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A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
November 20, 2001
Sam Bahour
Plain Truths
About Palestine
November 19, 2001
Edward
Said
Suicidal
Ignorance
November 18, 2001
John Farley
Shame on You,
Chelsea!
Kalpana
Sharma
Flower
Power:
A Blow for Peace
Tony Mauro
The Quirin
Ruling:
FDR's Horrible Precedent for Bush's Terror Courts
C.G. Estabrook
American
Crusades
November 17, 2001
Zoltan Grossman
It Ain't
Over Til It's Over
November 16, 2001
Rick Giombetti
Rep.
McDermott and
the Decay of Liberalism
Fawzia Afzal-Khan
The Voices
of Muslim Feminists
Mokhiber/Weissman
Kill,
Kill, Kill
November 15, 2001
George
Monbiot
Blasting
Our Way
Toward Peace
Jack McCarthy
Hitchens
Mind-Meld
and Hot Bodies
Steve
Perry
Afghan
Puzzle Palace
RAWA
We Do Not Accept
the Northern Alliance
November 14, 2001
Jensen/Mahajan
The
Press Must Press Harder on Afghanistan
David Vest
The Great Unificator
Harry
Browne
Preventing
Future Terrorism
November 13, 2001
Peter Mahoney
Veteran's
Day, 2001
Rep. Ron
Paul
Expanding
NATO
Is a Bad Idea
November 12, 2001
Robert Jensen
Goodbye to
All That...
Patriotism
Nancy
Oden
My
Day at the Airport
CounterPunch Wire
East Timor
10 Years
After the Massacre
C.G. Estabrook
Instead
of Terror
Alexander Cockburn
Wide World
of Torture
November 11, 2001
Douglas
Valentine
Homeland
Insecurity: The Politics of Terror in America
November 10, 2001
Grover Furr
Seeking an Opposition
to the Afghan War
Bruce
Kyle
Anatomy
of a Green Smear:
Backstabbing Nancy Oden
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November
20, 2001
Moving Toward A Police State
(Or Have We Arrived?)
Secret
Military Tribunals, Mass Arrests and Disappearances, Wiretapping
& Torture
By Michael Ratner
HumanRightsNow.org
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 too make our voices be heard;
it is time to stand and be counted on the side of justice and
against the antediluvian forces that have much of our country
in a stranglehold.
The domestic consequences of the war
on terrorism include massive arrests and interrogation of immigrants,
the possible use of torture to obtain information, the creation
of a special new cabinet office of Homeland Security and the
passage of legislation granting intelligence and law enforcement
agencies much broader powers to intrude into the private lives
of Americans. Recent new initiatives -- the wiretapping of attorney-client
conversations and military commissions to try suspected terrorists
-- undermine core constitutional protections and are reminiscent
of inquisitorial practices.
Although it is not discussed in this
article, the war on terrorism also means pervasive government
and media censorship of information, the silencing of dissent,
and widespread ethnic and religious profiling of Muslims, Arabs
and Asian people. It means creating a climate of fear where
one suspects one's neighbors and people are afraid to speak
out.
The claimed necessity for this war at
home is problematic. The legislation and other governmental
actions are premised on the belief that the intelligence agencies
failed to stop the September 11th attack because they lacked
the spying capability to find and arrest the conspirators. Yet,
neither the government nor the agencies have demonstrated that
this is the reason.
This war at home gives Americans a false
sense of security, allowing us to believe that tighter borders,
vastly empowered intelligence agencies, and increased surveillance
will stop terrorism. The United States is not yet a police
state. However, even a police state could not stop terrorists
intent on doing us harm. In addition, the fantasy of Fortress
America keeps us from examining the root causes of terrorism,
and the consequences of decades of American foreign policy in
the Middle East, Afghanistan and elsewhere. Unless some of the
grievances against the United States are studied and addressed,
terrorism will continue.
MILITARY COMMISSIONS: THE PERUVIAN OPTION
On November 13, President Bush signed
an executive order establishing military commissions or tribunals
to try suspected terrorists. Under this order non-citizens,
whether from the United States or elsewhere, accused of aiding
international terrorism, at the discretion of the President,
can be tried before one of these commissions. These are not
court-martials, which provide far more protections. The divergence
from constitutional protections the executive order allows are
breathtaking. Attorney General Ashcroft has explicitly stated
that terrorists do not deserve constitutional protections. These
are "courts" of conviction and not of justice.
The Secretary of Defense will appoint
the judges, most likely military officers, who will decide both
questions of law and fact. Unlike federal judges who are appointed
for life, these officers will have little independence and every
reason to decide in favor of the prosecution. Normal rules
of evidence, which provide some assurance of reliability, will
not apply. Hearsay and even evidence obtained from torture will
apparently be admissible. This is particularly frightening in
light of the intimations from U.S. officials that torture of
suspects may be an option. Rules of evidence help insure the
innocent are spared, but also that law enforcement authorities
adhere to what we thought were evolving standards of a civilized
society.
Unanimity among the judges is not required
even to impose the death penalty. Suspects will not have free
choice of attorneys. The only appeal from a conviction will
be to the President or the Secretary of Defense. Incredibly,
the entire process, including execution, can be conducted in
secret and the trials can be held anywhere the Secretary of
Defense decides. A trial might occur on an aircraft carrier
and the body of the executed "buried" at sea. The
President is literally getting away with murder.
Surprisingly, a number of prestigious
law professors (e.g. Lawrence Tribe and Ruth Wedgwood) have
accepted and even argued in favor of these tribunals. The primary
claim is that it might be necessary to disclose classified
information in order to obtain convictions. This is a pretext.
There are procedures for handling classified information in
federal courts as was done in the trial of those convicted in
the 1993 bombing of the World Trade Center. It certainly does
not provide a reason for sending suspects into a "justice"
system akin to that which the US condemned in Peru. The 1993
trials also demonstrate that these trials can be held in federal
courts.
Trials before military commissions will
not be trusted in either the Muslim world or elsewhere. Nor
should they. They will be viewed as what they are -- "kangaroo
courts." How much better to demonstrate to the world that
the guilty have been apprehended and fairly convicted. A better
solution would be for the US to go to the U.N. and have the
UN establish a special court for the trials. Judges from different
legal systems including that of the US, Muslim and civil law
countries could constitute such a court.
WIRETAPPING
ATTORNEY-CLIENT COMMUNICATIONS
At the heart of the effective assistance
of counsel is the right of a criminal defendant to a lawyer
with whom he or she can communicate candidly and freely without
fear that the government is overhearing confidential communications.
This right is fundamental to the adversary system of justice
in the Untied States. When the government overhears these conversations,
a defendant's right to a defense is compromised.
Now, with the stroke of pen, Attorney
General Ashcroft, has eliminated the attorney-client privilege
and will wiretap privileged communications when he thinks there
is "reasonable suspicion to believe" that an "inmate
may use communications with attorneys or their agents to further
facilitate act of violence or terrorism." He says that
approximately one hundred such suspects and their attorneys
may be subject to the order. He claims the legal authority
to do so without court order; in other words without the approval
and finding by a neutral magistrate that attorney-client communications
are facilitating criminal conduct. This is utter lawlessness
by our country's top law enforcement officer and is flatly unconstitutional.
This wiretapping of attorney-client communications has already
begun.
THE NEW LEGAL
REGIME
The government has established a tripartite
plan in its efforts to eradicate terrorism in the United States.
President Bush has created a new cabinet-level Homeland Security
Office; the Federal Bureau of Investigation is investigating
thousands of individuals and groups and making hundreds of arrests;
and Congress is enacting new laws that will grant the FBI and
other intelligence agencies vast new powers to wiretap and spy
on people in the United States.
THE OFFICE
OF HOMELAND SECURITY
On September 20th President Bush announced
the creation of the Homeland Security Office, charged with gathering
intelligence, coordinating anti-terrorism efforts and taking
precautions to prevent and respond to terrorism. It is not
yet known how this office will function, but it will most likely
try to centralize the powers of the intelligence and law enforcement
agencies -- a difficult, if not impossible, job -- among some
40 bickering agencies. Those concerned with its establishment
are worried that it will become a super spy agency and, as its
very name implies, that the military will play a role in domestic
law enforcement.
FBI INVESTIGATIONS
AND ARRESTS
The FBI has always done more than chase
criminals; like the Central Intelligence Agency it has long
considered itself the protector of US ideology. Those who have
opposed government policies -- whether civil rights workers,
anti-Vietnam war protesters, opponents of the covert Reagan-era
wars or cultural dissidents -- have repeatedly been surveyed
and had their activities disrupted by the FBI.
In the immediate aftermath of the September
11 attack, Attorney General John Ashcroft focused on non-citizens,
whether permanent residents, students, temporary workers or
tourists. Normally, an alien can only be held for 48 hours
prior to the filing of charges. Ashcroft's new regulation allowed
arrested aliens to be held without any charges for a "reasonable
time," presumably months or longer. (See below for new
legislation regarding detention of immigrants.)
The FBI began massive detentions and
investigations of individuals suspected of terrorist connections,
almost all of them non-citizens of Middle Eastern descent; over
1,100 have been arrested. Many were held for days without access
to lawyers or knowledge of the charges against them; many are
still in detention. Few, if any, have been proven to have a
connection with the September 11 attacks and remain in jail
despite having been cleared. In some cases, people were arrested
merely for being from a country like Pakistan and having expired
student visas. Stories of mistreatment of such detainees are
not uncommon.
Apparently, some of those arrested are
not willing to talk to the FBI, although they have been offered
shorter jail sentences, jobs, money and new identities. Astonishingly,
the FBI and the Department of Justice are discussing methods
to force them to talk, which include "using drugs or pressure
tactics such as those employed by the Israeli interrogators."
The accurate term to describe these tactics is torture. Our
government wants to torture people to make them talk. There
is resistance to this even from law enforcement officials. One
former FBI Chief of Counter-Terrorism, said in an October New
York Newsday article, "Torture goes against every grain
in my body. Chances are you are going to get the wrong person
and risk damage or killing them."
As torture is illegal in the United States
and under international law, US officials risk lawsuits by such
practices. For this reason, they have suggested having another
country do their dirty work; they want to extradite the suspects
to allied countries where security services threaten family
members and use torture. It would be difficult to imagine a
more ominous signal of the repressive period we are facing.
The FBI is also currently investigating groups it claims are
linked to terrorism -- among them pacifist groups such as the
US chapter of Women in Black, which holds vigils to protest
violence in Israel and the Palestinian Territories. The FBI
has threatened to force members of Women in Black to either
talk about their group or go to jail. As one of the group's
members said, "If the FBI cannot or will not distinguish
between groups who collude in hatred and terrorism, and peace
activists who struggle in the full light of day against all
forms of terrorism we are in serious trouble."
Unfortunately, the FBI does not make
that distinction. We are facing not only the roundup of thousands
on flimsy suspicions, but also an all-out investigation of dissent
in the United States.
THE NEW ANTI-TERRORIST
LEGISLATION
Congress has passed and President Bush
has signed sweeping new anti-terrorist legislation, the USA
Patriot Act (Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism),
aimed at both aliens and citizens. The legislation met more
opposition than one might expect in these difficult times. A
National Coalition to Protect Political Freedom of over 120
groups ranging from the right to the left opposed the worst
aspects of the proposed new law. They succeeded in making minor
modifications, but the most troubling provisions remain, and
are described below:
Rights of Aliens
Prior to the legislation, anti-terrorist
laws passed in the wake of the 1996 bombing of the federal building
in Oklahoma had already given the government wide powers to
arrest, detain and deport aliens based upon secret evidence
-- evidence that neither the alien nor his attorney could view
or refute. The current proposed legislation makes it even worse
for aliens.
First, the law would permit "mandatory
detention" of aliens certified by the attorney general
as "suspected terrorists." These could include aliens
involved in barroom brawls or those who have provided only humanitarian
assistance to organizations disfavored by the United States.
Once certified in this way, an alien could be imprisoned indefinitely
with no real opportunity for court challenge. Until now, such
"preventive detention" was believed to be flatly unconstitutional.
Second, current law permits deportation
of aliens who support terrorist activity; the proposed law would
make aliens deportable for almost any association with a "terrorist
organization." Although this change seems to have a certain
surface plausibility, it represents a dangerous erosion of Americans'
constitutionally protected rights of association. "Terrorist
organization" is a broad and open-ended term that could
include liberation groups such as the Irish Republican Army,
the African National Congress, or civic groups that have ever
engaged in any violent activity, such as Greenpeace. An alien
who gives only medical or humanitarian aid to similar groups,
or simply supports their political message in a material way
could be jailed indefinitely.
More Powers to the
FBI and CIA
A key element in the new law is the wide
expansion of wiretapping. In the United States wiretapping is
permitted, but generally only when there is probable cause to
believe a crime has been committed and a judge signs a special
wiretapping order that contains limited time periods, the numbers
of the telephones wiretapped and the type of conversations that
can be overheard.
In 1978, an exception was made to these
strict requirements, permitting wiretapping to be carried out
to gather intelligence information about foreign governments
and foreign terrorist organizations. A secret court, the Foreign
Intelligence Surveillance Court, was established that could
approve such wiretaps without requiring the government to show
evidence of criminal conduct. In doing so the constitutional
protections necessary when investigating crimes could be bypassed.
The secret court is little more than a rubber stamp for wiretapping
requests by the spy agencies. It has authorized over 13,000
wiretaps in its 22-year existence, approximately a thousand
last year, and has apparently never denied a request.
Under the new law, the same secret court
will have the power to authorize wiretaps and secret searches
of homes in criminal cases -- not just to gather foreign intelligence.
The FBI will be able to wiretap individuals and organizations
without meeting the stringent requirements of the Constitution.
The law will authorize the secret court to permit roving wiretaps
of any phones, computers or cell phones that might possibly
be used by a suspect. Widespread reading of e-mail will be allowed,
even before the recipient opens it. Thousands of conversations
will be listened to or read that have nothing to do with the
suspect or any crime.
The new legislation is filled with many
other expansions of investigative and prosecutorial power, including
wider use of undercover agents to infiltrate organizations,
longer jail sentences and lifetime supervision for some who
have served their sentences, more crimes that can receive the
death penalty and longer statutes of limitations for prosecuting
crimes. Another provision of the new bill makes it a crime for
a person to fail to notify the FBI if he or she has "reasonable
grounds to believe" that someone is about to commit a terrorist
offense. The language of this provision is so vague that anyone,
however innocent, with any connection to anyone suspected of
being a terrorist can be prosecuted. We will all need to become
spies to protect ourselves and the subjects of our spying, at
least for now, will be those from the Mid East.
The New Crime of Domestic
Terrorism
The act creates a number of new crimes.
One of the most threatening to dissent and those who oppose
government policies is the crime of "domestic terrorism."
It is loosely defined as acts that are dangerous to human life,
violate criminal law and "appear to be intended" to
intimidate or coerce a civilian population" or "influence
the policy of a government by intimidation of coercion."
Under this definition, a protest demonstration that blocked
a street and prevented an ambulance from getting by could be
deemed domestic terrorism. Likewise, the demonstrations in Seattle
against the WTO could fit within the definition. This was an
unnecessary addition to the criminal code; there are already
plenty of laws making such civil disobedience criminal without
labeling such time honored protest as terrorist and imposing
severe prison sentences.
Overall, the new legislation represents
one of the most sweeping assaults on liberties in the last 50
years. It is unlikely to make us more secure; it is certain
to make us less free.
It is common for governments to reach
for draconian law enforcement solutions in times of war or national
crisis. It has happened often in the United States and elsewhere.
We should learn from historical example: times of hysteria,
of war, and of instability are not the times to rush to enact
new laws that curtail our freedoms and grant more authority
to the government and its intelligence and law enforcement
agencies.
The US government has conceptualized
the war against terrorism as a permanent war, a war without
boundaries. Terrorism is frightening to all of us, but it's
equally chilling to think that in the name of antiterrorism
our government is willing to suspend constitutional freedoms
permanently as well.
Michael Ratner
is an international human rights lawyer and vice-president of
the Center
for Constitutional Rights. He has brought numerous suits
against the illegal use of military force by the United States
Government and specializes in opposing government spying. Mr.
Ratner teaches International Human Rights Litigation at Columbia
Law School, and is the author of The
Pinochet Papers, International
Human Rights Litigation in US Courts, and Che
Guevara and the FBI.
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