The Assault on Civil Liberties
by Candice Cohn
International Socialist Review, March / April
The generation that lived through Vietnam learned in its bones
that every imperialist war comes home. As villagers were brutally
slaughtered in Southeast Asia, Black Panthers were assassinated
in their beds in Chicago. Just as the American government attempted
to destroy a people's aspiration for self-determination halfway
around the globe, so Uncle Sam pulled out all the stops in surveillance,
infiltration, imprisonment, blackmail, and intimidation of movements
for social justice on its own turf.
In the 20th century, imperialist competition has led to American
conquest throughout the world. But that dynamic is not a one-way
street. As Martin Luther King Jr. said on April 4, 1967, in a
speech delivered at Riverside Church in New York City, of the
war of his generation: "The bombs in Vietnam explode at home."'
Military aggression abroad has always meant political repression
at home. This should not come as a surprise: The American capitalist
class and its government are not one class and one state at home,
and another, different state/class abroad. Because we live in
a bourgeois democracy, it is easy to develop illusions about the
American ruling class, the American government, and freedom and
democracy. Unlike activists throughout Central America, Asia,
Africa, and the Middle East, we are not used to living with the
searing, daily reality of secret and indefinite detentions, military
"justice," disappearances, and widespread torture by
America's allies and client regimes.
But illusions are rapidly shattered when the "freedom-loving"
state goes to war. Suddenly, the previous balance of civil liberties
and milder repression no longer best serves its needs. The government
wastes no time in "adjusting" that balance to suit its
new, wartime requirements-which include, among other things, a
quashing of dissent and the targeting of an immigrant population
as "the enemy."
Why must dissent be quashed? In the case of the current war,
so that Secretary of Defense Donald Rumsfeld and the generals
can have a free hand in bombing and murdering innocent civilians,
beating and torturing captured soldiers, and cutting deals with
local warlords and thugs. Official brutality on such a scale requires
that the U.S. population be ideologically convinced. At the very
least, the majority must be resigned to accepting the government's
For society's elite, popular dissent in these circumstances
is a serious liability. If the truth gets out about the war's
hidden motivations and goals, which invariably involve crass corporate
greed, then no one will support or die for it. As Eugene V. Debs,
the great antiwar socialist and mass leader who went to jail for
his opposition to the First World War, put it in his famous Canton,
The feudal barons of the Middle Ages, the economic predecessors
of the capitalists of our day, declared all wars. And their miserable
serfs fought all the battles. The poor, ignorant serfs had been
taught to revere their masters; to believe that when their masters
declared war upon one another, it was their patriotic duty to
fall upon one another and to cut one another's throats for the
profit and glory of the lords and barons who held them in contempt.
And that is war in a nutshell. The master class has always declared
the wars; the subject class has always fought the battles. The
master class has had all to gain and nothing to lose, while the
subject class has had nothing to gain and all to lose-especially
The population must be hoodwinked to go along. The government
fully exploits its recognition that the "statement of war
aims for propaganda purposes is very different from...one defining
the true national interest." Waging a massive disinformation
campaign, the warmongers suppress the dangerous truth-mass murder
for greedy motives-and substitute benign fictions.
The aggressors use two main strategies to accomplish their
huge propaganda scam. The first, which is beyond the scope of
this article, is media manipulation. The other, which involves
crushing dissent, forms the heart of our discussion here. In its
attack on civil rights, the ruling elite attempts to gut free
speech protections to which it was previously forced to yield.
Thus it becomes freer to criminalize those who expose its lies
and to conduct its imperialist war.
During the Vietnam era, the government became increasingly
unable to suppress the truth as opposition to its dirty war grew.
The real story leaked out, irrepressibly, over time-beginning
with driblets in the press, and ending in a flood. In time, the
torrent included televised nightly news dips of flaming children
and napalmed villages, and extensive exposes leaked from the Pentagon.
Americans watched, read, and learned-and poured their overwhelming
outrage into the antiwar movement, which spread throughout the
population and into the army. The domestic antiwar movement consciously
built international solidarity with the Vietnamese National Liberation
Front's struggle for self-determination, and vice versa. Together,
they brought U.S. imperialism to its knees. The American army,
facing internal mutiny, collapsed.
The government learned, as we did, from Vietnam. As Dean Rusk,
Vietnam-era secretary of state, pointed out, you can't win a war
that's televised. This time around, as in the 1991 Gulf War, the
U.S. power elite hopes to suppress the truth more effectively
than it did during the war in Vietnam. The principal aim of the
current war is to undo the "Vietnam syndrome" at its
root, by reestablishing the United States (this time, the sole
superpower) as Cop of the World-beginning in the Middle East and
Caspian Sea regions, with their oil. To undo the Vietnam syndrome
by reestablishing and legitimizing extensive, internal counterintelligence
and repression is the goal of the current domestic war, led by
the Department of Justice.
Today's war-as Vietnam, both World Wars, and every imperialist
war ever fought-once again teaches the inevitable: Military aggression
abroad means political repression at home.
Overview of the current attack
The master class of our own country, pretending to be waging
a war for democracy, have done everything in their power to destroy
Eugene V. Debs, to cheering crowds while temporarily out on
bail during prosecution for his Canton, Ohio, antiwar speech
Many a bum show has been saved by the flag.
George M. Cohan
Now that the Afghan war has been "victoriously"
concluded, it is difficult to remember the ferocity of last autumn's
attack on civil liberties. The legacy of that seemingly distant
assault, however, is a multitude of antidemocratic and anti-immigrant
measures-some in active use, some yet to be used.
The war, both domestic and foreign, continues. Though the
public perception may be that American military operations are
winding down, Pentagon officials make dear that this isn't true.
"It is going on today with every bit as much intensity as
it was last month, the month before, and indeed every day since
September 11," said Rumsfeld at the end of January. Plans
for the invasion of Iraq are now being publicly trumpeted.
On the home front, President George W. Bush seeks major new
funding-to the tune of $38 billion-ostensibly for "domestic
security." In reality, Tom Ridge, head of the newly established
Office of Homeland Security, quietly leads a vast modernization
of the government's ability to collect and use information that
it gathers on ordinary Americans. Bringing the government's domestic
and international "antiterrorist" technologies and databases
into the high-tech age is the short-term goal. The long-term goal
is a modern, massive, and highly invasive electronic policing
system in which government and corporate databases are merged;
information gathering is extensive and speedy; and the activities,
backgrounds, and beliefs of non-citizens and citizens are easily
The post-September 11 domestic campaign against democratic
rights unfolded with dizzying speed and staggering scope. A flood
of near-daily autumn edicts, fiats, executive orders, and "rule
changes" sought to gut constitutional protections of free
speech, of freedom from unreasonable search and seizure, and of
the right to a fair, speedy trial and a lawyer.
So great and so rapid were these onslaughts, that new federal
"antiterrorist" legislation-appalling in its expansion
of the state's police powers-was virtually lost in the avalanche.
That legislation, the USA PATRIOT Act (or, Uncle Sam Abuses Powers
by Aggressively Trashing Rights In Outrageous Travesty),7 was
passed by an overwhelming majority of liberals and conservatives-Democrats
and Republicans, alike-at the end of October.
The passage of USA PATRIOT was quickly eclipsed, as the country
was treated to an illuminating lesson in civil "democracy":
massive witch-hunts, secret detentions, "voluntary"
round-ups of thousands of (mainly Arab and Arab American) immigrants
and citizens; military tribunals; denial of attorney-client privilege;
widely disseminated proposals for legalized torture, retinal identification
cards, and internal passports; encouragement of Americans to spy
on neighbors and "watch what they say"; promises of
expedited citizenship for immigrants who act as stool pigeons;
harassment and discipline of students, professors, and media reporters
who speak out against the war; whipping up of racism, which has
led to many attacks and, in some cases, deaths; delays in visa
processing for tens of thousands of innocent immigrants who come
from "suspect" countries; the imposition of secrecy
on ordinary immigration hearings, to the extent that they may
not even be listed on the docket; the jailing of immigrants even
after immigration judges have ordered their release; the limiting
of immigration appeals; the withdrawal of presidential papers
and historical records from the public domain; and greater limitations
on what citizens can learn about government functioning under
the Freedom of Information Act.
Note that this litany does not include the numerous repressive
measures of the USA PATRIOT Act itself, which are even more sweeping
in their own right: secret searches of citizens and non-citizens
alike, without probable cause, without notification, and without
any relationship to "terrorist" investigations; expanded
detention, without hearing, of immigrants, potentially for life,
on vague assertions by the attorney general; expansive e-mail
and Internet snooping; expanded, secret government access to personal
and professional records, including medical records, bank records,
credit histories, drug tests, hair and DNA samples, etc.; tremendous
expansion and legalization of government powers to spy on and
protesters, dissenters, and organizations; criminal definitions
of "terrorism" having little to do with a common understanding
of the term-so broad as to include us all; guilt by association;
expanded government access to student records; and broader wiretapping
powers. The USA PATRIOT legislation inspired similar efforts elsewhere.
Canada, Britain, Mexico, China, India, Turkey, Tibet, Nepal, and
others have used the cover of the U.S. war on terrorism to crack
down on democracy. Several individual states within the U.S. have
also passed their own versions of "antiterrorist" legislation;
Illinois legislation provides a mandatory minimum penalty of 20
years, and a possible maximum of death.
In a bizarre Kafka-esque landscape, it has become possible
in the new millennium in the United States to be jailed without
charge; to be held secretly-and, potentially, indefinitely; to
never be informed of the evidence against you; to have your name
withheld; to be presumed guilty until proven innocent; and to
be denied a lawyer to mount a defense. The land of "freedom"
and "democracy" has established guilt by association,
guilt by suspicion, and guilt by belief. The scope of the attack
on civil rights has been so broad as to constitute apparent overkill;
in fact, it is commensurate with the military scale of unlimited
war that the elite of this country intends to wage.
Hijacking the Bill of Rights
The illegal we can do right now; the unconstitutional will
take a little longer.
The freedoms targeted by today's ruling "patriots"
are part of our historic revolutionary heritage. They are protected
by the first 10 amendments to the U.S. Constitution, which represent
gains of the American Revolution. These 10 amendments, known as
the Bill of Rights, are the fruit of revolutionary activity and
mass popular demand.
The democratic rights that the country's elite is now looting
are rights that the American people have enjoyed for more than
200 years. But for the forces of American reaction, even the gains
of the 1 8th century bourgeois revolution are too subversive.
In addition to constitutional due process guarantees of fairness,'°
currently targeted provisions include the First Amendment (freedom
of speech and religion); the Fourth Amendment (freedom from unwarranted
search and seizure) and the Sixth Amendment (right to a fair,
speedy trial and a defense lawyer).
We shall examine these rights and others in more detail below,
as they relate to each of several key administration initiatives:
mass detainment of immigrants, military tribunals, monitoring
of attorney-client conversations, criminalization of dissent as
"terrorist," and the USA PATRIOT Act.
Witch-hunts and detainees
Out of the sly and crafty eyes of many of them leap cupidity,
cruelty, insanity, and crime; from their lopsided faces, sloping
brows, and misshapen features may be recognized the unmistakable
Attorney General Mitchell A. Palmer, on immigrants arrested
in the 1918 Palmer Raids
We are a nation of immigrants. The Bill of Rights makes no
distinction between citizens and non-citizens. Its guarantees
extend to both. In addition to the Fourth Amendment freedom from
unreasonable search and seizure (detainment), immigrants are entitled
to many other protections under the Constitution and other laws
of the United States:
The Bill of Rights does not grant foreigners the right to
enter the United States, but once here, immigrants are entitled
to certain broad constitutional protections. Due Process-the right
to be treated fairly, whether in a deportation hearing or a criminal
court proceeding-applies to every person within U.S. borders.
And Equal Protection prohibits discrimination based on race or
national origin. An alien's rights to free speech and religious
freedom are protected under the First Amendment. The Refugee Act
of 1980 gives certain aliens the right to political asylum in
Despite constitutional dictates to the contrary, however,
immigrants have been a favored group for scapegoating throughout
our country's history. Non-citizens are the most vulnerable: least
protected legally, least supported socially, often least knowledgeable
about their rights and how to defend themselves.
Immigrants facing racist attacks deserve our support on grounds
of basic human rights and solidarity. But, in fact, everyone's
self-interest is at stake. Historically, the repressive state-like
the jungle predator, or the schoolyard bully-has always come for
the weakest first. Its initial assault constitutes a foot in the
door. The government traditionally enacts laws and practices against
the weak that it would like to apply to all of us. If these practices
are tolerated, they then become extended to other parts of population.
Last fall, the Justice Department began with the secret detention,
on no charges, of 1,200 mainly innocent Arabs and Arab Americans.
It refused to release their names and moved detainees around the
country to make it difficult for family and attorneys to find
and contact them. Federal agents have
kept the detainees incarcerated on minor, technical immigration
violations-which might be legal grounds for deportation, but not
for jail. Authorities have refused to release even detainees who
admit to the violation, agree to leave the country, and arrange
plane fare. Recently, the Justice Department quietly announced
that it would continue to hold detainees even after immigration
judges had ordered their release. As of this writing, about one-third
of the original 1,200 detainees remain in jail. This, despite
the fact that
[a]fter thousands of interviews, FBI agents have not found
a single accomplice to the hijacking attacks within the United
States, senior law-enforcement officials said last week. They
have yet to find even one instance in which Zacarias Moussaoui,
the only individual charged in connection with the terrorist acts,
made any contact with the 19 hijackers.
The Justice Department has moved on from the 1,200 detainees
to a national dragnet of 5,000 young men, aged 18 to 33, who legally
arrived here from Middle Eastern countries during the last two
years. From those 5,000, the government upped the ante to 300,000-the
number of immigrants it now seeks to identify and deport for overstaying
their visas in the last 10 years.
None of this legal slamming of immigrants has anything to
do with finding those responsible for September 11. The FBI itself
acknowledged that fewer than a dozen of the 1,200 people it jailed
had any suspected connection to terrorism and September 11 and
admitted that none of the 5,000 men it sought to interview had
broken any laws.
Last fall's passage of the USA PATRIOT Act sought to legitimize
and expand government detentions. Under that legislation, immigrants
and other non-citizens may now be detained for a week without
charges if Ashcroft "certifies" that the individual
is a "terrorist" or a threat to "national security."
If it later turns out that the detainee is not deportable for
terrorism, but is deportable for a technical violation (such as
overstaying a visa), consequences for the individual may be dire,
especially if the person is not accepted by his or her native
country. In that case, the individual can be jailed under USA
PATRIOT indefinitely and without a hearing. The act effectively
imposes life sentences on immigrants in these circumstances based
on the attorney general's vague and unsubstantiated allegations.
The New York Committee Against the War (NYCAW), in demanding
the immediate release of all detainees, has pointed out that immigration
violations are civil violations. No other civil offense in our
society is punished by incarceration. As protests by organizations
such as NYCAW grew last fall, and as comparisons mounted in the
press between detentions here and the infamous "disappearances"
under various Latin American regimes, the U.S. government simply
became more aggressive. Representative Saxby Chambliss of Georgia,
the chair of the House Subcommittee on Terrorism and Homeland
Security told 30 local Georgia officials in November that "every
Muslim that comes across the state line" should be arrested.
Meanwhile the assistant attorney general, Michael Chertoff, told
the Senate Judiciary Committee, "[L]et's be clear.... [T]hey've
overstayed their welcome.... They don't belong here."
The government continued to stoke racism even as "patriotic"
hate crimes multiplied against Arabs and Arab Americans and those
who were mistaken for Arabs or Muslims, including Sikhs. Federal
officials claimed to decry prejudice: "Muslims are not the
enemy"; "Arabs are our allies"; "We are not
profiling." Even as it mouthed its empty mantras, however,
the government continued to openly profile and persecute Arabs
on a massive scale. In so doing, it detained hundreds. Take the
following cases, for example.
A Pakistani student in Oklahoma reported a racist beating
to both the university and the local police. The university disciplined
the attackers, expelling one. However, the FBI investigated the
victim, for he had once been a neighbor of two other students
who were being detained. One of those students had once roomed
with suspected hijacker Moussaoui.
A woman in her forties from Uzbekistan was arrested because
she was riding in a car with three other people, one of whom had
a name similar to someone else the FBI desired to detain. She
was held for 40 days because she had overstayed and violated her
visa by working as a janitor at Wal-Mart.
One detainee's "terrorist" connections are so preposterous
to his neighbors and colleagues that the whole community has rallied
around him. Dr. Irshad Shaikh has been a major boon to the small
community of Chester, Pennsylvania, for several years as their
highly successful, effective, and generous commissioner of public
health. This did not stop the FBI from breaking down Shaikh's
door with guns drawn in a highly public and humiliating raid.
Men in moon suits removed his possessions for inspection. Since
then, the community of Chester has doubled Dr. Shaikh's pay in
an effort to keep him.''
Most detainees are not as prominent as Dr. Shaikh, and therefore
do not garner such broad public support. Most targets of the FBI's
raids are more like the Kazi family, which lives two blocks away
from Dr. Shaikh. Mr. Kazi is Chester's city accountant, and he
is Pakistani. Thirty armed FBI agents descended on his home and
held his wife at gunpoint, while a decontamination team conducted
a 10-hour search-based on a "tip" that a suspicious
liquid had been dumped outside. The dangerous biochemical turned
out to be soapy water from a clogged sink.
Perhaps it is obvious from these examples why the FBI's detention
of 1,200 people has netted so little evidence toward solving the
crimes of September 11. The agency's response to its own failure,
not surprisingly, has been to mount still larger fishing expeditions.
The Justice Department's program to round up 5,000 innocent
Arab young men for questioning is so abusive that several city
police departments have refused to go along. The targets are not
suspects, but they come from countries where other "evildoers"
might also have come. These men have been chosen on the basis
of the crudest stereotyping (age, gender, and country of origin).
Many of those sought are students, and federal investigators have
relied heavily on university cooperation. Within two months of
the September 11 attack, federal investigators had contacted administrators
on more than 200 college campuses to obtain information about
students from Middle Eastern countries.
The Universities of Wisconsin, Michigan, and Oregon refused
to cooperate in the roundup. (Michigan, with perhaps the largest
Arab population in the country, involved thousands of targeted
students.) Police chiefs in Detroit, Michigan, and Eugene, Oregon,
announced that their departments would not cooperate with blatant
profiling against those they had no reason to suspect. Police
departments in Austin, Texas; San Jose and San Francisco, California;
and Portland, Oregon, also refused to cooperate.
The federal government was forced to back off, at least from
its aggressive stance and style. The 5,000 "interviews"
would be "voluntary," it announced publicly. Unfortunately,
it also established (privately) that those who voluntarily cooperated
could be held without bail if investigators so desired.' Police
and FBI agents are now tracking down the hundreds who voluntarily
decided not to turn themselves in for questioning.
The interrogations and incarcerations ("detentions"),
based on the crudest anti-Arab stereotypes, form the racist domestic
offensive of the imperialist war in the Middle East. The war against
"terrorism" has resurrected domestic racial profiling.
The scandalous profiling of Black Americans-by police, real estate,
insurance, and other agents-had come under increasing attack in
recent years. Now, racist attacks on Arab detainees are being
used to legitimate profiling procedures that will increasingly
be used in the attack on Black Americans.
The oldest trick in the book of American rule is racism. Today's
version involves scapegoating Arabs, in an attempt to convince
the rest of the population that its interests are really the same
as those of the country's billionaire militarists. Arab Americans
(substituting, for the moment, for Black Americans) are the section
of the oppressed picked out for persecution, to convince the rest
of the oppressed that they and their oppressors are in this war
[N]on-citizens face an executive that is now investigator,
prosecutor, judge, jury and jailer or executioner.
William Safire, former Nixon speechwriter
The administration move that has engendered the broadest and
most vocal opposition was the establishment of military tribunals.
Bush issued his extraordinary executive order for special tribunals
on November 13, 2001. Vague and overreaching, based on questionable
precedent, developed unilaterally, and unjust enough to give even
courts-martial a bad name, the military tribunals quickly ignited
broad outrage. The tribunal order established "a crude and
unaccountable system that any dictator would admire," the
New York Times editorialized.
Military tribunals have been created rarely in our history-
mainly to hang spies behind enemy lines-and only during congressionally
declared war. They are supposed to be reserved for situations
in which there are inadequate civil alternatives clearly not the
case today. Bush's order, ostensibly aimed at trying al-Qaeda
terrorists responsible for September 11, actually covers all non-citizens
in the country. Twenty million non-citizens live in the United
States, most of them with green cards. Any one of these legal
residents "could be brought before a military tribunal, instead
of a regular court, if the president said he or she has 'aided
terrorism' or 'harbored' a terrorist." In addition to 20
million non-citizens, the military tribunal order could be extended
to all citizens as well, according to constitutional scholars.
The Sixth Amendment to the U.S. Constitution, which applies
to citizens and non-citizens alike, provides:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed
which district shall have been previously ascertained by law and
to be informed of the nature and cause of the accusation to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor; and to have the
assistance of counsel for his defense.
That civilians, as opposed to soldiers, would be tried before
military tribunals rather than the usual criminal courts, is especially
outrageous and without precedent.
As originally drafted, the tribunals would
* be held in secret;
* use secret evidence that would not be shown to the defense,
thereby eliminating the right to cross-examine;
* use rumor and hearsay as "evidence"
* allow evidence obtained by torture;
* have no juries (in order, the administration piously explained,
to "protect" the jurors from repercussions);
* have judges-and possibly defense counsel-who are not independent
of those bringing the charges;
* refuse defendants the right to choose their counsel;
* not require presumption of innocence or proof of guilt "beyond
a reasonable doubt";
* be immune from appeal; and
* have the power to take a defendant's life with even less
agreement than required in more "liberal" courts martial.
Other abuses in the military tribunal order are too numerous
to detail fully here. For example, the order "gives the president
and secretary of defense unbridled discretion to conduct all proceedings
in complete secrecy, and to reach whatever 'final decision' the
president deems proper, perhaps even convicting and sentencing
to death someone the tribunal has acquitted.
The tribunal order was entirely unnecessary. Numerous legal
avenues were and remain available to federal authorities to pursue
those who committed the September 11 atrocities. These avenues
have been used by the Justice Department before, to successfully
prosecute Timothy McVeigh for the 1996 Oklahoma City bombing and
al-Qaeda associates (and others) for both the 1993 bombing of
the World Trade Center and the 199c° bombings of the U.S.
Embassies in Africa. The government's claim that without military
tribunals, prosecutorial options are inadequate is disingenuous.
There is no expiration date for the order or the tribunals.
Like the limitless war Bush has proclaimed, no end is in sight.
Much of the outcry against tribunals from Democratic Party luminaries
involved objections to lack of consultation. Had they been consulted,
the Democrats insisted, the tribunals would have been so much
more effective! Much-vaunted congressional hearings under Patrick
Leahy, Democratic chair of the Senate Judiciary Committee, collapsed
in hot air. The only objection that the pathetically weak Leahy-led
opposition could mount was to Ashcroft's hypocritical protection
of gun rights.
Unwilling to alienate the National Rifle Association, the
rights-bashing Ashcroft refused to allow examination of records
tracking gun ownership by suspected terrorists. The constitutional
right to bear arms, the attorney general pointed out, is protected
under the Second Amendment. Somehow, other constitutional protections
(such as free speech and limited police searches) do not carry
the same legal weight for the man who pledged, hand over heart,
to enforce the laws of the land. Ashcroft's patent hypocrisy produced
a lot of noise from the Democrats-about an issue that mattered
for around 48 hours. In the meantime, the national opportunity
to officially expose and condemn the draconian tribunals had been
The torrent of opposition unleashed by the military tribunal
order, however, extended far beyond the Democratic Party; it included
civil rights organizations, right-wing columnists, the liberal
press, legal scholars, military officers, European allies, and
international human rights organizations. Military officers were
incensed when their courts-martial-no bastions of liberty-were
given a black eye through confusion with Bush's tribunals. Three
hundred U.S. Iaw professors from varying institutions and political
persuasions signed a letter opposing the military tribunals. Even
the relatively conservative American Bar Association "def[ied]
an administration request to keep quiet, [and] voted...to recommend
that defendants tried before military tribunals be guaranteed
traditional legal protections."
Spain, Germany, and other countries that the United States
lectures about secret trials and human rights, announced that
they would refuse to extradite to the United States terror suspects
they had arrested. Uncomfortable with the American government's
adoption of the "Peruvian option," they particularly
objected to harsh death penalty provisions.
When there is opposition, the government is unable to get
away with its entire right-wing agenda. So, in the face of this
opposition, the administration has declined to try suspected "terrorists"
Zacarias Moussaoui and John Walker Lindh in special military tribunals.
Their cases will instead be prosecuted in ordinary, civilian,
federal criminal courts. Furthermore, the Justice Department has
been forced to reform the original tribunal order. New regulations
are being drafted that reportedly soften harsh death penalty and
The administration is unwilling to say when the draft regulations
will be ready or what they will encompass. A key issue, for instance,
is whether meaningful appeals will be allowed. But the very fact
that the tribunal provisions are being redrafted in the face of
broad popular outrage indicates the power of a potential pro-democracy
[N]o privilege is more "indelibly ensconced "in
the American legal system than this privilege.
Robert E. Hirshon, president, American Bar Association
Among the reported wholesale violations of civil rights of
the detainees, denial of access to attorneys has been frequent.
Many of detainees who remain in custody were refused attorneys
until at least the end of January-months after they were jailed.
In several cases last fall where authorities did allow detainees
to speak with lawyers, the government monitored their conversations.
In a rule quietly published without the usual public discussion
period, the Justice Department seized authority to "monitor
communications between people in federal custody and their lawyers
if the attorney general deems it 'reasonably necessary in order
to deter future acts of violence or terrorism."
The Sixth Amendment to the Constitution expressly guarantees
the right to an attorney to aid in one's legal defense:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury...and
to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him...and to have the assistance
of counsel for his defense.
But legal representation as guaranteed under the Sixth Amendment
cannot exist without confidentiality between lawyer and client.
That confidentiality, known as attorney-client privilege, has
therefore been protected as virtually sacred since the days of
Shakespeare and Queen Elizabeth.
Such entrenched precedent barely gives pause to today's "patriots."
In their attempt to transport us to a pre-Bard era, however, they
risk igniting the broadest protest so far. Certainly Enron ought
to clue them in: Corporate lawyers and clients need rock-solid
guarantees of confidentiality more than anyone.
The First Amendment and "terrorizing" dissent
There are some very serious bad guys out there, and l am
not talking about Osama bin Laden. We are talking about pretty
sophisticated bad guys.
New York City's former deputy police chief, John Timoney,
referring to protesters at the 2002 World Economic Forum in New
Perhaps the most fundamental social freedom is the right to
dissent: to think and speak freely, without interference from
governmental powers. The language of the First Amendment to the
Constitution recognizes this universal democratic right and protects
it against government interference:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a redress
It is true that Congress and the courts have carved out many
exceptions to these premiere protections. It is also true that
"free" speech has always been a hypocritical concept
that is more available to some than to others in class society.
Nonetheless, the constitutional right to dissent remains crucial.
It was won in the American Revolution and belongs to the people.
The targets of the antidemocratic crusade have ostensibly
been genuine terrorists like those responsible for September 11.
Certainly, punishing the September 11 perpetrators is a goal of
current government policy. But "terrorist" is an umbrella
term that extends far beyond al-Qaeda. In fact, the main domestic
targets of the administration so far have been two sections of
the working class that are traditionally attacked: immigrants
and activists in movements for social justice. We have already
detailed the current attack on immigrants. Now, we shall examine
the attack on dissenters.
Most of us understand "terrorism" to have a particular
meaning, generally involving violent attacks on government officials
or innocent civilians in order to make a political point and calculated
to instill fear and shock in the general population. But when
representatives of the power elite use the word "terrorism"
nowadays, they often mean something quite different. "Terrorism"
has in fact has become a code word used by "superterrorists"
to demonize, marginalize, and criminalize domestic opposition.
Bush, Ashcroft, and the FBI have all explicitly declared their
determination to focus on critics of the status quo as part of
the "anti-terror" campaign.
Ashcroft revealed in early December that the war on terrorism
would involve extensive targeting of "domestic religious
and political groups." Even though the Afghan war was still
raging and Osama bin Laden remained at large, Ashcroft felt so
secure of success in the campaign against al-Qaeda that he announced
plans for a new national offensive. His plan would reverse 25
years of reforms barring domestic surveillance of political groups.
The reform guidelines were imposed upon a thoroughly discredited
FBI, following exposure of agency abuses in the mid- 1 970s that
shocked the country.
During the Vietnam era, revelations mushroomed regarding dozens
of scandalous intelligence programs, such as COINTELPRO (counterintelligence
program), run by the FBI, the CIA, and other government agencies.
Popular outrage prompted an exhaustive congressional investigation
into "the FBI's claims that domestic intelligence was necessary
to combat terrorism." Instead of substantiating the FBI's
claims of "communist and terrorist subversion" by political
groups within the population, the Senate committee headed by Democrat
Frank Church of Idaho (known as the "Church Committee")
found a pervasive web of criminal sabotage, lies, dirty tricks,
and sordid crimes committed 6y the government against innocent
Americans. The scale of abuse by the political police was massive.
Nearly all forms of criticism and dissent had been targeted, especially
the Black liberation and antiwar movements.
In the mid-1970s, the government's spying was reined in as
a result of mass popular demand and the Church Committee's investigations.
Official spying on the people certainly never stopped. But the
intelligence community was forced to operate within serious confines
(just as American military intervention did not end with Vietnam,
but has been significantly limited since). It is precisely these
reins that the Bush administration is trying to cut loose today.
The administration's current plan, if unchecked, would return
us to the dark days of ubiquitous, uncurbed government spying
and sabotage against the American people. The current administration,
in fact, would like to take us back even further. It is seeking
legal sanction for much conduct that the government was forced
previously to carry out illegally.
Goals and tactics remain the same. Only the labels have changed:
"Antiterrorist" has replaced "anticommunist"
as the justification for police spying and political repression.
Congress, the left, and other critics
I am willing to salute the flag as the flag salutes me.
Hubert Eaves, 11 years old, arrested in 1916 for refusing
to pledge allegiance to a flag that represented Jim Crow and Iynching
Only a month before Ashcroft publicly revealed the plan to
reverse 25 years of anti-spying reforms in December, in a high-profile
statement he equated his critics with traitors who aid the terrorist
cause. Hauled before the Senate committee that was investigating
antidemocratic administration policies Ashcroft declared:
[T]o those who scare peace-loving people with phantoms of
lost liberty, my message is this: Your tactics aid terrorists,
for they erode our national unity and diminish our resolve. They
give ammunition to America's enemies, and pause to America's friends.
Skeptical senators were not the only ones to be told by the
Bush administration that they threaten the nation's security.
Bush began the New Year by announcing that unions would henceforth
be banned from the Department of Justice. His grounds, National
The basis for identifying critics and opponents as terrorists
has long been in the making. Long before September 11, the FBI's
official attitude has been that "domestic terrorists"
include left-wing groups, according to its then-director, Louis
J. Freeh, in congressional testimony in May 2001. Describing the
agency's targets, Freeh testified:
The second category of domestic terrorists, left-wing groups,
generally profess a revolutionary socialist doctrine and view
themselves as protectors of the people against the "dehumanizing
effects" of capitalism and imperialism. They aim to bring
about change in the United States through revolution rather than
through the established political process.
The political police have been particularly concerned with
global justice activists since the protests against the World
Trade Organization (WTO) in Seattle in 1999. The FBI's concern
is evident both in Freeh's extensive testimony and in the agency's
The FBI has worked intensively recently with local police
to undermine, harass, and set up demonstrators in several cities.
In Washington and Philadelphia, outrageously false reports have
been leaked to the press regarding the discovery of "dangerous
weapons" (such as vegetables) among protesters. Other reported
FBI/police abuses of global justice protesters include trumped-up
charges and excessive bail, raids under false pretenses, profiling
activists and leaders for harassment prolonged detention, and
brutal treatment in custody.
Peaceful protesters against the World Economic Forum (WEF)
in New York City in February faced violent, unprovoked police
attack without warning, according to photographic and testimonial
evidence. A February 5 news release by the People's Law Collective
reveals that demonstrators against WEF were arrested by the dozens
(200, in all) and subjected to "glaringly illegal" treatment
But the FBI does not stop at harassing global justice protesters.
The agency expressly extends its "antiterrorist" net
to Puerto Rican independence activists, environmentalists, anarchists,
socialists, Women in Black (a vigil-oriented women's peace group),
Reclaim the Streets (a kind of semi-rave, semi-street party),
and many others.
If the testimonies of Freeh and Ashcroft leave any doubt,
the president himself has made it clear that the government will
function as thought police. From now on, voicing a "terrorist"
creed, not just committing a "terrorist" act will suffice
to provoke Bush's vengeance, the president assured a Portland
crowd at the beginning of the New Year. Anyone "who espouses
a philosophy that's terrorist and bent, I assure you we will bring
that person to justice."
"Terrorist and bent" apparently includes "critical
of government policy." Since September 11, the FBI has stepped
up "terrorist investigations" of people who express
criticism of the government. The agency is committed to following
up every "tip" it receives-no matter how disreputable,
malevolent, or crackpot.
Last October, a 60-year-old retired phone company worker received
a visit from the FBI for expressing his opinion while working
out at the local gym. During a social discussion, Barry Reingold
stated that "Bush has nothing to be proud o£ He is
a servant of the big oil companies, and his only interest in the
Middle East is oil." A fellow weight lifter found these comments
to be "disloyal." He called in the tip, and the FBI
investigated Reingold as a potential terrorist. (In cases like
Reingold's, even if the tip is "discarded," the FBI
still opens and maintains a file on the "suspect.")
In another case of "combating terrorism" last fall,
a community college student in North Carolina
faced 40 minutes of grilling by two Secret Service agents
and a Raleigh police officer in her doorway (she wouldn't let
them come in, and they had no search warrant). By her account
they said they were investigating a tip that she had "un-American
material" in her apartment. From the doorway, they took particular
note of a poster of George W. Bush holding a noose. It read: "We
hang on your every word," referring to his unflinching support
of the death penalty as governor of Texas.
A small Houston art gallery was investigated for "anti-American
activity" by FBI agents when it opened an exhibit on U.S.
covert operations called "Secret Wars."
These examples of the FBI's commitment to investigating every
person reported for disagreeing with the government join instances
cited above of government harassment of protesters. Coupled with
official policy statements against dissenters, a clear pattern
emerges. From gallery owners to unionists to global justice demonstrators
to Greenpeace members, those who dare to criticize the status
quo are, in the eyes of the administration, traitors and "terrorists"-
or, at best, the aiders and abettors of "terrorism"-who
must be stopped.
Threats to academic freedom
[I]t seems now that the place where you see the most obvious
censorship is on college campuses-the precise place where you
would expect to see the last.
Harry A. Silvergate, coauthor of The Shadow University
Last November, the American Council of Trustees and Alumni
(ACTA), a nongovernmental organization, created and published
an attempted blacklist of 40 "unpatriotic" academics-students,
professors, and heads of universities-from around the country.
Lynne Cheney, wife of Vice President Dick Cheney, and Democratic
Senator Joseph Lieberman, are two of ACTA's founders and sit on
The report's release evoked McCarthyist echoes, and the immediate
outcry forced ACTA to back down. It replaced its original report
with a sanitized version that omitted names (but added descriptions
and retained quotations). Douglas Bennet, for example, is no longer
referred to by name, but more "anonymously" as the president
of Wesleyan College.
What Bennet, who avidly supports the Bush administration's
response to September 11, is identified for is rather startling:
the idea that Americans should try to be understanding toward
other cultures' sensitivities. Hardly a call to revolution. But
a faction of this country's ruling class is signaling that it
will require absolute loyalty, with not a sliver of daylight between
itself and its supporters. To veer even a millimeter from the
official line invites taint: "disloyal," "unpatriotic,"
"soft on terrorism." And so all dissent is chilled.
And so, too, of course, are ACTA and the country's rulers
freer to go after their main target: those who oppose the war.
Protesters at a Harvard rally in September made it onto ACTA's
list by chanting, "What do we want? Peace! When do we want
it? Now!" Seventy-six professors at the University of California
at Berkeley (UC-Berkeley) and 100 other academics were cited for
taking out an advertisement in the New York Times calling the
war unacceptable. A sign at the University of Maryland proclaiming
"Hate breeds hate" was subversive enough to be included
on their list.
ACTA also condemned the UC-Berkeley student senate for demanding
a front-page apology after student editors at the UC-Berkeley
Daily Californian published an anti-Arab cartoon. ACTA specifically
cited a student senate member for saying,
It's not about being offended. It's about the implications
of [running] an inflammatory cartoon at a time when there had
already been more than l,000 hate crimes against the community
depicted. Racism is nor an American right.
The ACTA attack is emblematic of a broader, post-September
11 trend in academia. That trend has included firings, discipline,
harassment, public denunciation by superiors, and physical threats
against teachers and students who speak out against the war.
In response, students, professors, and media supporters have
been involved in free speech skirmishes across the country. More
than 3,000 academics and supporters have signed onto and circulated
an academic freedom petition "protesting the campaign of
intimidation carried out by pro-war media and college administrators."
The USA PATRIOT Act
[Patriotism] ...is a word which always commemorates a robbery.
The campaign against dissent has many facets. In addition
to those we've examined above-academic, public policy, and political
police-there is the legislative side. If government officials
have announced their intentions to go after dissidents, unionists,
the left, and immigrants under the cynical guise of fighting "terror,"
then the USA PATRIOT Act provides the legal means to do so. In
that recent larcenous legislation, the U.S. government, like a
swift thief in the night, stole the people's First and Fourth
USA PATRIOT seeks to criminalize constitutionally protected
dissent as "terrorist" in the following ways:
Protests, pickets, marches, rallies, and demonstrations qualify
as "terrorist" under the act's definition if the government
determines that activity "dangerous to human life" is
involved-which could conceivably cover acts of minor vandalism,
resisting arrest, or violent provocations by police agents; and
if they "appear to be intended...to influence the policy
of a government by intimidation." [italics added]
This provision could be used to criminalize protests against
the International Monetary Fund, the World Bank, or imperialist
war, among others. Note that under USA PATRIOT's language, conduct
need only to appear to be intended to influence by intimidation-it
need not actually 6e intended to influence by intimidation-in
order to qualify as "terrorist."
The secretary of state is authorized under USA PATRIOT to designate
any group that has ever engaged in "violent" activity
as a "terrorist organization," according to the American
Civil Liberties Union. Such a sweeping definition could include
many groups that engage in direct action-for example, Greenpeace
or People for the Ethical Treatment of Animals. There are no safeguards
or procedures to appeal arbitrary decisions.
The USA PATRIOT Act punishes not only the dissenter as terrorist,
but also anyone who assists or "harbors" that person.
Providing even the most minor assistance to anyone designated
a "terrorist" is criminalized. The act is drafted so
broadly as to make ordinary, innocent conduct, such as allowing
friends to sleep on your floor when they come to demonstrate against
the WTO-even if you stay home while they're at the protest-a serious
Guilt by association:
Beginning (for now) with non-citizens, the government has resurrected
and extended the McCarthyite concept of guilt by association.
Under USA PATRIOT, non-citizens, including lawful permanent residents,
may be barred from entering or reentering the country-or, if they're
in the U.S., detained or deported-for belonging to or lawfully
assisting groups deemed "terrorist" by the government.
The government doesn't have to notify non-citizens which groups
to avoid, and their assistance doesn't need to be related to the
group's alleged terrorist activity. Groups that are not designated
as terrorist can be included-if an individual "should have
known" that his or her assistance would further loosely defined
"terrorist" activity. (The government does not have
to prove this "should have known" charge; the oppressive
burden is on the individual to prove the difficult negative that
he or she "should not have known.") Paying dues or otherwise
financially supporting a proscribed organization is a deportable
These provisions could ensnare, for example, many individuals
who generously made innocent contributions to Muslim charities
in this country that the government has now deemed connected with
terrorism. The U.S. government has been steadily increasing its
list of organizations that it considers terrorist, including Hamas
Extending government spying and sabotage: The USA PATRIOT
Act explicitly puts the CIA back in the business of spying on
Americans, granting it access, without court order, to "a
vast array of information gathering on U.S. citizens." The
new authority violates both statutory prohibitions in the CIA's
charter and limitations that were placed on it after the notorious
abuses of the 1 960s and 1 970s.
First Amendment rights are not the only civil rights assailed
by the USA PATRIOT Act. It centers in its crosshairs historic
Fourth Amendment protections against police abuse. The Fourth
Amendment to the Constitution protects the people from arbitrary
invasion and detainment by the government. It forbids the government
from coming into your home, taking evidence, or arresting you
just because it doesn't like your color or nationality, your political
or religious beliefs, your moral or sexual persuasion. Before
it can search or seize you or your belongings, the government
must first obtain a warrant from a court. To get that warrant,
it must demonstrate probable cause "that a crime has been,
is being, or is about to be, committed." The government can't
come in or detain you or seize your property just because it wants
to-at least, not according to the language of the Fourth Amendment:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
Probable cause: The Fourth Amendment's requirement of probable
cause is a historic cornerstone of the American legal system.
USA PATRIOT dispenses with this sacrosanct requirement by simply
stating that much less will henceforth suffice.
Under the USA PATRIOT Act, when law enforcement agents seek
search warrants in the future, they won't need to prove to a judge
that they have probable cause to believe that a crime has been,
is being, or is about to be committed. Now, instead, the agents
will get their warrants if they simply establish "relevance"
to "national security." Relevance is a much lower standard
to meet than is probable cause. A viable legal argument can almost
always be made as to the relevance of anything.
Notice: "Probable cause" is not the only core protection
of the Fourth Amendment that USA PATRIOT attempts to gut. The
act also tramples "notice," a critical requirement inherent
in Fourth Amendment protections as interpreted by the courts.
"Notice" means "notification." Under traditional
legal standards, you have to be notified that your house is about
to be searched; the police can't do it in secret when you are
not home. The reason that notice of a search has been considered
a key Fourth Amendment protection is that without notice, you
cannot possibly assert your rights.
Without notice, for example, you could not object if police
came to the wrong address, or if they searched through your dresser
drawers when their warrant was limited to a search for a stolen
car. The ability to object is important not only at the time of
the search, but also in potential subsequent criminal prosecutions,
when police may try to introduce into court evidence seized improperly
during the search.
To dispense with notice under USA PATRIOT, all law enforcement
has to do is show that giving notice of a search would jeopardize
an investigation-an extremely low standard. If it shows this,
then police or FBI agents may secretly enter your home while you're
not there, search your belongings, download your hard drive, photograph
and/or take your belongings, and simply never tell you they were
The Bush administration, so eager to expose our private lives
and homes to its unrelenting eyes, turns out to be very big on
secrecy for itself, refusing to make public a number of documents
and communications, and even forcing the General Accounting Office
to sue Cheney to make him hand over information regarding the
meetings of his energy policy task force.
Finally, the way in which the administration drafted the sneak-and-peek
search provisions provides powerful evidence that the official
"antiterrorist" public relations propaganda is cynical
baloney. The "antiterrorist" search powers in USA PATRIOT
are not limited to "antiterrorist" prosecutions; they
apply across the board, to the entire criminal field.
Wiretaps and cyberspace surveillance: Traditionally, wiretaps
for content have been considered Fourth Amendment searches requiring
probable cause. But under USA PATRIOT, authorities are no longer
required to show "probable cause" to obtain wiretaps
for investigating a "crime." The new law also legalizes
controversial, "roving" wiretaps-in which the government
can bug any phone that a suspect uses without getting a new warrant
each time. Under this provision, your conversations might be bugged,
for example, because you use the same pay phone a suspected "terrorist"
Cyberspace snooping is comparable to telephonic eavesdropping,
but represents a whole new vista of emerging legal developments.
The repercussions of the USA PATRIOT legislation for cyberspace
privacy are hugely significant. Space limitations unfortunately
allow only the following brief discussion here.
The new standards for cyberspace searches under the USA PATRIOT
Act are low. Rather than the traditional Fourth Amendment requirement
of evidence of "probable cause," the state has only
to assert "relevance to an[y] ongoing criminal investigation,"
a test that is almost impossible to fail. If law enforcement meets
this (non)standard, then USA PATRIOT removes traditional discretion
from the judge, who must issue the search order-even if the judge
believes that law enforcement is carrying out a bogus fishing
expedition or vendetta.
With the order obtained on less-than-probable cause, law enforcement
agents are not supposed to view content, but "only"
e-mail addresses and Web sites visited. Unfortunately, current
technology does not allow addresses to be viewed separately from
content; that information moves together on the Internet in electronic
"packets." The FBI insists that it can be trusted to
receive all of the information-content included- then cover its
eyes at the right places. (If you've kept a straight face, incidentally,
they have some Enron stock to sell you.)
Even if you are not a target of a government investigation,
your e-mail and Internet activity may be monitored under USA PATRIOT,
despite Fourth Amendment safeguards, in either of two cases. You
may be snooped through the FBI's "Carnivore" Internet
surveillance system. Carnivore gives the government access to
electronic communications of nonsuspects if they happen to share
an Internet service provider (ISP) with a targeted suspect. You
may also qualify for snooping as a trespasser. A "trespasser"
is defined as someone who doesn't have authorized access to a
machine or network-and therefore is fair game for surveillance.
You can be a "trespasser" if you were late, for example,
in your payments to an ISP, or if you shopped online at work against
Records and bodily evidence: Obtaining medical records, financial
records, fingerprints, and the like, which also qualify as searches
under the Fourth Amendment, have suffered the same fate as private
phone conversations and personal Internet activity. If the government
meets its new standard for getting a warrant ("relevance"
instead of "probable cause"), institutions must supply
the government with a given individual's financial books; medical,
mental health, employment, or drug-testing records; hair samples;
fingerprints; and so forth. Under the USA PATRIOT Act's secrecy
requirements, institutions are explicitly barred from telling
you that they turned over your information.
Student privacy: The government has focused heavily on obtaining
the confidential information of Arab and Muslim students. The
USA PATRIOT Act facilitated those efforts by sanctioning police
and FBI access to student records, previously private, from colleges
and universities. The act also provided greater access to information
under the National Education Statistics Act, which collects vast
amounts of identifiable data for statistical research purposes.
Until now, such information has been strictly confidential without
To summarize, important Fourth Amendment rights were looted
under USA PATRIOT in the name of "fighting terror."
But this is only one aspect of that legislative heist. Similar
to the house that Jack built, the USA PATRIOT Act itself was but
one part of the administration's overall attack. From detainees
to military tribunals, from "terrorizing" dissent to
denying attorney-client privilege, the scope of the attack on
civil liberties has been breathtaking. Those currently in power
are attempting to undo democratic rights that the American people
have enjoyed for 225 years as a result of the popular gains of
the American Revolution.
Unconstitutionality and the courts
Several questions logically arise from a close examination
of the USA PATRIOT Act: Isn't all of this stuff unconstitutional?
Won't these provisions get overturned in the courts? What about
the Supreme Court?
The answer is that this stuff is indeed unconstitutional.
But that fact is irrelevant to the legally enforceable determination
of constitutionality, which is pretty much whatever the Supreme
Court says it is.
The current, highly conservative Court has been undermining
constitutional rights (in particular, the Fourth Amendment) for
years. It is unlikely that the Court would suddenly change its
spots over USA PATRIOT. This is especially true since an anti-USA
PATRIOT decision would mean opposing the alleged national legislative
embodiment of the "popular will." Constitutional expert
Laurence Tribe explains:
[I]t would be a terrible mistake for those who worry about
civil rights and liberties to pin too much hope on the judiciary
in times of crisis. Even assuming general agreement in hindsight
that a government practice violated the Constitution, the likelihood
that the Supreme Court would say so in the face of strong opposition
by Congress, the president, and a public caught in the fog of
war is very low indeed. And the odds that judges will second-guess
a determination by the nation's commander in chief that a given
measure is truly demanded by military necessity are particularly
Legal challenges to USA PATRIOT should of course be supported.
But they cannot form the basis of an effective strategy. By their
nature, court challenges must be piecemeal and prolonged. They
will require many years to sort out, and even then, success is
dubious, especially without a change in the overall political
If the Bill of Rights is to be upheld, the people must do
it, through mass action.
Forced retreat of McCarthyism and 1960s repression
You can cage the singer but not the song.
If the sweep of today's attack on civil rights leaves the
reader demoralized, it should be remembered that both McCarthyism
and the pervasive repression of the 1960s were eventually beaten
back. In both cases, the attacks were far worse than those we
are witnessing today. In both cases, they were rolled back by
mass popular and working-class struggle- in particular, the civil
Fear, which had been entrenched, ceased to exist. The nation
watched the South, as courage multiplied and thousands stood up
to fire hoses and attack dogs. "Southern justice"-daily,
officially sanctioned beatings, murders, Iynchings, fire bombings,
cross burnings, firings, and persecution-could not reduce the
magnificent courage of Southern Blacks, who simply could bear
Their courage was infectious; the nation was transformed.
Eventually, even the McCarthyite attack on the right to dissent
was reversed. McCarthyism did not end, as many assume, with McCarthy's
individual demise, following his unsuccessful attacks on Republicans
and the army. "McCarthyism" had begun long before McCarthy,
and it survived the death of his political career. The House UnAmerican
Activities Committee (HUAC) continued its traveling road show
long after it lost its most infamous showman.
But when HUAC met in 1960 in San Francisco, hundreds of students
(and others) protested. The demonstrators were clubbed and washed
down the marble steps of city hall, "drenched in water and
blood" by police fire hoses. Sixty-eight were arrested. The
students had been inspired by the magnificent example of their
Black brothers and sisters in the South. So were the 5,000 demonstrators
who turned out to support the protesters the next day, mockingly
chanting "Seig Heil! Seig Heil!"
The San Francisco protests, in turn, inspired anti-HUAC demonstrations
on other campuses, which quickly spread. The power of HUAC and
McCarthyism were forever broken, and people were, simply, no longer
Having lost its official power, McCarthyism effectively went
underground and became a pervasive, covert governmental campaign
to sabotage the social justice movements of the 1960s. COINTELPRO
was one of dozens of such spying and disruption programs run by
the FBI, the CIA, the National Security Agency, and many other
official federal and state agencies, often in close cooperation
with right-wing groups and paramilitary organizations.
But that ubiquitous repression was eventually rolled back
by the same popular power that had eviscerated HUAC-a united,
massive and mobilized social movement from below, inspired by
the heroic leadership of Blacks in the South.
Meanwhile, American imperialism faced another defeat- its
Colossus crumbles: The legacy of Vietnam
A champion named Goliath...came out from the Philistine camp....
David put his hand into the hag and took out a stone, hurled it
with the sling.... Then David ran and stood over him with the
Philistines own sword (which he drew from its sheath) he dispatched
him and cut off his head.
1 Samuel, 17:4, 49, 51
Now we have a problem in making our power credible, and Vietnam
is the place.
John E Kennedy, 1961
This article begins and ends with Vietnam. We started with
the premise that imperialist military aggression abroad means
increased political domestic repression at home. Undoing the "Vietnam
syndrome"-by reestablishing the United States as Cop of the
World internationally, and by reestablishing extensive counterintelligence
and repression internally-is the goal of the current war on terrorism.
Undoing the domestic and international shackles of the Vietnam
syndrome is of crucial importance to U.S. ruling interests-and
has been ever since they overcame the shock of their defeat in
Southeast Asia three decades ago. But Vietnam has lessons for
us as well, and they are of earthshaking proportions.
The overriding lesson of Vietnam is that the American ruling
class is not invincible. A tiny, underdeveloped, poor, peasant
country beat the greatest military power in the world. U.S. imperialism
can be, and has been, defeated-precisely by mass popular resistance
movements in solidarity with one other.
So while the attack on democracy has been so sweeping that
it is easy to become demoralized, it is crucial to remember that
many of the repressive measures outlined above represent plans
for what American capitalism would like to do, and not necessarily
what it is actually capable of accomplishing. Appropriating legal
authority in a written document is not the same as enjoying actual
authority-i.e., power-to carry out its provisions.
The extent to which the American ruling class proves able
to execute its domestic war on democracy will depend, ultimately,
on the balance of social forces, that is, in struggle. There will
be a fight back-pockets of opposition have already surfaced, even
within the culture of fevered patriotism. Striking public employees
in Minnesota defiantly repelled a barrage of vilification that
portrayed them as unpatriotic. Striking teachers in New Jersey
stuck to their guns, figuratively speaking, even as they were
carted off in handcuffs and accused of indifference to September
11. Three thousand people have signed the academic freedom petition.
Popular and international outrage has forced the Bush administration
to back off somewhat on several repressive measures: mass "interview"
roundups of young Arabs, military tribunals, and withholding Geneva
convention protections from prisoners captured in the Afghan war.
It seems fair to predict further growth in opposition-especially
as the system's Enronian core gains exposure.
The movement that develops in opposition to today's attack
on civil liberties will be integral to the antiwar movement. Vietnam
taught us that the movement for civil rights and the movement
against the war, the movement against imperialism and the resistance
to domestic repression all develop in sync. Each feeds the other.
Deep popular cynicism about the American ruling class and
the U.S. government remains the legacy of Vietnam and Watergate.
Despite patriotic pro-war amnesia, that popular cynicism explodes
anew when inevitable, fresh scandals like Enron unfold. The huge
repercussions of the collapse of Enron, when combined with the
voracious transfer of wealth to the richest few in the last three
decades, the destruction of the social safety net, and massive
layoffs, create domestic conditions that are potentially more
explosive than they were in the sixties.
As the new era of increased U.S. imperialist aggression unfolds,
in the form of" unlimited" war, we must expect increasingly
repressive, domestic, antidemocratic attacks on workers, immigrants,
Blacks, dissenters, and the left. We need to be prepared and effectively
organized to resist. We must walk a fine line between realistically
assessing the full scale of the attacks and, at the same time,
neither becoming demoralized nor paranoid.
As we build a movement against its attacks, the American ruling
class will face opposition from other quarters as well. People
throughout the world will not allow their lives and freedoms to
be sacrificed and subordinated in order to further enrich America's
rulers. The history of modern imperialism is also the history
of popular resistance to it. New imperialist aggressions will
eventually be met by new anti-imperialist struggles.
As we build links between those struggles and our own, we
must remember the great historic legacy of Vietnam: U.S. imperialism
is not invincible. It can be-and has been-beaten.
Candace Cohn was active in the civil rights movement against
the war in Vietnam, and a leader in the rank-and-file movement
of the United Steel Workers of America. She is a former lawyer
trained in civil rights law, particularly in the areas of employment
discrimination and police brutality.