chung, purposely ignoring the manner in which the USA/Patriot Act came into America’s statute books with draconian features, enforced for fifteen years until the Freedom Act was brought in.

The American Civil Liberties Union (ACLU) had expressed that the “Congress and the Administration acted without any careful or systematic effort to determine whether weaknesses in our surveillance laws had contributed to the attacks, or whether the changes they were making would help prevent further attacks. Indeed, many of the act’s provisions have nothing at all to do with terrorism”.

The USA PATRIOT ACT increased the government’s surveillance powers in four areas:

Records searches. It expands the government’s ability to look at records on an individual’s activity being held by third parties. (Section 215)

Secret searches. It expands the government’s ability to search private property without notice to the owner. (Section 213)

Intelligence searches. It expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information (Section 218).

“Trap and trace” searches. It expands another Fourth Amendment exception for spying that collects “addressing” information about the origin and destination of communications, as opposed to the content (Section 214).

It is frustrating to remind Ambassador Julie Chung, and Washington policymakers who guide her, the undemocratic features in the US anti-terrorism act when she uses ‘double standards’ – as Washington always engage dealing with international affairs of which very broadly analysed in Robert Boggs-Daya Gamage’s forthcoming book – to advocate that there exist certain provisions in the Sri Lanka-proposed Anti-Terrorism Bill ‘outside of international standards’.

When the Bush administration brought the Patriot Act, it had scant regard for ‘international standards’.

There are three overlying undemocratic aspects of the Patriot Act: torturing suspects, indefinite holding of suspects, and spying on citizens.

How did Washington round-up Sri Lanka government during Ranil Wickremasinghe’s premiership at the turn of this century to engage in torture in “third-party countries” that were not part of the Geneva Convention? Do we have to remind Ambassador Julie Chung of this?

During the 2002-2004 peace negotiations, (between the Sri Lanka government and LTTE mediated by Norway and the U.S. directly involving in it) Washington did not scruple to use its influence to persuade the Wickremasinghe’s Government, which had foreign and defence portfolios under it, to help the U.S. avoid accountability before the International Criminal Court (ICC). In the fall of 2002 various State Department officials pressed Prime Minister Wickremesinghe repeatedly to sign a bilateral agreement under Article 98 of the Rome Statute, the treaty that in 1998 established the ICC. Under the treaty, such a bilateral agreement would immunise the citizens of each signatory state from being surrendered by the other to the jurisdiction of the (ICC) Court. The Wickremasinghe government did sign such an agreement in November 2002.

It was not coincidental that in October 2002 the U.S. and coalition partners launched a “shock and awe” bombing campaign and invasion of Iraq as part of the Global War on Terrorism (GWOT). At the same time, more than 9000 U.S. troops were battling Taliban militants in Afghanistan. The Bush administration clearly wanted to shield U.S. soldiers from ICC prosecution for inevitable charges of war crimes. In a report in 2016 the ICC’s Office of the Prosecutor found “a reasonable basis to believe” that since May 2003 “at least 54 detained persons” in Afghanistan were subjected to grave crimes by U.S. armed forces, including “the war crimes of torture and cruel treatment.” The same report further alleged that from 2003 to 2004 members of the CIA committed grave crimes, including “rape and/or sexual violence” against “at least 24 detained persons” in Afghanistan and other states. Measures taken by Washington to protect its combatants abroad from criminal accountability are particularly questionable in light of subsequent USG pressure on Sri Lanka–a signatory of an Article 98 agreement–to submit to international investigations for war crimes. U.S. hypocrisy and double-standards well displayed.

In August 2003 Prime Minister Wickremasinghe covertly authorized the USG’s use of Sri Lankan airspace and Bandaranaike International Airport (BIA) for Washington’s so-called “extraordinary rendition and detention programme.” This meant that the CIA could use the airport for the transfer of prisoners to the custody of other foreign governments or to secret CIA prisons outside the U.S. known as “black sites.” Washington engaged in this practice when in fact, extraordinary rendition and detention is clearly prohibited by the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment.

There were at least two flights during June and August 2003 that used BIA to transport terrorist suspects. One flight operated by Richmor Aviation (a company that operated flights for the CIA for extraordinary rendition) is known to have landed in Sri Lanka during June 19-20, 2003 shortly after the apprehension in central Thailand of Mohammed Farik Bin Amin, alias Zubair Zaid, a Malaysian who is alleged to have been a senior member of Jemaah Islamiyah and al Qaeda. Documents inspected by this writer and his co-author Robert Boggs for their manuscript show that another Richmor aircraft flew from Washington, DC to Bangkok, and then transited BIA on August 13-14 before flying on to Afghanistan, Dubai and Europe. That flight coincided with the capture in Thailand of alleged Indonesian terrorist leader Riduan Isamuddin (a.k.a. Hambali) and Malaysian Mohammed Nazir Bin Lep, (a.k.a. Lillie). All three of these men reportedly were later detained and interrogated at CIA black sites and were later transferred to U.S. custody at Guantanamo Bay. Also in August 2002, the Sri Lanka government arrested a person wanted by the U.S. who was hiding in Sri Lanka and handed him over to the CIA.

The above is to remind Ambassador Chung of the manner in which Washington executed the Global War on Terrorism (GWOT) when she and her Washington-guided policymakers engage in ‘double-standards’ in ‘advising’ Sri Lanka how to draft ‘terrorism legislation’ to ‘keep with international standards’.

Section 802 of the USA PATRIOT ACT made domestic terrorists subject to the same punishments (torture) as international terrorists and defined domestic terrorism as: “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.”

The Patriot Act allowed for spying by the United States government on everyday people without warrant, by means of Foreign Intelligence Surveillance Act (FISA) Courts and direct legislation.

The American Civil Liberties Union points out how judicial review or oversight lacked under the Patriot Act: “Judicial oversight of these new powers is essentially non-existent. The government must only certify to a judge – with no need for evidence or proof – that such a search meets the statute’s broad criteria”.

Both domestically and internationally, the Patriot Act set a precedent of undemocratic legislation to prevent terrorism through violations of civil liberties. Through direct amendments and in conjunction with “brother bills,” the Patriot Act allowed for, pushed, and resulted in more undemocratic legislation, ultimately resulting in the US Congress-ratified Freedom Act of 2015.

The first major direct modification was the USA PATRIOT Act Improvement and Reauthorization Act of 2005, which made 14 provisions permanent and extended several controversial sections until 2009, such sections as: 206, which allowed the National Security Agency (NSA) to access FISA Courts and to wiretap any communication of a suspect; the other is Section 215, which allowed the NSA to collect every phone call made to and from the United States; and provisions from the Intelligence Reform and Terrorism Prevention Act of 2004, which “permitted the FISA Court to authorize surveillance and physical searches aimed at foreign nationals who are ‘engaged in international terrorism or activities in preparation for international terrorism”‘.

The biggest specific precedent created by the Patriot Act was the direct transition to the USA Freedom Act of 2015, which corrected some of the abuses allowed by the Patriot Act, but left others unchecked. Many of the major provisions of the Patriot Act were set to expire that year and instead of renewing them, the government introduced a new bill with less controversy. Drafters of the bill claimed that the government could only access certain data after submitting public requests to the FISA Court, marking a big difference from the Patriot Act. In 2015, a few major sections of the Patriot Act were set to expire, including Sections 206 and 215 mentioned above. Even without the Freedom Act, the legality of Section 215 was headed to the Courts regardless, as the United States Court of Appeals for the Second Circuit ruled that the Patriot Act was not enough justification to allow bulk metadata collection (Patriot Act 2017). Luckily, it never had to go farther because Congress scrapped the Patriot Act and got partially rid of that section, but the Freedom Act is by no means innocent of civil liberties violations.

Does Ambassador Julie Chung get it? And does Justice Minister Rajapaksha comprehend?

This clearly shows how the USA PATRIOT ACT of 2001 was in operation for a full fifteen years until certain changes were made in the Freedom Act of 2015.

As described recently by CNN International socio-political news presenter Fareed Zakaria:

“America’s unipolar status has corrupted the country’s foreign policy elite. Our foreign policy is all too often an exercise in making demands and issuing threats and condemnations. There is very little effort made to understand the other side’s views or actually negotiate. . . . All this evokes the inertia of an aging empire. Today, our foreign policy is run by insular elite that operates by mouthing rhetoric to please domestic constituencies—and seems unable to sense that the world out there is changing, and fast.” (xA)

The study undertaken by this writer and his co-author Dr. Robert Boggs should help readers to decide to what extent Zakaria’s troubling diagnosis is accurate and, if so, whether the U.S.-Sri Lanka experience offers relevant lessons for remedial action.

This writer’s intention is to underscore Washington’s double standards – well reflected by its ambassador recently when in conversation with Justice Minister Wijayadasa Rajapakshe – to bring some sense to authorities in Colombo.

At the time that the United States was pressuring Colombo to accept “national, international, and hybrid mechanisms to clarify the fate and whereabouts of the disappeared,” the USG had not itself ratified the UN convention of 2006 requiring state party to criminalize enforced disappearances and take steps to hold those responsible to account. Despite a resolution passed by the U.S. House of Representatives on November 19, 2020 calling on the USG to ratify the international convention, this still has not happened. The U.S.’ long history of rejecting accountability is strongly rooted in legislation.

The American Service-Members Protection Act (ASPA) was an amendment to the 2002 Supplemental Appropriations Act (H.R. 4775) passed in response to the 9/11 terrorist attacks and the launch of the so-called Global War on Terror. The ASPA aims to “protect U.S. military personnel and other elected and appointed officials of the Government against prosecution by an international criminal court to which the U.S. is not a party.” Among other defensive provisions the Act prohibits federal, state and local governments and agencies (including courts and law enforcement agencies) from assisting the International Criminal Court in The Hague. It even prohibits U.S. military aid to countries that are parties to the Court. As mentioned above, In 2002, during the administration of Prime Minister Wickremesinghe, the GSL signed with the U.S. an “Article 98 Agreement,” agreeing not to hand over U.S. nationals to the Court.

Washington and its ambassador in Colombo continue to engage in hypocrisy and double-standards when all this evidence is available in the public domain.

(The writer is a retired Foreign Service National Political Specialist of the U.S. Department of State once accredited to the Political Section of the U.S. Embassy, Sri Lanka)