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April 26,
2003
The Other War
The Bush Administration
and the End of Civil Liberties
by ELAINE CASSEL
Our war on terror begins with al Qaeda,
but it does not end there. It will not end until every terrorist
group of global reach has been found, stopped, and defeated.
--President George W. Bush,
September 20, 2001
It didn't take President Bush to tell Americans
that the world changed on September 11, 2001. But it took Bush,
Attorney General John Ashcroft, and an unquestioning Congress
to change the legal foundation of what it means to be "free"
in America. The president declared from the start that it would
take more than military might to wage the fight. This war would
require a new arsenal of laws and regulations at home. And he
got them. If the September 11 suicide hijackers hated us for
our freedoms, as the president also said, today there is less
to hate.
The legal firepower behind the war on
terror consists of two pieces of legislation, the Antiterrorism
and Effective Death Penalty Act of 1996 and the USA Patriot Act
of 2001, as well as a host of executive orders and federal agency
regulations. Ashcroft, Bush, and numerous federal courts have
decreed that freedoms must be curtailed in the name of fighting
terror. But that formulation suggests they will be temporary.
Given the nature of terrorism, and of politics, that is extremely
unlikely.
Bush, after all, has said repeatedly
that this is to be a war of many years' duration, a life's work.
It will not stop until every terrorist threat the US cares to
identify is vanquished. It is a  global war without territorial
boundaries and without a known cast of enemies, save one--evil.
And it's being fought at home, too, in churches and town squares,
courtrooms and libraries.
At the center of this new body of terror
and homeland security laws lies a vague and amorphous definition
of its central term: What is terrorism? Government agencies and
departments use varying standards. But the USA Patriot Act defines
terrorism as "acts dangerous to human life that are a violation
of criminal law" that "appear to be intended to influence
the policy of a government by intimidation or coercion."
This definition is so broad that practically any act of civil
disobedience could be construed to violate the law. (A political
demonstration taking place in the path of an ambulance, for example,
could be termed "dangerous to human life.")
As many Arab-Americans have discovered,
individuals making contributions to Islamic-based charities that
turn up with "alleged terrorist ties" may wind up terror
suspects themselves. Under the Patriot Act, any organization
that engages in legitimate as well as illegitimate activities
can be presumed a terrorist organization for all purposes. And
the prohibited activity that lands a group on the government's
list need not consist of violent acts directed at people; anything
that is intended to destabilize a government or "influence"
its policy by coercion can be termed terrorism. Flooding a congressional
office with e-mails critical of government policies, and jamming
a server in the process--is that an act of terror? Some organizations
that use the Internet to ask people to e-mail members of Congress
fear that it might be so construed.
As well they should. For the war on terror
now encompasses a breathtaking range of new government powers
here at home. More than ever before, the mere fact of dissent
could make you a target in the war on terror.
The 1996 Antiterrorism
and Effective Death Penalty Act
To all my fellow Americans ... I say,
one thing we owe those who have sacrificed is the duty to purge
ourselves of the dark forces which gave rise to this evil. They
are forces that threaten our common peace, our freedom, our way
of life.
--President Bill Clinton, April 23, 1995,
speaking of Oklahoma City.
Most critics of the terror war's assault
on civil liberties mark its beginning with the Clinton administration's
Antiterrorism and Effective Death Penalty Act of 1996. But the
US government's propensity for spying on its own citizens on
the professed grounds of national security goes back much further,
and it's not just a relic of the Hoover days. As recently as
the 1980s, the FBI conducted surveillance of Americans involved
in a variety of causes. Activists who supported rebel groups
in El Salvador, attended rallies protesting American aid to the
Salvadoran military, signed petitions, or possessed reading material
associated with the Committee in Solidarity with People of El
Salvador (CISPES) were targeted for activities labeled as "terrorist"
or "leftist."
These investigations went on for more
than two years, until they were finally halted by congressional
hearings and the exposure of documents obtained under Freedom
of Information Act requests. Congress denounced the scope of
the anti-CISPES investigations, and in 1994 enacted a law protecting
First Amendment activities from FBI investigations. That law
was expressly repealed in the Antiterrorism Act of 1996.
The 1996 Antiterrorism and Effective
Death Penalty Act was the Clinton Administration's comprehensive
response to both political and personal violent crime. Making
the death penalty "effective" meant making it harder
to appeal convictions of capital offenses. In terms of fighting
terrorism, the law was a reaction to bombings of the World Trade
Center in 1993 and the Oklahoma City federal building in 1995.
Like the Patriot Act, it too, passed the Senate easily--91-8.
(Clinton also cited the suspicious crash of TWA Flight 800 and
the bombing at Atlanta's Olympic Village in 1996 as further proof
of the dangers.) According to its critics, including Georgetown
University Law School Professor David Cole, the law never yielded
any significant protection against terrorism--everything a "terrorist"
does was already illegal--although it did lead to substantial
incursions on constitutional rights, such as:
Allowing the government to deport immigrants
based on undisclosed evidence; Making it a crime to support even
the lawful activities of an organization labeled as a terrorist
group by the State Department; Authorizing the FBI to investigate
the crime of material support for terrorism based solely on activities
protected under the First Amendment, notably specifically allowing
agents to attend religious services at Muslim mosques "undercover";
Freezing assets of any US citizen or domestic organization believed
to be an agent of a terrorist group, without specifying how an
"agent" was identified; Expanding the powers of the
secret court that administers the Foreign Intelligence Surveillance
Act (FISA), where federal judges sit in secret to consider--and
mostly rubber-stamp--Justice Department requests for widespread
surveillance of "terrorists." The surveillance methods
in question include pen registers and "trap-and-trace"
logs, methods that can capture incoming and outgoing telephone
calls; Repealing the law that barred the FBI from opening investigations
based solely on activities protected under the First Amendment--such
as the anti-CISPES investigations--and allowing such surveillance
to go forward if the individuals were believed to be associated
with any person or organization labeled as "terrorist;"
Allowing the Immigration and Naturalization Service to deport
(mostly Muslim) citizens upon the order of INS officials. The
evidence typically was not disclosed to the deportees, and the
decision of the official was not subject to challenge in a federal
court.
The USA Patriot Act
of 2001
How will we fight and win this war? We
will direct every resource at our command--every means of diplomacy,
every tool of intelligence, every instrument of law enforcement,
every financial influence, and every necessary weapon of war--to
the disruption and to the defeat of the global terror network.
-
-President Bush, September 20, 2001
With little debate, the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001 was passed
just six weeks after the September 11 attacks. Though several
elected officials expressed trepidation at what appeared to be
a dismantling of the first, fourth, fifth, and sixth amendments
to the Constitution, only one member of the Senate, Russell Feingold
(D-Wisc.), had the courage to vote against it.
The media was slow to pick up on the
controversial provisions of the act, which, within its more than
275 pages, amended dozens of existing criminal and civil statutes.
It wasn't until mid-2002, when the Justice Department began to
hand down indictments under the act, that people started to take
notice.
The act expanded guilt by association
to the point that the most tenuous connection to a "terrorist
organization" (as designated by the Secretary of State)
can now lead to charges. Several groups of people have been indicted
for operating terrorist cells in Portland, Buffalo, Detroit,
and Moscow, Idaho. The trial in the Detroit case began in the
third week of March and is expected to last for six weeks or
more. Some charges against Muslim charities have led to plea
bargains to drop terrorist charges in exchange for pleas to minor
tax or fraud charges. The government's successes in the courtroom
have not, to date, matched John Ashcroft's bravado in announcing
the indictments in public press conferences. But the chilling
effect of being arrested for crimes of terror cannot be underestimated,
as many American citizens and resident aliens have learned.
Some of the more drastic incursions on
civil liberties resulting from these Patriot Act provisions:
It is a crime for anyone in this country
to contribute money or other material support to the activities
of a group on the State Department's terrorist watch list. Organizations
are so designated on the basis of secret evidence, and their
inclusion on the list cannot be challenged in court. Members
of any such targeted organization can be deported even if they
have not been involved in any illegal activities. The government
freely admits that some of the groups it will designate are broad-based
organizations engaged in lawful social, political, and humanitarian
activities as well as violent activities.
The FBI can monitor and tape conversations
and meetings between an attorney and a client who is in federal
custody, whether the client has been convicted, charged, or merely
detained as a material witness. New York City attorney Lynne
Stewart (the court-appointed representative of Sheik Abdel Rahman,
who was convicted in the 1993 World Trade Center bombing) has
been indicted for aiding and abetting terrorism based on conversations
with her client. Her trial is set for January 2004, and the prosecution
is clearly intended as a warning: Attorneys representing people
charged with terrorism-related crimes will be watched as closely
as the defendants.
Americans captured on foreign soil and
thought to have been involved in terrorist activities abroad
may be held indefinitely in a military prison and denied access
to lawyers or family members. No federal court can review the
reason for the detention. Such is the plight of Yaser Hamdi,
detained in a Navy brig in Norfolk, Virginia, whose family and
attorney made valiant efforts to gain access to him. The Fourth
Circuit Court of Appeals overturned a federal trial judge's order
that Hamdi be allowed to meet with the federal public defender.
The FBI can order librarians to turn
over information about their patrons' reading habits and Internet
use. The librarian cannot inform the patron that this information
has been provided. Librarians, on the whole, are outraged at
their new role; some have taken to posting signs in the library
warning users not to use the Internet, others to destroying their
logs of Internet users. One librarian said to a Washington Post
reporter, "This law is dangerous.... I read murder mysteries--does
that make me a murderer? I read spy stories--does that mean I'm
a spy?"
Foreign citizens charged with a terrorist-related
act may be denied access to an attorney and their right to question
witnesses and otherwise prepare for a defense may be severely
curtailed if the Department of Justice says that's necessary
to protect national security. Jose Padilla, the American Muslim
fingered by Ashcroft last year as a would-be "dirty bomb"
builder, is a case in point.
Resident alien men from primarily Middle
Eastern and Muslim countries must report for registration. And
hundreds of the ones who have reported have been detained and
arrested for minor immigration infractions. It recently came
to light that immigration authorities are refusing to let the
men appear with their attorneys, a refusal that is a violation
of Bureau of Citizenship and Immigration Services (BCIS, formerly
the INS) regulations.
Lawful foreign visitors may be photographed
and fingerprinted when they enter the country and made to periodically
report for questioning.
The government can conduct surveillance
on the Internet and e-mail use of American citizens without any
notice, upon order to the Internet service provider. Internet
service providers may not move to quash such subpoenas.
The Transportation Security Administration
(TSA) can search any car at any airport without a showing of
any suspicion of criminal activity.
The TSA can conduct full searches of
people boarding airplanes and, if the passenger is a child, the
child may be separated from the parent during the search. An
objection by a parent or guardian to the search will put the
objector at the risk of being charged with the crime of obstructing
a federal law enforcement officer and tried in federal court.
Travelers in Portland and Baltimore have reported such arrests.
The TSA is piloting a program to amass
all available computerized information on all purchasers of airline
tickets, categorize individuals according to their threat to
national security, and embed the label on all boarding passes.
The Computer Assisted Passenger Prescreening System (CAPPS II)
program is designed to perform background checks on all airline
passengers and assigns each passenger a "threat level."
Passengers will not be able to ascertain their classification
or the basis for the classification.
The TSA distributes a "no-fly"
list to airport security personnel and airlines that require
refusal of boarding and detention of persons deemed to be terrorism
or air piracy risks or to pose a threat to airline or passenger
safety. This is an expansion of a regulation that since 1990
has looked out for threats to civil aviation. Names are added
daily based upon secret criteria. Several lawsuits that challenge
these regulations are now pending, some from irate passengers
who were mistaken for people on the list.
American citizens and aliens can be held
indefinitely in federal custody as "material witnesses,"
a ploy sometimes used as a punitive measure when the government
does not have sufficient basis to charge the individual with
a terror-related crime. The 1984 material witness law allows
the government to detain citizens at will for an arbitrary period
of time to give testimony that might be useful in the prosecutions
of others. A Jordanian man picked up a few days after September
11 was held more than nine months before being released. And
last week a federal judge in Oregon ordered that Mike Hawash,
a software engineer and long-time naturalized American citizen
who has been held in solitary confinement in a federal prison
for more than a month, be questioned by April 29, 2003. It is
notable, however, that the judge has already conducted a secret
hearing that determined Hawash's detention to be lawful.
Immigration authorities may detain immigrants
without any charges for a "reasonable period of time."
The BCIS need not account for the names or locations of the detainees,
and what constitutes a "reasonable period of time"
is not defined.
American colleges and universities with
foreign students must report extensive information about their
students to the BCIS. BCIS in turn may revoke student visas for
missteps as minor as a student's failure to get an advisor's
signature on a form that adds or drops classes. College personnel
cannot notify students to correct the lapse in order to save
them from deportation. To a very large extent, campus police
and security personnel have become agents of the immigration
authorities.
Accused terrorists labeled "unlawful
combatants" can be tried in military tribunals here or abroad,
under rules of procedure developed by the Pentagon and the Department
of Justice. All it takes to be named an unlawful combatant is
the affidavit of a Pentagon employee, who is not required to
provide the rationale for his or her decision, even to a federal
judge. (In the case of Yaser Hamdi, the federal appellate court
ruled that it has no authority to look behind this affidavit
and question the determination.) Unlawful combatants are also
denied counsel and contact with family members. In fact, hundreds
of "unlawful combatants" are still being held in Guantanamo
Bay, Cuba, without attorneys, without family contact, and under
conditions said by some to be tantamount to physical and psychological
torture. A federal court ruled in March that these persons had
no access to the federal courts since they were on Cuban, not
American, soil.
A warrant to conduct widespread surveillance
on any American thought to be associated with terrorist activities
can be obtained from a secret panel of judges, upon the affidavit
of a Department of Justice official. If arrested as a result
of the surveillance (as was the case with the attorney, Lynne
Stewart), the defendant has no right to know the facts supporting
the warrant request.
The FBI can conduct aerial surveillance
of individuals and homes without a warrant, and can install video
cameras in places where lawful demonstrations and protests are
held. Facial recognition computer programs are used to identify
persons the FBI deems suspicious for political reasons. An ACLU
employee in South Carolina was recently indicted for the federal
offense of being in a "restricted area" at the Columbia,
South Carolina airport in October 2002, when President Bush made
a political campaign appearance. (The South Carolina AG, who
happens to be the son of retired Senator Strom Thurmond, authorized
the indictment.)
Most of these restrictions on liberty
were not part of the letter of the Patriot Act; they were shaped
by means of rules and regulations adopted in agencies and departments
of government with little notice to the public. That's because
the Patriot Act granted sweeping new powers to agencies like
the Department of Justice, the FBI, and BCIS to go their own
way in prosecuting the war on terror.
Will the Clinton/Bush expansion of federal
powers help much in protecting the country from terrorism? That
is an imponderable, since we can't know what might have happened
by now, or what might happen going forward, in their absence.
But the arrests hyped by Ashcroft so far don't suggest that his
new powers are yielding much. One of the most notorious cases
involved Jose Padilla, an American-born Muslim arrested for allegedly
plotting to build a dirty bomb. Padilla is still being held without
charges, and many believe it's because the government has no
real case against him. (The file on Padilla is secret, obviously,
but some news accounts have suggested his sole crime was attempting
to download "dirty bomb" construction plans from the
Internet.) Several people charged with terrorist-related acts
have pled guilty to some charges, such as visiting an al Qaeda
training camp (as defendants in Buffalo have recently done),
or to lesser non-terrorist-related offenses (money laundering
instead of financing terrorist activities), in order to avoid
the risk of conviction and longer sentences. The Justice Department
seeks grand jury indictments of the "kitchen-sink"
variety--throw in everything remotely chargeable, and then declare
victory when the defendant pleads to one or two charges.
What we do know about these laws is that
they allow government agents to be more aggressive and, when
they wish, more abusive. Most of the people indicted in Buffalo
and Portland have been charged with being terrorist sympathizers
because they were in the presence of people themselves labeled
as terrorist sympathizers (visiting their homes, for instance)
or because they had contributed to a non-profit organization
that the government has decreed to have a connection to terrorism
somewhere in the world. Attorney Lynne Stewart was indicted for
the "crime" of zealously representing a convicted terrorist
she was court-appointed to defend.
The proposed Domestic
Security Enhancement Act of 2003
There is no Patriot Act II. That said,
it doesn't mean that we aren't constantly thinking and discussing
how to make things better, safer.... So if there are some leaks...
it's about what we've been thinking.
--Attorney General John Ashcroft, March
4, 2003
On February 7, 2003, the nonprofit Center
for Public Integrity obtained a leaked draft of what is being
called Patriot Act II. John Ashcroft immediately went on the
defensive, taking pains to call it a mere trial balloon--something
to get the debate moving. The version posted on the center's
site belies such talk; it indicates that the draft was delivered
to Vice President Cheney and House Speaker Dennis Hastert.
Against a backdrop of perpetual war,
it's hard to imagine that Congress will put up much of a fuss
over Patriot II. Who could vote against better domestic security?
Here are some of the more unsettling proposals:
Broadens the definition of Americans
who could be under surveillance without a warrant, and mandates
further coordination between state, local, and federal law enforcement
for the purpose of conducting surveillance. Translation: The
feds can instruct your local police to keep an eye on you.
Creates new crimes and punishments relating
to nonviolent activities linked to terrorist groups, which could
include making charitable contributions to a group on the State
Department's terrorist list. The list includes organizations
that provide humanitarian aid to Muslims across the world. Under
Patriot I, the government needs to show that the contributor
knowingly "aided and abetted" terror, a tall order
since most people who give to Islamic charity and relief organizations
are motivated by humanitarian rather than political goals.
Expands surveillance powers to grant
easier government access to bank accounts, home computers, telephones,
and credit card accounts based upon subpoenas issued by the Department
of Justice. The entities subpoenaed to obtain information about
you could not refuse to provide the information (an expansion
of current powers under Patriot I). Evidence obtained that would
link a person to terrorism or terrorist groups (as defined by
the State Department) would not be disclosed except to a court
(individuals would have no right to know why they were charged)
and pretrial detentions would be mandatory. You would have little
possibility of defending the charges.
Makes some nonviolent acts punishable
by the death penalty if they are linked to broader "terrorist
activities."
Empowers the federal government to conduct
its own autopsies of victims of terrorism and "other deadly
crimes," presumably any type of murder.
Amends the Freedom of Information Act
to curtail even further the public's ability to obtain information
about people detained or charged. If you were arrested for a
crime of terror, your accuser could remain nameless.
Forces any terrorism suspect to give
a DNA sample to the federal government, the results of which
could then be shared with state and local law enforcement.
Grants government the power to strip
away the citizenship of any American involved in the lawful activities
of an organization deemed to have terrorist ties. Such people
could be held indefinitely, or deported to any country that agreed
to take them.
Increases federal powers over immigrants
by means that include: expedited deportation proceedings, the
criminalization of even minor paperwork violations (such as a
student's failure to report that he or she dropped a course),
and even more limited judicial review of immigration rulings.
Just in case Patriot II doesn't make
it into law, Congress is scheduling hearings to extend Patriot
I beyond 2005, when some of its more controversial measures are
set to expire.
How Much Is Too Much?
"We will...defend freedom, and justice,
no matter what the cost."
Attorney General John Ashcroft, April
9, 2002
"Freedom" has been part of
the post-September 11 mantra. The terrorists hate our freedoms.
We have to defend our freedoms. We toppled Saddam Hussein's regime
so that Iraqis might claim their God-given freedom. Weighed against
the Bush administration's legal actions at home, this line of
rhetoric is ironic, to say the least.
Patriot I was enacted in an atmosphere
of panic, paranoia, and patriotism. Ashcroft mounted quite an
offensive when he laid it out before Congress. If you dared to
criticize in that hour of peril, you were by definition soft
on terrorism. The press now admits that it rolled over for Patriot
I; the handful of journalists who questioned its provisions got
hate mail and death threats for their trouble. But it left even
some Republicans thinking Ashcroft had gone too far.
Though there isn't much they can do about
it. We may have Congress to thank for the Patriot Act itself,
but Ashcroft's executive orders and the regulations hastily promulgated
by the agencies under his control are where the real action has
been. In 2002, more than 1,200 secret warrants were issued by
Ashcroft's Justice Department, FBI field offices, and the secret
Foreign Intelligence Surveillance Court (FISA) to conduct surveillance
on all manner of personal activities and records. Indeed, people
recently arrested for "crimes" allegedly uncovered
as a result of such secret surveillance have been stunned to
learn that the Patriot Act specifically disallows any judicial
review of the legality of the warrant or of the evidence obtained
as a result. Secret detentions, secret evidence, secret trials.
What's next? Secret executions?
The administration engaged in much finger-pointing
recently when Cuba secretly tried some of its political dissidents.
The trials were in secret, appeals were summarily denied, and
harsh sentences were meted out. Cuba claims the dissenters were
a threat to its security, echoing Ashcroft's justification for
his Justice Department's heavy-handed tactics. Already in this
country we have closed trials and, for the first time in American
history, closed arguments in a federal appeals court. The Fourth
Circuit Court of Appeals in Richmond, Virginia, a federal court
that sometimes makes the U.S. Supreme Court look liberal, is
closing to the public the appeal of Zacharias Moussaoui, who,
according to the Justice Department, was involved in planning
the September 11 terrorist strikes.
The government is appealing U.S. District
Court Judge Leonie Brinkema's ruling that the Justice Department
must give Moussaoui and his lawyers access to the government's
star witness against him. Judge Brinkema says that the Justice
Department is cloaking its case in such a shroud of secrecy that
a fair public trial, as required by the 6th Amendment, will be
difficult if not impossible. The Justice Department has suggested
that if it loses on appeal--not likely, given the Fourth Circuit's
propensity to rule for the government--it may remove Moussaoui
to Guantanamo, Cuba and try him in a military tribunal. And no
US court can touch him then.
Some parents of Afghan prisoners in Guantanamo
filed a lawsuit challenging their sons' continued detention;
it was tossed out by a District of Columbia federal judge. Lawyers
for the plaintiffs argued that the detention was a violation
of the Geneva Convention on the treatment of POWs. But the administration
has termed them (like Yasir Hamdi) unlawful combatants: They
were not wearing the uniform of any recognized country, and thus
they are not entitled to the protections of international law.
The Court, in one of the all-too-many post-September 11 rulings
fraught with catch-22 reasoning, said that the detainees are
not in the United States, but in a foreign country, and hence
the doors of U.S. courthouses are closed to them. The decision
places a Guantanamo prisoner in legal limbo, even though he is
imprisoned all the while by the American government on a US military
installation.
Those who expect that elected officials
and the courts will one day decide to restore our liberties have
not spent much time looking at history. The Supreme Court has
traditionally taken a hands-off approach to curbs on presidential
power in wartime--and this, after all, is to be a war of many
years' duration. Chief Justice Rehnquist wrote a prescient book
on this subject; Justice Antonin Scalia has said, in essence,
that the Bill of Rights is not a contract at all, just a rough
guide that courts were free to treat as circumstances required.
This sentiment was recently echoed by Justice Stephen Breyer
as well.
The Supreme Court will likely hear the
first cases to test the limits of the Patriot Act and other attacks
on freedom in its 2003-2004 term. In the meantime, President
Bush is handily convincing the Senate to approve his right-wing
judicial nominees one after another. Once his judges don their
robes, the federal judiciary will be, by some estimates, 65 percent
or more conservative Republican. The Supreme Court has become
so predictably political that the loss of just one liberal justice--or
frequent swing vote Sandra Day O'Connor--will tip the court all
the way to the right. And since Congress has amiably ceded its
duty to uphold the Constitution in the laws it enacts, we will
be left with exactly one branch of government, the executive.
Elaine Cassel
teaches law and psychology and practices law in the District
of Columbia and Virginia. She is a contributor to CounterPunch
and Findlaw.com's Writ, and keeps a watch on the Bush Administration's
rewriting of the Bill of Rights on her blog site hosted by Minneapolis, Minnesota's
City Pages. This article
originally appeared in City
Pages, edited by longtime CounterPunch contributor Steve
Perry. Cassel can be reached at: ecassel1@cox.net
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