FOCUS
Hawai'i can help save Bill of Rights

By Robert M. Rees
Moderator of 'Olelo Television's "Counterpoint" and Hawai'i Public Radio's "Talk of the Islands"

Now that it has convened, it's time for the Legislature to think about joining the resistance to the federal government's unconstitutional excursions into our basic liberties, prompted by the USA Patriot and Homeland Security acts.

Bob Laird • USA Today

Signed into law on Oct. 26, 2001, the act gives new powers to domestic law enforcement and U.S. foreign intelligence agencies while eliminating the safeguards — many of which were installed following the 1974 disclosure that the FBI had been spying on Martin Luther King and more than 10,000 other U.S. citizens — that allowed the courts to monitor these agencies.

The Patriot Act includes measures that permit eavesdropping on confidential communications between lawyers and their clients in federal custody, that give the attorney general power to detain indefinitely citizens of other nations even if there has been no crime, that give the attorney general the power to designate religious and political domestic organizations as "terrorist" and that permit the FBI to subpoena customer records from bookstores, libraries, credit-card companies and hospitals without so much as a suspicion of a crime.

Under the Patriot Act, so named to impugn the patriotism of its opponents, the government may spy on your Web surfing merely by telling a judge anywhere in the U.S. that surveillance could lead to "relevant" information. If the government merely asserts this, the application must be granted.

The Patriot Act and new executive orders allow U.S. foreign intelligence agencies — the CIA, the National Security Agency — to spy on Americans. Under the new rules, for example, the CIA can obtain a wiretap without probable cause, just by saying it suspects the target to be an agent of a foreign government. All information obtained by the CIA may then be shared with the FBI, which was prohibited from doing such a wiretap to begin with.

The resistance to these Orwellian inroads into our Bill of Rights is coming from groups and communities scattered across the country. For example, the Association of American College Registrars and Admissions Officers has instructed its 10,000 members that — the views of Attorney General John Ashcroft notwithstanding — a subpoena or court order must accompany FBI requests for nonconsensual releases of information about foreign students and faculty.

Ashcroft maintains that the Patriot Act allows schools to release this information to the FBI without notifying those targeted. The Association of Registrars has responded that the Immigration and Naturalization Service, which is building its own database on 200,000 foreign students, is entitled to information under immigration law, but the FBI is not.

Another prong of the resistance to the Patriot Act is being led by a new national grass-roots organization, the Bill of Rights Defense Committee. In just a little over a year since its founding, it has helped to persuade 21 communities, from Amherst, Mass., to Santa Fe, N.M., to pass resolutions urging that municipal resources not be used in support of federal activities that violate civil rights.

Most of these resolutions have no legal heft and are meant to be symbolic. The resolution from the Flagstaff, Ariz., City Council, for example, "requests" that city departments "continue their strong commitment" to basic freedoms.

The Oakland, Calif., City Council's resolution, passed under Mayor Jerry Brown, a former governor of California and a former presidential candidate, opposes the Patriot Act and urges California's congressional delegation to work to repeal it.

According to an Oakland council press release, supporting the passage of the resolution were the Oakland Library Advisory Commission, Filipinos for Affirmative Action and the Labor Immigrant Organizing Network.

One of those testifying in favor of the Oakland resolution was a retired librarian, Zoia Horn, who 30 ago was jailed for refusing to testify in the trial of anti-war activists. Explained Horn this time around, "As a librarian, I've always felt that the First Amendment assures that the people have the right to think ... "

A resolution from Madison, Wis., appears to have more teeth than Oakland's. After "expressing concern that the USA Patriot Act threatens civil rights and liberties," Madison's resolution forbids profiling based on race, ethnicity or citizenship.

It also prohibits, unless there is a showing of probable cause, "the recording, filing and sharing of any intelligence information ... even if acting under powers granted by the USA Patriot Act or executive orders." This is aimed primarily at FBI requests for library lending and research records.

Madison's resolution also forbids any city enforcement of immigration laws.

A resolution from the Eugene, Ore., City Council goes at least as far as Madison's. It requires that, "To the greatest extent legally possible, no city resources, particularly administrative or law-enforcement funds, will be used for unconstitutional activities conducted under the USA Patriot Act or recent executive orders."

Does this mean that the Eugene Police Department will reject what it sees as unconstitutional requests from federal authorities? Well, yes. Eugene police declined to cooperate last year with a federal roundup of men of Middle-Eastern ancestry.

Wrote the Los Angeles Times about the Eugene vote of last Nov. 25: "Under pressure from a campaign that drew together liberals and Libertarians, Democrats and even a few Republicans, the Eugene City Council ... joined a growing list of local governments calling for a full or partial repeal of the Patriot Act, part of a nascent nationwide effort organizers hope will persuade Congress to undo the law."

The Bill of Rights Defense movement, begun in November 2001, has reached Hawai'i. In Hilo, Nick Veltre and Roger Christie are leading the drive for a Big Island resolution. Because this effort is intertwined with the Hawaii Cannabis Ministry — an organization whose slogan is "We use cannabis religiously and you can, too" — it will lack credibility among those willing to toss out the baby with the bath water.

The Big Island effort is intertwined also with the defense of what it describes as "perfectly legal assault weapons like the AR-15." States Veltre, "I know a lot of boys buying new toys before they take the Second Amendment away, too. My hunter safety course is in mid-January. Wanna come?"

It's time for all of Hawai'i, not just a special-interest group, to come to the defense of the Bill of Rights with a single-minded anti-Patriot Act resolution passed by both houses of the state Legislature.

The Bill of Rights Defense Committee's national director Nancy Talanian — who proudly notes that her organization's location in Northampton, Mass., was the site of Shay's Rebellion in 1786 and later of an "underground railroad" depot in the 1850s — says national momentum is building, but that Hawai'i would be the first state to pass such a resolution. "That," she adds, "would be awesome."

Hawai'i's resolution could begin by paraphrasing the recent resolution passed by a town meeting in Amherst: "The citizens of Hawai'i are concerned that actions of the attorney general of the United States and the U.S. Justice Department pose significant threats to constitutional protections."

Like the resolutions of Eugene and Flagstaff, the Hawai'i resolution should urge our congressional delegation to seek repeal of the Patriot Act.

Is this too far removed from our Legislature's purview? Well, just last year our state Senate, by a vote of 19-2,requested appointment of women to the provisional government of Afghanistan.

Also introduced last year, but not passed, was a resolution from state senators Avery Chumbley, Suzanne Chun Oakland, Carol Fukunaka, Les Ihara and Brian Kanno that would have asked Congress to earmark a "significant portion" of all military dollars "for peace-making."

If the Legislature may venture, as it should, into the areas of how other countries govern themselves, and of how Congress allocates the U.S. defense budget, then surely it can resolve to defend the Bill of Rights by asking that Hawai'i not use taxpayer money to support unconstitutional activity.

This modest rebellion, in the form of publicly expressed aloha for our Bill of Rights, would gain national attention. It would bring others into the discussion. It would educate. In the larger scheme of things, it could be one of the most important of 3,000 or so bills and resolutions the Legislature will consider this year.