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Faculty calls for resistance to federal PATRIOT Act’s ‘infringement’ of rights

| 02 June 2004

In an unusual unanimous vote, the Berkeley Division of the UC Academic Senate, at a special meeting last month, approved a resolution challenging the federal PATRIOT Act and its application on campus.

By a 105-0 vote, Senate members on May 6 condemned the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) for provisions that, in the words of the resolution, “violate basic civil rights of students, faculty, and staff of the University of California at Berkeley.”

The faculty called on Chancellor Robert M. Berdahl and his successor to “take every legally protected step to challenge and resist” any law-enforcement actions under that act that violate civil rights or civil liberties, citing particularly the exercise of free speech and religious activities protected by the First Amendment and the Fourth Amendment’s prohibition against unreasonable searches and seizure.

In addition, they urged the chancellor to designate a single person or office to handle all PATRIOT Act requests for information, and to empower that designee to refuse to accept subpoenas or other requests that violate the Constitution.

“The important thing is that the staff be protected from having to respond to unconstitutional subpoenas under the PATRIOT Act,” said Daniel Wilson, professor of German and one of the resolution’s 10 co-sponsors.

Berdahl said that, to a large extent, that concern has been addressed.

“From the get-go, we established that we would not comply with any subpoenas under the PATRIOT Act without conferring with legal counsel,” the chancellor said. “Already, campus counsel Mike Smith is the point person, and no action on a subpoena can occur without my approval.”

He said he concurred with the intent of the senate’s resolution, but said the chancellor’s office could not be bound to a specific course of action dictated in advance of a full understanding of the circumstances of a particular case.

“We are certainly troubled by the notion of secret subpoenas and other aspects of the PATRIOT Act,” said Berdahl. “A cloak of secrecy does not serve the interests of justice. On the other hand, I cannot agree to simply defy the federal government under all circumstances related to the PATRIOT Act.”

The resolution’s backers said their measure was not intended as criticism of the chancellor, but instead sought to provide the faculty’s strong support for standing up to abuses of constitutional rights in the name of national security.

The PATRIOT Act, passed in the immediate wake of the Sept. 11, 2001, terrorist attacks, allows greatly expanded law enforcement access to records and communications, with little or no court oversight. Of particular concern to universities is that it allows access, without a warrant, to student, library, bookstore and medical records, and forbids disclosure that such records have been sought or turned over. In addition, it allows the indefinite detention or deportation of non-citizens even if they have not been charged with a crime.

Taken together, these provisions have raised the ire of civil libertarians around the country. At least four states and hundreds of municipalities, including the city of Berkeley, have passed resolutions opposing such government policies that impair constitutional rights. Although educational institutions in general have been slower to respond, faculty senates at a number of universities, ranging from Muhlenberg College in Pennsylvania to the University of Oregon and Stanford University, have gone on record in opposition to some of the act’s provisions, according to Mark F. Smith, director of government relations for the American Association of University Professors.

Within the UC system, Berkeley was the first to pass such a resolution. On May 21, the Academic Senate at UC Santa Cruz approved without dissent a 15-point resolution, drafted by its Committee on Academic Freedom, that is based in part on a model resolution drafted by the ACLU. Meanwhile, the Academic Senates at UC Davis and UC Irvine are weighing approval of the same language Berkeley endorsed.

The AAUP’s Smith said that to the best of his knowledge, most of the university resolutions passed to date have been largely symbolic, with general language protesting the PATRIOT Act’s infringements on academic freedom and the pursuit of knowledge that is a university’s mission. He did not know of any legal challenges by universities to PATRIOT Act subpoenas, but noted that, because of the act’s secrecy provisions, “It’s difficult to get this kind of information.”

One key component of the Berkeley faculty resolution is the call for a single campus conduit for all PATRIOT Act subpoenas and other legal requests. Such a person could be in a position to resist apparently unconstitutional requests in court — something the legislation, with its penchant for secrecy, makes it difficult for the target of an investigation to do.

“There’s currently no way to challenge these provisions in court, because the person about whom the information is sought will never know the information was sought,” Wilson said. “If a subpoena was refused [by the chancellor’s designee], then a court challenge could be mounted.”

Wilson said the UC Office of the President’s general counsel’s office had signed off on the language in the resolution.

He suggested that simply by throwing down the gauntlet, the Academic Senate may have averted some potential law enforcement probes at Berkeley, where to date no PATRIOT Act subpoenas have been received: “My guess is that as a result of this action, we won’t see any subpoenas on campus, because the FBI doesn’t want to see this law challenged in court.”

The AAUP’s Smith agreed. “I think that logically, that makes sense,” he said. “UC Berkeley has a clout that few other institutions can match, with its instant identification as a major institution of higher learning.”

The Academic Senate is empowered by the UC Regents to play a major role in running the university, including approving the curriculum, setting degree and admission requirements, advising on the budget, and sharing “its views on any matter pertaining to the conduct and welfare of the university.” Although this system of shared governance is far from universal in academia, Wilson said he hopes the senate’s involvement will bolster foes of the PATRIOT Act at other schools.

“From the beginning, we have hoped that the passage of this resolution at Berkeley will send a signal to the country, and that other universities will follow suit,” he said. “But we also feel the Berkeley chancellor has a great deal of influence in the university community around the country, and we hope that he or his successor will provide leadership in this area.”

On Wednesday, June 9, a meeting to discuss implementation of the Academic Senate resolution will be held. Participants will include Chancellor Berdahl and other top administrators, leaders of the Academic Senate, the sponsors of the Senate resolution, and university counsel Michael Smith.

The full text of the Academic Senate resolution on the PATRIOT Act is available at academic-senate.berkeley.edu/division/divisions.html.

The December 2003 issue of California Monthly featured coverage of the PATRIOT Act controversy on campus, including Q&As with Haas School of Business Dean Tom Campbell (who opposes the act’s provisions) and Boalt Hall School of Law Professor John Yoo (who helped write the legislation). See www.alumni.berkeley.edu/Alumni/Cal_Monthly/December_2003/Patriot_vs_patriot_.asp.