Moving Toward A Police State
or Have We Arrived?
Secret Military Tribunals, Mass Arrests and Disappearances,
Wiretapping & Torture
by: Michael Ratner
www.humanrightsnow.com
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 initiativesthe 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 suspect's 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 in secret and the trials can be 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 the equivalent
of a "justice" system akin to that the U.S. 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 U.S. to go to the U.N. and have the
U.N. establish a special court for the trials. Judges from different
legal systems including that of the U.S., 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 U.S. ideology. Those
who opposed government policies -- whether civil rights workers,
anti-Vietnam war protestors, 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, U.S. 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
U.S. 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 U.S. 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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