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Patriot Act another RICO?

By Lee R. Shelton IV and James Hall
web posted February 4, 2002

The Racketeer Influenced and Corrupt Organizations (RICO) Act of 1970 and the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 may go down in the record books as two of the most notorious laws in U.S. History.  Both were passed by Congress in order to address the perceived nationwide crises of their respective times-- the former in an effort to crack down on organized crime and the latter in an attempt to protect America from the threat of terrorism.  But are these laws solving our immediate problems or simply creating new ones?

On October 26, 2001, President Bush signed the Patriot Act  into law. "Today, we take an essential step in defeating terrorism, while protecting the constitutional rights of all Americans," he proclaimed.  "With my signature, this law will give intelligence and law enforcement officials important new tools to fight a present danger."

Signed a month-and-a-half after the World Trade Center came tumbling down, this bill brought the first real sense of security back to many Americans since that fateful day in September.  Our president and congressional representatives stared terrorism in the face and threw down the gauntlet. The signing of this bill said that they meant business.  They were going to do everything in their power to eliminate the global threat of terrorism-- and they were going to start right in their own backyard.

Getting tough on terrorism.  That is the image Washington wanted to paint for the rest of America, but is that really what we have been given?

To start with, the bill was simply a knee-jerk reaction to a seemingly insurmountable problem.  In fact, it rocketed through both houses of Congress with such breathtaking speed that almost no one had time to read it before being expected to weigh in with a "Yea" or a "Nay."

Representative Ron Paul of Texas, one of only three Republican lawmakers to vote against the legislation, told Insight Magazine, "It's my understanding the bill wasn't printed before the vote-- at least I couldn't get it.  They played all kinds of games, kept the House in session all night, and it was a very complicated bill.  Maybe a handful of staffers actually read it, but the bill definitely was not available to members before the vote."  This fact alone should be reason enough for the law's immediate repeal.  It's one thing to claim to be taking a zero-tolerance position on terrorism, but it's another thing altogether to use a bill you haven't even read to make that claim.

The Patriot Act modifies existing laws, further expanding the powers of the federal government in areas like surveillance and information gathering. Essentially, many restrictions preventing the government from "spying" on U.S. citizens have been removed.  We have become a nation of potential suspects.

It should be pointed out that despite what many people believe, the Patriot Act does apply to U.S. citizens.  The portions of the bill that apply specifically to non-citizens mainly have to do with allowing foreigners into the country and granting the government the power to detain a terrorist "suspect" indefinitely without having to file formal charges.  Citizens, however, are susceptible to the security provisions in the bill.

Such provisions include "roving" warrants (Section 206).  If issued, federal law enforcement or intelligence agencies could serve a single warrant to any Internet service provider, regardless of whether a particular ISP was named in the warrant or not.  The feds could gain access to the electronic data of innocent citizens.

Another provision calls for "sneak-and-peek" warrants.  According to Section 213 of the Act, warrants may be issued allowing law enforcement officers to secretly search a private residence and indefinitely delay-- if such a delay is needed for "good cause shown"-- notifying of the property owner of the warrant.

Yet another provision allows the federal government to extend the Foreign Intelligence Surveillance Act (FISA) to include domestic criminal investigations.  Section 218 of the Patriot Act says that in requesting FISA powers, the Attorney General need only certify that foreign intelligence is a "significant purpose" of an investigation, and not "the purpose" as was the case before this bill was passed.

The granting of more surveillance powers doesn't stop there.  Financial institutions will also fall under heavier scrutiny.  The Act grants the Secretary of the Treasury "broad discretion" in imposing any of several special measures on U.S. financial institutions where international money laundering is suspected.  One of the goals of this is, according to Section 302, "to ensure that all appropriate elements of the financial services industry are subject to appropriate requirements to report potential money laundering transactions to proper authorities."  Local bank tellers may be joining the ranks of federal law enforcement officers.

If anyone actually thought the Patriot Act was passed as a tool to mainly combat the threat of future foreign terrorist attacks, they would be sorely mistaken.  Perhaps the most disturbing aspect of this law is how it addresses domestic terrorism.

Section 802 of the Act amends the current definition of "domestic terrorism" to include activities that "involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State." Clearly, this definition could be construed to include virtually any "dangerous" crime, be it at the federal, state, or local level.

In the not-so-distant future, we may see "terrorism" defined in such a way that just about every right wing militia group and pro-life organization could be considered a potential terrorist threat.  How would militias be linked to terrorism?  Think of Timothy McVeigh and Terry Nichols.  Pro-life groups?  Think of any maniac that shoots an abortion doctor or blows up a clinic.

Don't think it can't happen.  We have seen this mutation of seemingly harmless legislation before.  For example, the RICO Act, which had originally been drafted as a weapon against organized crime, has been used to go after the likes of pro-life activists.  If history is any indication, we will see otherwise law-abiding people suffer under the Patriot Act as well.

More to the point, RICO has a history of total betrayal to its stated original intent. All we have to do is examine the record on how it is continually used. The case example of a small businessman who was accused of antitrust violations stemming from bid contracts with a local government agency, illustrates the real world application of how the DOJ operates. The initial charges were stated as violations of acceptable bidding practices. Simple enough, if the law was broken, go to court and prove the prosecution's case to a jury. The defendant would have the opportunity to present evidence and testimony that might cast doubt upon the governments version of the alleged infraction. Isn't that the way the legal system is suppose to work?

Under the provisions of RICO, the original federal felonies considered racketeering activities included murder, intimidation of witnesses, kidnapping, obstructing justice, counterfeiting, theft of interstate shipments, white slavery, embezzlement of pension funds, certain federal drug offenses, bankruptcy fraud, mail fraud, and wire fraud. "Organized crime (racketeering) is conceptually defined by RICO as a pattern of racketeering activity committed by an individual or group either as part of an enterprise or against an enterprise... A pattern of racketeering activities is the enterprise. Such cases have led Lynch (1987a 661) to conclude that RICO is best categorized as 'the crime of being a criminal.' " RICO represented the reintroduction of in personam criminal forfeitures, which entitles successful plaintiffs to recover treble damages, cost, and attorneys fees. (see above source)

In essence RICO uses conspiracy law to trigger its provisions. So how does this apply to an antitrust charge? Well, in our example our businessman received immunity from State authorities that conducted an investigation. The Federal attorneys general amended their complaint to fall under the RICO provision. RICO allowed the federal government to lien all bank accounts and seize all company assets, BEFORE any trial could be conducted. "Since 1984, moneys and properties subject to seizure effectively become government property at the moment the initial crime was committed, a policy known as the 'relation back' doctrine" (Cloud 1987 821 822). Since the business operation was a legitimate community enterprise, the adverse impact to suppliers, customers and employees would be obvious. The company would be force to cease operations and close, well before any trial resolution. This compelled termination of business would result in effective bankruptcy, before any day in court. (see same source)

Consider this conclusion: "If virtually any criminal federation can be a RICO enterprise, and almost any two criminal acts can be a pattern of racketeering activity, then potential RICO liability exists whenever more than one person engages in more than one crime... RICO has swallowed the penal code" (Lynch 1987a 713). (see same source)

The civil penalties from a RICO charge conflicts with due process, double jeopardy, and due considerations. The guilt or innocence in our example was never established by jury verdict. The accused had no effective choice but to plead guilty. Can anyone in good conscience contend that the 'so called' intentions and promises that RICO claims to eliminate organized crime is constitutional or does not endanger regular citizens? When a government culture exists that allows prosecutors to apply a statute so broadly as the RICO record clearly demonstrates, no citizen can say he is not a "criminal of the state." And this all happened during the last month of the Ronald Reagan era. So much for placing such abusive powers in the hands of even the most trustworthy administrations.

With the passage of the Patriot Act you have all the ingredients for even more egregious criminalization of the average citizen than RICO. It is one thing to confiscate property to force a conviction, but it is wholly unacceptable to apply draconian measures to our own citizens, under the hysteria of bringing terrorists to justice. Just what is America protecting if it is not our constitutional rights? What are we preserving if not our Liberty from government despotism? This applies to both foreign and domestic threats. Do you want a society where the citizen becomes the "enemy of the state" because the state views her citizens as opponents against government excess? Let us demand common sense and eternal vigilance from our law makers to secure true protection for Americans.

Any safeguards promised by our government against an abuse of power should be taken with a grain of salt.  Remember, this is a government that has been systematically disarming its own citizens in the name of security, thereby removing the most effective safeguard against tyranny we could ever hope to have. When this same government asks for our trust and assures us that it is only doing whats in our best interests, we should proceed with caution.

James Hall is a regular contributor to Enter Stage Right. His web site, Breaking all the Rules, can be found at http://sartre.info. This is Lee R. Shelton IV's first contribution to Enter Stage Right. His web site, Ever Vigilant, can be found at http://www.evervigilant.net/

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