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The War on Civil Liberties
How Bush and Ashcroft have Dismantled the Bill of Rights
By Elaine Cassel
Chicago Review Press IncorporatedCopyright © 2004 Elaine Cassel
All rights reserved.
TERRORISM, PATRIOTISM, and HOMELAND SECURITY
The Legal Foundation for the War at Home
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Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated.
— President George W. Bush, September 20, 2001
When President George W. Bush declared a war on "terror," no one, not even Bush himself, could have envisioned how this war would be carried out. Soon it became clear that there would be a war in Afghanistan that would lead to the deaths not only of America's enemies, but also of Afghani civilians as well as military and civilian personnel from the United States and its allies. But President Bush also put Americans on notice that it would take more than military might to wage this war. The campaign would require a new arsenal of laws and regulations at home. The president got just that. A month after Bush's declaration of war, Attorney General John Ashcroft led a virtually unquestioning Congress to enact laws that would change the concept of what it means to be "free" in America that dated back over 200 years. If the September 11 hijackers hated us for our freedoms, as Bush said, today there is far less to hate.
The legal firepower behind the war on terror consists of three pieces of legislation — the Antiterrorism and Effective Death Penalty Act of 1996, the USA Patriot (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act of 2001, and the Homeland Security Act of 2002 — as well as a host of executive orders and federal agency regulations. Ashcroft, Bush, and numerous federal courts have decreed that freedoms must be curtailed in the name of fighting terrorism. But that formulation suggests that this curtailment will be temporary. Given the nature of terrorism — and of politics — that is extremely unlikely. Bush, after all, has said repeatedly that this is to be a war of many years' duration, a life's work. It will not end until every threat the United States identifies as terrorist is vanquished. It is a global war without territorial boundaries and without a known cast of enemies, save one: "evil." And it's being fought at home, in churches and town squares, in courtrooms and libraries.
At the center of this new body of antiterrorism and homeland security laws lies a vague and amorphous definition of its central term: "terrorism." What is "terrorism"? As revealed throughout this book, there are as many definitions as there are laws and regulations using the term. The Patriot Act defines terrorism as "acts dangerous to human life that are a violation of criminal law" that "appear to be intended to influence the policy of a government by intimidation or coercion." This definition is so broad that practically any act of civil disobedience could be construed to be "terrorism." (A political demonstration taking place in the path of an ambulance, for example, could be termed "dangerous to human life.") Under the Patriot Act, any organization that engages in legitimate as well as illegitimate activities can be presumed a terrorist organization for all purposes (see chapter 4). And the prohibited activity that lands a group on the government's list need not consist of violent acts directed at people; anything that is intended to destabilize a government or "influence" its policy by coercion can be termed terrorism. Flooding a congressional office with e–mails critical of government policies and jamming a server in the process — is that an act of terror? Some organizations that use the Internet to ask people to e–mail members of Congress fear that it might be so construed.
As well they should. For the war on terror now encompasses a breathtaking range of new government powers here at home. More than ever before, merely dissenting could make you a target in the Bush administration's war on terror. Indeed, protestors against the war in Iraq and against U.S. trade and monetary policies abroad have discovered that the First Amendment's protections of freedom of speech and assembly can be curtailed at the whim of the executive branch of the government — all in the name of fighting terrorism.
The Bill of Rights
What we think of as civil liberties, a term first coined in the mid–seventeenth century, refers to individual rights free from the powers of the government. In the strictest sense, civil liberties are liberties inherent in our bodies, our homes, our minds, our churches, our travel, and our associations. These most elemental of freedoms, along with rights of the people in the face of government power, were granted to Americans in the Bill of Rights. Ironically, these most cherished of American values were not a part of the original Constitution. The Bill of Rights came about primarily through the efforts of George Mason, Virginia's delegate to the Constitutional Convention of 1787. Having crafted a Bill of Rights for the Virginia Constitution, Mason was distressed that the framers of the federal Constitution made no such provision. The Articles of Confederation, he pointed out, were all about federal power, leaving open the opportunity for centralized tyranny — a prospect familiar to the former subjects of King George III.
After Mason left the convention in protest over its failure to adopt provisions that protect individual liberties, the first Congress of the United States adopted twelve amendments to the Constitution on September 25, 1789, and proposed them to the states for ratification. The Constitution required then, as it does now, that the proposed amendments be ratified by three–quarters of the states. Two of the proposed amendments that addressed the number of congressional representatives and their compensation were not ratified. But the other ten were, and on December 15, 1791, they became the first ten amendments to the Constitution — what we know today as the Bill of Rights.
In the name of fighting a war on "terror," the Bush administration, with the help of Congress and the courts, has trampled on the Bill of Rights, particularly the First, Fourth, Fifth, Sixth, and Eighth Amendments, and curtailed many of the freedoms it granted. We will examine far too many instances in subsequent chapters. For example:
* The First Amendment protects our right to freely exercise our religion, to freely speak and publish, to peacefully assemble, and to petition our government for a redress of grievances. Of course, none of these rights, nor any other rights given in the Bill of Rights, are without exception. Hundreds of laws and thousands of federal court decisions have shaped them. But under Bush and Ashcroft, Muslims have been preemptively prosecuted for what some say are their religious practices (see chapter 2); people have been investigated and arrested for protesting government policies related to the wars in Iraq and Afghanistan, with some local authorities denying permits for antigovernment protests and, even when permits were granted, arresting peaceful protestors (see afterword); people's reading habits have been subject to scrutiny by the Federal Bureau of Investigation (FBI) and the Department of Justice; and federal agents have infiltrated meetings and conventions of lawyers, law students, and organizations such as the ACLU, as well as gatherings in mosques.
* The Fourth Amendment protects us against unreasonable government searches of our homes, businesses, personal effects, and persons, and requires that searches be supported by warrants — issued by judicial officers — that describe the person or thing to be searched. Through the Patriot Act, Congress gave Bush and Ashcroft carte blanche to run roughshod over this amendment. Our computers, phones, and mail as well as business and medical records can be seized by the government without any notice to us, with a simple allegation that it is in the interest of national security to do so.
* The Fifth Amendment requires that our life, property, and liberty not be taken away by the government without due process of law. "Due process" generally means being notified of the government's intention of prosecuting or taking our possessions and being given an opportunity to be heard and to protect ourselves and our belongings. Bush and Ashcroft have devised many ways to circumvent this amendment. Muslim charities (see chapter 4) have seen their assets frozen, their offices shuttered, their directors subject to investigation, and their tax returns audited based upon secret evidence that the government refuses to disclose to them. The names of tens of thousands of Americans are on "no fly" lists, lists that subject them to increased security checks at airports. They are not told how their names got on the lists, and there is no mechanism for removing them. People who have been charged with no crime have been imprisoned for months, even a year or more in a few instances, to testify before grand juries or to be interrogated by government agents. The Fifth Amendment's protection against self–incrimination is violated when a statement or confession is coerced by force or threat. At least one American citizen and one Canadian citizen have been imprisoned by foreign countries at our government's request in order to be interrogated (see chapter 5). Some believe that they were sent abroad in order to be tortured into confessing — though the men claim they do not know what crime they are supposed to confess to. Early indications from prisoners recently released from Guantanamo Bay, Cuba, suggest that the military is conducting experiments in psychological interrogation techniques on prisoners, with questioning allowed for up to sixteen hours a day.
* The Sixth Amendment protects procedures designed to give defendants a fair trial. Attorney General John Ashcroft, using the power of executive orders to mandate procedures, has wreaked havoc on this amendment's protections. He ordered that trials of certain immigrants be held in secret, contrary to the Sixth Amendment's promise of public trials. Ashcroft also ordered that communications between certain defendants and their attorneys be monitored and recorded on audio– and videotapes, a heretofore unheard–of intrusion on the right to counsel. The right to counsel in a case in which the government is the prosecutor means little if the government can listen in on a defendant's conversations with an attorney. Prosecutors under the jurisdiction of Ashcroft have refused to produce important witnesses in the only two trials that directly involve the September 11 attacks (see chapter 2), jeopardizing the legitimacy of the trials. Ashcroft and his prosecutors undermined the fair trial of an alleged terrorist cell in Detroit, Michigan, leading the sitting judge to publicly rebuke Ashcroft, replace the prosecutors, and consider granting a new trial (see chapter 2).
* The Eighth Amendment, as interpreted by statutes and judicial decisions, requires that criminal defendants be granted bail unless they pose a danger to the community or are flight risks. Yet, even when Muslims and Arabs who have jobs, families, ties to the community, and no prior criminal record are facing trials for relatively minor and nonviolent offenses (such as visa fraud or failure to report certain transactions with foreign countries), they have been denied bail. Part of the government's strong–arm tactics seems to be to let the defendants languish in jail, lose their jobs, and jeopardize the well–being of their families in the hopes that they will cave in and confess. And many do, as we will see in chapter 2. Not only does this appear to be an unreasonable denial of bail, but it constitutes punishment without conviction. A Department of Justice regulation that allowed federal prosecutors to reverse an immigration–law judge's release of an immigrant on bond pending a deportation trial was recently ruled unconstitutional by a Bush–appointed San Francisco federal judge. A Department of Homeland Security regulation that became effective October 31, 2003, allows government lawyers to override an immigration judge's bond order by filing a form that automatically stays the order until the Board of Immigration Appeals makes a finding. The regulation, which was passed without public comment, does not provide any mandatory time frame for the appeal board to make a custody determination — effectively allowing an individual to be detained indefinitely. A regulation that allows a prosecutor in Ashcroft's employ to override a federal judge is not just unthinkable, it is a gross breach of the principle of the separation of powers. A system in which the prosecutors usurp judges was no doubt an Ashcroft dream come true, that is until the Republican judge sounded the wake–up call.
* In addition to bail provisions, the Eighth Amendment prohibits cruel and unusual punishment, a mandate that is commensurate with the maxim "Let the punishment fit the crime." We will discuss cases in which defendants who have not been convicted of any overt act are given long prison sentences, with no possibility of parole since there is no longer parole in the federal system (and has not been for some time). Charged with conspiracy or aiding and abetting terrorism, some are victims of being associated with someone labeled a terrorist or of supporting a cause or organization that is not supported by our government.
Throughout this book, selective cases and incidents illustrative of the most egregious government intrusions into our civil liberties will be examined.
The 1996 Antiterrorism and Effective Death Penalty Act
To all my fellow Americans ... I say, one thing we owe those who have sacrificed is the duty to purge ourselves of the dark forces which gave rise to this evil. They are forces that threaten our common peace, our freedom, our way of life.
— Persident Bill Clinton, April 23, 1995, speaking of the Oklahoma City bombing
Most critics of the war on terrorism's assault on civil liberties mark its beginning with the Clinton administration's Antiterrorism and Effective Death Penalty Act of 1996. But the U.S. government's propensity for spying on its own citizens on the professed grounds of national security goes back much further, and not just as a relic of the days when FBI Director J. Edgar Hoover engaged in illegal surveillance of American citizens. As recently as the 1980s, the FBI conducted surveillance of Americans involved in a variety of causes. Activists who supported rebel groups in El Salvador, attended rallies protesting American aid to the Salvadoran military, signed petitions, or possessed reading material associated with the Committee in Solidarity with the People of El Salvador (CISPES) were targeted for activities labeled as "terrorist" or "leftist." These investigations were conducted for more than two years, until they were finally halted by congressional hearings and the exposure of documents obtained under Freedom of Information Act (FOAI) requests. Congress denounced the scope of the anti–CISPES investigations and in 1994 enacted a law protecting First Amendment activities from FBI investigations.
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However, that law was expressly repealed by the 1996 Antiterrorism and Effective Death Penalty Act. This act was the Clinton administration's comprehensive response to both political and personal violent crime. Making the death penalty "effective" meant making it harder to appeal convictions of capital offenses. In terms of fighting terrorism, the law was a reaction to bombings of the World Trade Center in 1993 and the Oklahoma City federal building in 1995. Like the USA Patriot Act, it passed the Senate easily: 91–8. (Bill Clinton also cited the suspicious crash of TWA Flight 800 and the bombing at Atlanta's Olympic Village in 1996 as further proof of the dangers supporting the new legislation.)
Excerpted from The War on Civil Liberties by Elaine Cassel. Copyright © 2004 Elaine Cassel. Excerpted by permission of Chicago Review Press Incorporated.
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