From: [EMAIL PROTECTED]
Subject: [R-G] Moving toward a police state (or have we arrived?)
www.HumanRightsNow.org November 20, 2001
Moving toward a police state (or have we arrived?)
Secret military tribunals, mass arrests and disappearances,
wiretapping & torture
By Michael Ratner
I live a few blocks from the World Trade Center. In New York, we are still
mourning the loss of so many after the attacks on our city. We want to
arrest and punish the terrorists, eliminate the terrorist network and
prevent future attacks. But the government's declared war on terrorism, and
many of the anti-terrorism measures, include a curtailment of freedom and
constitutional rights that have many of us very worried.
I wrote the above paragraph and much of the article that follows toward the
end of October. At that time, the repressive machinery then being put into
effect was already terrifying. Since that time the situation has gotten
unimaginably worse; rights that we thought embedded in the constitution and
protected by international law are in serious jeopardy or have already been
eliminated. It is no exaggeration to say we are moving toward a police
state. In this atmosphere, we should take nothing for granted. We will not
be protected, nor will the courts, the congress, or the many liberals who
are gleefully jumping on the bandwagon of repression guarantee our rights.
We have no choice but to make our voices be heard; it is time to stand and
be counted on the side of justice and against the antediluvian forces that
have much of our country in a stranglehold.
The domestic consequences of the war on terrorism include massive arrests
and interrogation of immigrants, the possible use of torture to obtain
information, the creation of a special new cabinet office of Homeland
Security and the passage of legislation granting intelligence and law
enforcement agencies much broader powers to intrude into the private lives
of Americans. Recent new initiatives -- the wiretapping of attorney-client
conversations and military commissions to try suspected terrorists --
undermine core constitutional protections and are reminiscent of
inquisitorial practices.
Although it is not discussed in this article, the war on terrorism also
means pervasive government and media censorship of information, the
silencing of dissent, and widespread ethnic and religious profiling of
Muslims, Arabs and Asian people. It means creating a climate of fear where
one suspects one's neighbors and people are afraid to speak out.
The claimed necessity for this war at home is problematic. The legislation
and other governmental actions are premised on the belief that the
intelligence agencies failed to stop the September 11th attack because they
lacked the spying capability to find and arrest the conspirators. Yet,
neither the government nor the agencies have demonstrated that this is the
reason.
This war at home gives Americans a false sense of security, allowing us to
believe that tighter borders, vastly empowered intelligence agencies, and
increased surveillance will stop terrorism. The United States is not yet a
police state. However, even a police state could not stop terrorists intent
on doing us harm. In addition, the fantasy of Fortress America keeps us from
examining the root causes of terrorism, and the consequences of decades of
American foreign policy in the Middle East, Afghanistan and elsewhere.
Unless some of the grievances against the United States are studied and
addressed, terrorism will continue.
MILITARY COMMISSIONS: THE PERUVIAN OPTION
On November 13, President Bush signed an executive order establishing
military commissions or tribunals to try suspected terrorists. Under this
order non-citizens, whether from the United States or elsewhere, accused of
aiding international terrorism, at the discretion of the President, can be
tried before one of these commissions. These are not court-martials, which
provide far more protections. The divergence from constitutional protections
the executive order allows are breathtaking. Attorney General Ashcroft has
explicitly stated that terrorists do not deserve constitutional protections.
These are "courts" of conviction and not of justice.
The Secretary of Defense will appoint the judges, most likely military
officers, who will decide both questions of law and fact. Unlike federal
judges who are appointed for life, these officers will have little
independence and every reason to decide in favor of the prosecution. Normal
rules of evidence, which provide some assurance of reliability, will not
apply. Hearsay and even evidence obtained from torture will apparently be
admissible. This is particularly frightening in light of the intimations
from U.S. officials that torture of suspects may be an option. Rules of
evidence help insure the innocent are spared, but also that law enforcement
authorities adhere to what we thought were evolving standards of a civilized
society.
Unanimity among the judges is not required even to impose the death penalty.
Suspects will not have free choice of attorneys. The only appeal from a
conviction will be to the President or the Secretary of Defense. Incredibly,
the entire process, including execution, can be conducted in secret and the
trials can be held anywhere the Secretary of Defense decides. A trial might
occur on an aircraft carrier and the body of the executed "buried" at sea.
The President is literally getting away with murder.
Surprisingly, a number of prestigious law professors (e.g. Lawrence Tribe
and Ruth Wedgwood) have accepted and even argued in favor of these
tribunals. The primary claim is that it might be necessary to disclose
classified information in order to obtain convictions. This is a pretext.
There are procedures for handling classified information in federal courts
as was done in the trial of those convicted in the 1993 bombing of the World
Trade Center. It certainly does not provide a reason for sending suspects
into a "justice" system akin to that which the US condemned in Peru. The
1993 trials also demonstrate that these trials can be held in federal
courts.
Trials before military commissions will not be trusted in either the Muslim
world or elsewhere. Nor should they. They will be viewed as what they are --
"kangaroo courts." How much better to demonstrate to the world that the
guilty have been apprehended and fairly convicted. A better solution would
be for the US to go to the U.N. and have the UN establish a special court
for the trials. Judges from different legal systems including that of the
US, Muslim and civil law countries could constitute such a court.
WIRETAPPING ATTORNEY-CLIENT COMMUNICATIONS
At the heart of the effective assistance of counsel is the right of a
criminal defendant to a lawyer with whom he or she can communicate candidly
and freely without fear that the government is overhearing confidential
communications. This right is fundamental to the adversary system of justice
in the Untied States. When the government overhears these conversations, a
defendant's right to a defense is compromised.
Now, with the stroke of pen, Attorney General Ashcroft, has eliminated the
attorney-client privilege and will wiretap privileged communications when he
thinks there is "reasonable suspicion to believe" that an "inmate may use
communications with attorneys or their agents to further facilitate act of
violence or terrorism." He says that approximately one hundred such suspects
and their attorneys may be subject to the order. He claims the legal
authority to do so without court order; in other words without the approval
and finding by a neutral magistrate that attorney-client communications are
facilitating criminal conduct. This is utter lawlessness by our country's
top law enforcement officer and is flatly unconstitutional. This wiretapping
of attorney-client communications has already begun.
THE NEW LEGAL REGIME
The government has established a tripartite plan in its efforts to eradicate
terrorism in the United States. President Bush has created a new
cabinet-level Homeland Security Office; the Federal Bureau of Investigation
is investigating thousands of individuals and groups and making hundreds of
arrests; and Congress is enacting new laws that will grant the FBI and other
intelligence agencies vast new powers to wiretap and spy on people in the
United States.
THE OFFICE OF HOMELAND SECURITY
On September 20th President Bush announced the creation of the Homeland
Security Office, charged with gathering intelligence, coordinating
anti-terrorism efforts and taking precautions to prevent and respond to
terrorism. It is not yet known how this office will function, but it will
most likely try to centralize the powers of the intelligence and law
enforcement agencies -- a difficult, if not impossible, job -- among some 40
bickering agencies. Those concerned with its establishment are worried that
it will become a super spy agency and, as its very name implies, that the
military will play a role in domestic law enforcement.
FBI INVESTIGATIONS AND ARRESTS
The FBI has always done more than chase criminals; like the Central
Intelligence Agency it has long considered itself the protector of US
ideology. Those who have opposed government policies -- whether civil rights
workers, anti-Vietnam war protesters, opponents of the covert Reagan-era
wars or cultural dissidents -- have repeatedly been surveyed and had their
activities disrupted by the FBI.
In the immediate aftermath of the September 11 attack, Attorney General John
Ashcroft focused on non-citizens, whether permanent residents, students,
temporary workers or tourists. Normally, an alien can only be held for 48
hours prior to the filing of charges. Ashcroft's new regulation allowed
arrested aliens to be held without any charges for a "reasonable time,"
presumably months or longer. (See below for new legislation regarding
detention of immigrants.)
The FBI began massive detentions and investigations of individuals suspected
of terrorist connections, almost all of them non-citizens of Middle Eastern
descent; over 1,100 have been arrested. Many were held for days without
access to lawyers or knowledge of the charges against them; many are still
in detention. Few, if any, have been proven to have a connection with the
September 11 attacks and remain in jail despite having been cleared. In some
cases, people were arrested merely for being from a country like Pakistan
and having expired student visas. Stories of mistreatment of such detainees
are not uncommon.
Apparently, some of those arrested are not willing to talk to the FBI,
although they have been offered shorter jail sentences, jobs, money and new
identities. Astonishingly, the FBI and the Department of Justice are
discussing methods to force them to talk, which include "using drugs or
pressure tactics such as those employed by the Israeli interrogators." The
accurate term to describe these tactics is torture. Our government wants to
torture people to make them talk. There is resistance to this even from law
enforcement officials. One former FBI Chief of Counter-Terrorism, said in an
October New York Newsday article, "Torture goes against every grain in my
body. Chances are you are going to get the wrong person and risk damage or
killing them."
As torture is illegal in the United States and under international law, US
officials risk lawsuits by such practices. For this reason, they have
suggested having another country do their dirty work; they want to extradite
the suspects to allied countries where security services threaten family
members and use torture. It would be difficult to imagine a more ominous
signal of the repressive period we are facing. The FBI is also currently
investigating groups it claims are linked to terrorism -- among them
pacifist groups such as the US chapter of Women in Black, which holds vigils
to protest violence in Israel and the Palestinian Territories. The FBI has
threatened to force members of Women in Black to either talk about their
group or go to jail. As one of the group's members said, "If the FBI cannot
or will not distinguish between groups who collude in hatred and terrorism,
and peace activists who struggle in the full light of day against all forms
of terrorism we are in serious trouble."
Unfortunately, the FBI does not make that distinction. We are facing not
only the roundup of thousands on flimsy suspicions, but also an all-out
investigation of dissent in the United States.
THE NEW ANTI-TERRORIST LEGISLATION
Congress has passed and President Bush has signed sweeping new
anti-terrorist legislation, the USA Patriot Act (Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism), aimed at both aliens and citizens. The legislation met more
opposition than one might expect in these difficult times. A National
Coalition to Protect Political Freedom of over 120 groups ranging from the
right to the left opposed the worst aspects of the proposed new law. They
succeeded in making minor modifications, but the most troubling provisions
remain, and are described below:
Rights of Aliens
Prior to the legislation, anti-terrorist laws passed in the wake of the 1996
bombing of the federal building in Oklahoma had already given the government
wide powers to arrest, detain and deport aliens based upon secret evidence
-- evidence that neither the alien nor his attorney could view or refute.
The current proposed legislation makes it even worse for aliens.
First, the law would permit "mandatory detention" of aliens certified by the
attorney general as "suspected terrorists." These could include aliens
involved in barroom brawls or those who have provided only humanitarian
assistance to organizations disfavored by the United States. Once certified
in this way, an alien could be imprisoned indefinitely with no real
opportunity for court challenge. Until now, such "preventive detention" was
believed to be flatly unconstitutional.
Second, current law permits deportation of aliens who support terrorist
activity; the proposed law would make aliens deportable for almost any
association with a "terrorist organization." Although this change seems to
have a certain surface plausibility, it represents a dangerous erosion of
Americans' constitutionally protected rights of association. "Terrorist
organization" is a broad and open-ended term that could include liberation
groups such as the Irish Republican Army, the African National Congress, or
civic groups that have ever engaged in any violent activity, such as
Greenpeace. An alien who gives only medical or humanitarian aid to similar
groups, or simply supports their political message in a material way could
be jailed indefinitely.
More Powers to the FBI and CIA
A key element in the new law is the wide expansion of wiretapping. In the
United States wiretapping is permitted, but generally only when there is
probable cause to believe a crime has been committed and a judge signs a
special wiretapping order that contains limited time periods, the numbers of
the telephones wiretapped and the type of conversations that can be
overheard.
In 1978, an exception was made to these strict requirements, permitting
wiretapping to be carried out to gather intelligence information about
foreign governments and foreign terrorist organizations. A secret court, the
Foreign Intelligence Surveillance Court, was established that could approve
such wiretaps without requiring the government to show evidence of criminal
conduct. In doing so the constitutional protections necessary when
investigating crimes could be bypassed. The secret court is little more than
a rubber stamp for wiretapping requests by the spy agencies. It has
authorized over 13,000 wiretaps in its 22-year existence, approximately a
thousand last year, and has apparently never denied a request.
Under the new law, the same secret court will have the power to authorize
wiretaps and secret searches of homes in criminal cases -- not just to
gather foreign intelligence. The FBI will be able to wiretap individuals and
organizations without meeting the stringent requirements of the
Constitution. The law will authorize the secret court to permit roving
wiretaps of any phones, computers or cell phones that might possibly be used
by a suspect. Widespread reading of e-mail will be allowed, even before the
recipient opens it. Thousands of conversations will be listened to or read
that have nothing to do with the suspect or any crime.
The new legislation is filled with many other expansions of investigative
and prosecutorial power, including wider use of undercover agents to
infiltrate organizations, longer jail sentences and lifetime supervision for
some who have served their sentences, more crimes that can receive the death
penalty and longer statutes of limitations for prosecuting crimes. Another
provision of the new bill makes it a crime for a person to fail to notify
the FBI if he or she has "reasonable grounds to believe" that someone is
about to commit a terrorist offense. The language of this provision is so
vague that anyone, however innocent, with any connection to anyone suspected
of being a terrorist can be prosecuted. We will all need to become spies to
protect ourselves and the subjects of our spying, at least for now, will be
those from the Mid East.
The New Crime of Domestic Terrorism
The act creates a number of new crimes. One of the most threatening to
dissent and those who oppose government policies is the crime of "domestic
terrorism." It is loosely defined as acts that are dangerous to human life,
violate criminal law and "appear to be intended" to intimidate or coerce a
civilian population" or "influence the policy of a government by
intimidation of coercion." Under this definition, a protest demonstration
that blocked a street and prevented an ambulance from getting by could be
deemed domestic terrorism. Likewise, the demonstrations in Seattle against
the WTO could fit within the definition. This was an unnecessary addition to
the criminal code; there are already plenty of laws making such civil
disobedience criminal without labeling such time honored protest as
terrorist and imposing severe prison sentences.
Overall, the new legislation represents one of the most sweeping assaults on
liberties in the last 50 years. It is unlikely to make us more secure; it is
certain to make us less free.
It is common for governments to reach for draconian law enforcement
solutions in times of war or national crisis. It has happened often in the
United States and elsewhere. We should learn from historical example: times
of hysteria, of war, and of instability are not the times to rush to enact
new laws that curtail our freedoms and grant more authority to the
government and its intelligence and law enforcement agencies.
The US government has conceptualized the war against terrorism as a
permanent war, a war without boundaries. Terrorism is frightening to all of
us, but it's equally chilling to think that in the name of antiterrorism our
government is willing to suspend constitutional freedoms permanently as
well.
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