What does the Fourth of July mean? Fireworks? A day off? Barbecue? Flags?
The Fourth of July, of course, is our national day of independence. It is the day we, as Americans, celebrate our overthrow of British colonial rule via our victory in the Revolutionary War. We celebrate our forefathers, the founders of this country, who had the foresight to include a Bill of Rights in our Constitution so that our government could not engage in the invasive and persecutorial acts that caused us to break with Great Britain.
Unfortunately, our government is now becoming ever more invasive and persecutorial, and our forefathers must be rolling over in their graves, according to many in the state of Montana. But rather than simply complain, these individuals and groups have done something about their grievances: They have struck blows to the heart of the document that reminds them most of the British colonial yoke, the USA PATRIOT Act, an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.
At least one part of the act is working: It is uniting America. However, the legislation’s authors probably didn’t have it in mind when writing the bill that Americans would unite against the PATRIOT Act.
In a country where the 2000 presidential election split the electorate right down the middle, Americans today are perhaps as deeply divided, politically, as at any point in our nation’s history since the Civil War; yet opposition to the PATRIOT Act is bringing Americans of all political hues together. Passed on Oct. 26, 2001, just over a month after the attacks of September 11, 2001, the final draft of the act was presented to lawmakers so soon before a vote that few actually had time to read its contents. The bill met some resistance in the house, but received only one “nay” vote in the Senate, from Sen. Russ Feingold (D-Wisc.). While the Act’s focus is on combating terrorism, a cacophony of critics charge that it also directly violates several enumerated civil liberties guaranteed Americans in the Bill of Rights.
The critics have taken action. What began with one city council resolution in Northampton, Mass., has blossomed into a nationwide movement: Currently, four states—Alaska, Hawaii, Maine and Vermont—and 330 cities and counties nationwide have passed resolutions expressing concern for citizens’ civil liberties in the wake of the PATRIOT Act, with many asking Congress to repeal unconstitutional portions. Six of those 330 communities are in Montana: Missoula, Dillon, Bozeman, Beaverhead County, Lewis and Clark County and Eureka. Whitefish City Council has a similar resolution vote on the agenda for their upcoming meeting as well.
Just who are these Montanans who are standing up and drawing a line in the sand around American freedom, and what do they think this is, anyway—a democracy?
BIG BROTHER’S NEW RULES
Whitefish City Council is used to hearing talk of zoning and other land regulations. It is not used to impassioned citizens quoting Ben Franklin and Thomas Jefferson. But at last week’s meeting, that’s exactly what happens. Whitefish lawyer Sharon Morrison exhumes the lofty words of Thomas Jefferson, who wrote that the price of democracy is eternal vigilance. Some Council members appear intrigued; a few offer the body language of bored high school students forced to sit through a government lecture when it’s sunny outside. With a slide projector beaming sections of the PATRIOT Act onto a council chambers wall, Morrison explains exactly why it is that she and other members of the ad-hoc Northwest Montana Coalition in Defense of the Constitution seek a Council resolution supporting citizens’ rights.
Specifically, the coalition is concerned with sections 213 through 216 of the PATRIOT Act, Morrison says.
Section 213 allows law enforcement to delay the issuance of warrants until after searches, and does not define how much delay is acceptable, except to note that it should occur “within a reasonable period.” Section 214 expands the federal government’s legal surveillance capacity by loosening the litmus test for gaining permission to tap phone lines. Section 215, which Morrison tells councilors is probably the most troublesome, permits increased government access to individual personal records, such as those from banks or libraries. Permission to obtain such records used to require an affidavit taken under oath and a specific list of what an investigator was searching for. Under the PATRIOT Act, the investigator does not need to provide specifics of what the search is for, and under Section 216, the investigator makes an “application” for a search warrant, rather than having to present a sworn affidavit under oath. If a law enforcement officer presents this application, the judge’s discretion becomes a moot point, as Sections 215 and 216 state that the magistrate “shall”—not “may”—provide the requested court order.
“They don’t have to prove it. They just have to say it,” says another coalition member, Whitefish businessman Eric Funk, of the new, lesser burden of proof for law enforcement.
Section 215 has now been expanded via a last-minute rider attached to the Intelligence Authorization Act, which was signed into law on Dec. 13, 2003, the day Saddam Hussein was captured, and therefore received little attention. The provision expands the definition of financial institutions subject to government scrutiny from banks to virtually any business anywhere that deals with money—from real estate to casinos. In other words, almost everything may be subject to government peeking. This same measure originally drew harsh criticism when it appeared as part of the Domestic Security Enhancement Act, commonly referred to as “PATRIOT Act II,” and ultimately contributed to that bill’s failure. However, attached to a mammoth intelligence bill, the measure has been passed with relatively little fanfare.
When Sharon Morrison is finished outlining the provisions of the Act that the Coalition feels are threatening, her husband, former Montana Supreme Court Justice Frank Morrison, rises to address the Council. Like his wife, Frank Morrison speaks strongly and stays focused. And when he talks, people listen.
“We did not need a PATRIOT Act to stop 9/11,” he says. “In fact, we had the information. We blew it. We’ve had all the law enforcement tools all along to do the things that we have to do. Between 1978 and the time the Twin Towers were destroyed, we uncovered more than 300 plots to destroy us. We have the tools and the technology. The FBI and the CIA weren’t communicating, and they should. That part of the PATRIOT Act is good. But we should not go about the world saying that we want people to live in freedom while we take it away from our own people.”
In addition to the Council, about 25 citizens listen intently to Morrison’s words. One is Mark Rice. While the Morrisons wear professional attire, Rice wears cowboy boots, blue jeans and suspenders. Rice worked on Ronald Reagan’s presidential campaign, and, before he retired to build his wife a home in Eureka, he worked as a defense subcontractor for military aviation companies Boeing, Northrop Grumman, and Honeywell.
If one took the position that opposition to the PATRIOT Act is a “liberal issue”—a claim made by some Republicans towing the Bush administration line—one would have to assume that Rice would be against altering the PATRIOT Act.
But opposition to the PATRIOT Act is not a liberal issue; it’s an American issue, and Rice is testament to that, which is why he spoke before Eureka City Council about two months ago and convinced his elected representatives to endorse a resolution calling for a congressional repeal of any parts of the PATRIOT Act deemed unconstitutional. “I’m a conservative hawk,” Rice says. “That doesn’t mean I don’t believe in the Constitution.”
THE ROAD TO RESOLUTION
Town meetings like this one in Whitefish have taken place all over the state. The first was in Missoula, where City Council passed a resolution in February of 2003. That effort began with John Fletcher, a retired Fact & Fiction employee and self-described “local politics junkie” who attends most City Council meetings. Fletcher helped organize meetings of concerned citizens at the Jeannette Rankin Peace Center, and then offered a draft resolution, based on the one passed by Northampton, Mass., to then-Missoula Councilman John Torma.
Torma was happy to champion the cause.
“The ability for the government to—within the law—violate constitutionally protected freedoms, whether or not the government is actually doing it, is frightening, because you just don’t know who’s going to use it when,” Torma says. “That’s what the framers of both our state and federal constitutions fought vigorously against, and if we don’t fight to keep that, we’re going to lose it.”
In fact, there have already been two cases in which courts have ruled that the government has used the PATRIOT Act to do just that which Torma warns of.
In May, the FBI issued a rare public apology for entering and seizing property from the home of Brandon Mayfield—an Oregon lawyer who converted to Islam—without his knowledge. Prior to a judge’s dismissal of the case once it became clear that Mayfield’s fingerprints did not match those of a Madrid terrorist bomber, the lawyer was held for two weeks, at first in solitary confinement and later in a prison mental wing, though he was never charged with a crime. In early June, a jury in Boise, Idaho, acquitted Sami Omar Al-Hussayen, a University of Idaho graduate student. Al-Hussayen had been locked up for almost a year on visa fraud charges before he was charged under the PATRIOT Act with offering “expert advice or assistance” to terrorists on Jan. 9, 2004. Al-Hussayen had agreed to serve as webmaster for an Internet site that promoted the study of Islam. The site provided a link to another site that the U.S. has listed as a terrorist organization, and that site provided several other links, one of which was to yet another site, this one advocating suicide bombing. The jury found that Al-Hussayen himself did not advocate any form of terrorism, much less practice it. A U.S. District Judge in California also issued a ruling that the Act’s “expert advice and assistance” provision is so vague that “it could be construed to include unequivocally pure speech and advocacy protected by the First Amendment.” Before the Boise jury set him free, Al-Hussayen spent approximately 15 months behind bars.
“People have just been arrested and held for these really questionable reasons,” Torma says. In passing the Missoula resolution, he and the Missoula City Council went through three drafts. It took them nearly seven months, but in the end, they were able to vote unanimously in favor of a resolution reaffirming Missoula’s allegiance to the civil liberties guaranteed by the Bill of Rights and both the U.S. and state constitutions.
While the language was less direct than that which Fletcher had originally proposed, Torma believes Missoula’s actions may have emboldened other Montana communities to pass resolutions of their own.
And so they did. Taking note of what had happened in Missoula, Cynthia McCulloh, a Dillon resident working for Internet service provider Blue Moon Technologies, with no experience mobilizing citizens, nonetheless began organizing public meetings about the PATRIOT Act—informal events in local coffee shops where word-of-mouth invitations were delivered to groups such as her mother’s bridge club. McCulloh gathered petition signatures of support for the resolution as well, with the help of others, including her mom.
“Folks came together completely without partisan concerns, which is the way it should be,” McCulloh says.
Dillon passed a resolution more biting than Missoula’s on April 16, 2003, asking Congress to repeal all sections of the PATRIOT Act that take away rights guaranteed by the Bill of Rights. Beaverhead County took a cue from the county seat and passed a resolution of its own 12 days later.
McCulloh says that the secret to her success was simple: positive thinking.
“I went to public officials and law enforcement assuming that, since they’d taken the oath to protect Montana and the U.S. constitutions, they would have the same concerns that I did.”
Now that the resolution is passed, however, McCulloh’s thinking isn’t quite so optimistic in regards to Montana’s congressional delegation taking up the matter at the state level.
“The letters from both senators to me have not been nearly reassuring enough for me to think that they are taking this seriously,” she says. “[Sen. Conrad] Burns writes that, ‘I will be keeping a close watch on this to make sure your civil liberties are protected.’ And my response to that is, ‘Well, I’m supposed to have the Constitution, too.’ It’s the Constitution that’s supposed to safeguard me, not my senator. I’m not supposed to have to trust one individual. I’m really not supposed to have to worry about this.”
While McCulloh’s efforts in Dillon and Beaverhead County were only loosely organized, Bozeman’s road to resolution was pushed through with aid from ReclaimDemocracy.org, an organization dedicated to “restoring citizen authority over corporations.” Jeff Milchen, the group’s executive director, says he thinks the Bozeman City Commission’s 3–2 vote in favor of the resolution was swayed by the nearly overflowing crowds that gathered to raise concerns with the PATRIOT Act.
“When people make a direct personal sacrifice to do what they think is right and turn out in huge numbers to express their opinion, it makes a real difference,” Milchen says. “I think there’s a lot of folks who are dangerously illusioned, in a sense, that clicking on an e-mail that MoveOn.org circulates on the Web is going to change the world. Things aren’t that easy. But when folks go out and personally testify, that does make a big difference in the world.”
One of those who testified was Brian Close, a Bozeman tax attorney, even though doing so proved to be a financial sacrifice.
As Close describes it, he was sitting in the meeting and not planning to speak, but merely observing. As the commission went about its regular business, one of Close’s clients, local property manager Marilyn Hendry, approached him, saying, “You’re going to testify to support the PATRIOT Act, aren’t you?”
Close says he explained that as a lawyer he had researched the Act and thought it was “wrong for about a dozen reasons.”
At this point, says Close, Hendry said, “If you speak [against it], I’m going to fire you.”
Antagonized, Close became motivated to speak. He told the commission that parts of the Act violated the First, Fourth, Fifth and Sixth Amendments. He said that petitioning the local government in such a form was well within the mainstream of American political tradition, drawing an analogy to the abolitionist movement.
The resolution passed and the next day, Close says, Hendry made good on her word and fired him.
Was it worth it?
“My role as a citizen in this community is more important to me than an immediate pocket-book return,” he says.
While there were dramatic fireworks at the Bozeman meeting, Lewis and Clark County’s resolution, passed two months ago, went through with little ado on a 2–0 vote. The idea began with Wayne Lewis, a disabled Vietnam-era veteran who has been active in various social causes for years, including work in El Salvador and Nicaragua, and with Helena’s Servants for Peace and Justice.
“I am an activist,” Lewis says. “There is some fear factor when you’re an activist, and there’s these Orwellian type of laws that could make it a lot more difficult to speak your mind, almost a crime.”
Lewis found a sympathetic ear in County Commissioner Ed Tinsley, who felt it was of the utmost importance for the commissioners to help the county make a statement in support of the Constitution.
“Local governments are where the rubber hits the road in our system,” Tinsley says. “The feds like to hand down mandates to us, and occasionally we have to step up and say we don’t agree with your mandate. We’ll follow the law but attempt to sway leaders to change the law.”
To Tinsley, the PATRIOT Act itself is less patriotic than those who oppose it.
“It is patriotic to question your leaders and government,” Tinsley says. “If anything, telling people that they shouldn’t speak out is unpatriotic.”
The one city in Montana that has heard arguments like Tinsley’s but disagreed is Butte, where City Councilman Mike Sheehy has presented a resolution twice, losing first by a 6–4 vote, and then a second time 7–5.
“Several Council people said that they would gladly give up their rights if it meant that their children and their grandchildren would be safe from ‘those animals,’ is what they said,” according to Sheehy.
What Butte wouldn’t go for, however, Eureka would, due in no small part to the efforts of Mark Rice and Frank Morrison.
When the two men traveled to Community United Methodist Church in Bigfork on May 18 to share the news of Eureka’s resolution passage with the nearby community, Rice didn’t mince words with why he felt it was imperative to take a stand.
“We see the beginning of tyranny being set up in our country,” he said.
While he isn’t sure Montanans can concretely see it that way currently, Reclaim Democracy’s Milchen is nonetheless proud of his fellow citizens across the state who have gotten involved in defending America’s civil liberties.
“Tyranny may be a strong word for mostly white people in Montana at this point,” Milchen says, “but it’s certainly not a strong word for folks who have been illegally detained…The threats are fairly remote here, so it takes real patriotism to take the responsibility to get out and actively defend [against] what’s happening.”
THE GHOST OF BEN FRANKLIN
Do the actions of one small city council add up to much compared to 342 pages of federal legislation?
No, says almost everyone interviewed for this story.
But, they say, when you put that city council or county commission together with the other 329 communities and four states, people begin to take notice. The resolutions passed across the country so far represent over 52 million citizens—some who argue that the PATRIOT Act is unconstitutional, with others charging that, regardless of its legal status, it doesn’t seem to work. Although the State Department first released a report earlier this year saying that terrorism declined last year, Colin Powell set the record straight on June 13: That report was a “big mistake,” Powell said, and only counted about half of the months of 2003. In fact, there were more incidents of terrorism in 2003 than there have been since 1982, when Israel invaded Lebanon. Additionally, a statistical analysis from Syracuse University’s Transactional Records Access Clearinghouse shows that in the two years after the 9/11 attacks, 2,681 charges of terrorism had been concluded. Only 879 of those people charged were convicted of a crime, and only five of those received sentences of 20 years or more. This means that in just two years, the Justice Department, at least temporarily, snagged 1,802 innocent people in its widely cast net. One of them was a University of Idaho grad student.
Back inside the comfortable confines of Whitefish City Council chambers, the thought of government SWAT teams swooping in with helicopters and snatching up innocent citizens as terrorists seems pretty far-fetched. But it must have seemed fairly unlikely to the people of Moscow, Idaho, too—until it happened. This is why Montanans are now going on the record to defend the inalienable liberties that have made our country great, before a threat is imminent. Eric Funk is among these Montanans, and he asks Whitefish to join in on a pre-emptive strike against the specter of a police state by passing a resolution at Council’s July 6 meeting.
“This resolution is the way Americans do things,” Funk says. “It’s a grassroots movement from the people to the representative government. Right now, voting for this resolution is the most important contribution you can make for your country. We are passionate about protecting our United States. But it won’t be worth defending unless we act now to protect the U.S. Constitution and the Bill of Rights.”
Funk and his fellow members of the Northwest Montana Coalition in Defense of the Constitution are acting now. Missoula, Dillon, Beaverhead County, Bozeman, Lewis and Clark County and Eureka have already acted. These people who have dedicated their time—not for personal gain, but for the love of the American freedoms which this country fought so hard to attain—they are our freedom fighters. They are the true patriots, those who keep in their hearts and minds, and often on the tips of their tongues, the words of Benjamin Franklin, who said, “They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”