Forgotten Freedoms

by Salim Muwakkil

In these Times magazine, January 2002

Citizens of the United States, be advised that the federal government can now examine your medical, educational and financial history, all without your knowledge and without even presenting evidence of a crime.

Police now can obtain court orders to conduct so-called sneak-and-peak searches of your homes and offices and remove or alter your possessions without your knowledge. Internet service providers and telephone companies can be compelled to turn over your customer information, including the phone numbers you've called and Internet sites you've surfed-all, again, without a court order, if the FBI claims the records are relevant to a "terrorism investigation." A secret court can permit roving wiretaps of any telephone or computer you might possibly use; reading your email is allowed, even before you open it.

These are just some of the provisions of the USA PATRIOT Act of 2001-the bill's title is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism"-which President George W. Bush signed into law on October 26. In passing the legislation, Senate Majority leader Thomas Daschle said Congress was "able to find what I think is the appropriate balance between protecting civil liberties, privacy, and ensuring that law enforcement has the tools to do what it must."

The fears provoked by the kamikaze hijackings and the anthrax incidents that followed explain why many legislators have been less protective of civil liberties. Those progressive legislators who supported the legislation said the unique and deadly circumstances of the 9/11 attacks already had predisposed them to support strong action, and many noted that a sunset provision would allow the bill's most controversial surveillance sections to expire in 2005. But the Bill of Rights was designed to offer a judicial sanctuary from political passions. If progressive legislators don't make that clear, who will?

The events of 9/11 make it plain that the United States has enemies willing to die for their cause, and it would be impractical, even foolish, to deny the need for increased national vigilance. Ratcheting up our security is necessary, if only to enhance citizens' sense of well-being. And, according to a Newsweek poll reported in the publication's December 10 edition, "86 percent think the administration has not gone too far in restricting civil liberties in its response to terrorism."

The import of the USA PATRIOT Act was presaged by the Clinton administration's anti-terrorism bill of 1996, which broadened the government's investigative and prosecutorial powers. And even before that, the Foreign Intelligence Surveillance Act of 1978 allowed the wiretapping of noncitizens by approval of a secret court with secret evidence. But this new legislation ups the ante considerably. "This new legislation goes far beyond any powers conceivably necessary to fight terrorism in the United States," says Laura Murphy of the American Civil Liberties Union. "The long-term impact on basic freedoms in this legislation cannot be justified."

Leading the charge in the wake of 9/11 is Attorney General John Ashcroft, who, for starters, launched a nationwide dragnet that rounded up more than 1,000 foreign nationals and detained most of them on minor immigration charges. Many have since been released after officials found they had no connection to terrorism. As of December 6, 603 foreign nationals remain in custody. On Halloween, Ashcroft issued an order allowing federal authorities to monitor communications between federal prisoners and their lawyers without first obtaining a judicial warrant. He argued that this new power is necessary to prevent terrorist attacks planned under cover of lawyer-client privilege.

The administration's power grab is so audacious that it has prompted a new alliance between the civil-liberties left and the libertarian right. New York Times columnist William Safire characterized Bush's strategy as "a sudden seizure of power by the executive branch, bypassing all constitutional checks and balances." The ACLU, joined by 16 other civil rights and human rights groups, filed suit on December 5, charging the Justice Department with violating the Constitution and federal law through its detention policies.

Mining public fears for all the right-wing treasures he can get, Ashcroft also has proposed relaxing restrictions on the FBl's spying on religious and political organizations. The guidelines Ashcroft has targeted were imposed on the FBI in the '70s after the death of J. Edgar Hoover and revelations about the COINTELPRO program-which included disclosures of the agency's surveillance and harassment of Martin Luther King Jr. In Chicago, activists recently commemorated another poignant signpost of COINTELPRO infamy: the police assassination of Black Panther leaders Fred Hampton and Mark Clark on December 4, 1969. COINTELPRO ultimately was condemned as "little more than a sophisticated vigilante action" by the Congress and shut down.

But under Section 802 of the USA PATRIOT Act, a person commits the crime of "domestic terrorism" if he engages in activity "that involves acts dangerous to human life that violate the laws of the U.S. or any state and appear to be intended: to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination or kidnapping." This definition of terrorism could allow the feds to go after environmental, civil rights or anti-globalization groups, among others, for their dissenting views or direct-action protests.

Right-wing extremism is always fertilized by external threats. At its most notorious extreme, Adolph Hitler's Nazi Party rose like a rocket after the 1933 Reichstag fire convinced the German people that the Bolsheviks were out to get them. At the Nuremberg Trials, Hitler's second-in-command, Hermann Goering, aptly explained the process: "The people can always be brought to do the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger."

This eerily familiar formula is so effective that it has become enshrined in U.S. traditions, even if it violates strictures of the Constitution. During times of war, the chief executive has implemented many extra-constitutional edicts: Abraham Lincoln unilaterally suspended habeas corpus during the Civil War; the infamous, anti-Communist Palmer Raids of 1920 arrested thousands of people without warrants or due process; Franklin D. Roosevelt ordered the internment of more than 100,000 Japanese-Americans in squalid camps. In retrospect, these excessive actions invariably have been condemned as historical blemishes.

But today's policymakers seem oblivious to the lessons of history as they implement actions that echo-and amplify- those past excesses. Roosevelt also ordered a special military tribunal for eight accused Nazi spies, six of whom were later executed. The Supreme Court upheld Roosevelt's tribunal as it has most other questionable actions of wartime presidents. And the Bush administration has used the top court's 8-0 decision in 1942 as a precedent to bolster the president's own proposed military tribunals. Bush has assumed unchecked power as commander-in-chief to detain and try any noncitizen he suspects of committing terrorist acts or helping international terrorists. These suspects can be secretly arrested, tried, convicted and executed even if prosecutors failed to prove their case beyond a reasonable doubt.

Like the Bush administration's war, the future of our civil liberties is fuzzy and indeterminate. Since this is a war on the tactic of "terrorism" rather than on a tangible enemy, there is no entity to offer a formal surrender. The "war"-and the concomitant wartime powers and prerogatives-can be extended indefinitely; only the Bush administration has the power to declare the war's end.

Soon after 9/11, Bush said the people who perpetuated the terrorist murders hate America because of "our freedoms." After a few more executive orders and congressional capitulations, they won't have much left to hate.

Democracy in America

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