Civil Rights After 9/11

Civil Rights Since 9/11
zaxios

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Since 9/11, and acting much like a dictatorship, the U.S. Government has made the fundamental rights of the individual subject to its convenience. The Constitutional safeguards designed to protect citizens from the misconduct of the government - the right to a trial, the right to legal counsel - have been swept aside. It is painfully clear that a government that tries actively to evade the Constitution and the Geneva Convention holds their purposes and ideas in little regard. This article discusses the measures introduced by the present U.S. Government under the guise of anti-terrorism that infringe expectations and standards regarding privacy and liberty. Let us hope that the good people of America do not elect another government that believes abandoning the U.S.'s basic principles and values is a way of defending them.
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The horror of the terrorist attacks on the World Trade Center and Washington, D.C. on September 11, 2001, has reshaped the dynamics of the world and grafted fear into the routines of millions of Americans. After 9/11, intangible concepts such as freedom and human rights were swept aside by the confronting immediacy and palpable danger of terrorism. In the days and months following the tragedy, the Bush Administration exploited the anxiety and grief of the American public to expand the powers of the Government to Orwellian extents and overrule constitutionally guaranteed freedoms. Such measures may ‘fight terror’ in the short-term, but in a more enduring sense, they do nothing but cause it.

The legislative basis of these expanded powers and the consequent deterioration of civil liberties is the USA PATRIOT Act (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001”). The Act has been the project of Attorney-General John Ashcroft, and it reflects in it his typical audacity and playful relationship with letters and words: the naming of the ‘PATRIOT’ Act was done with more than a little chutzpah, as though it is patriotic to renounce the freedoms America was conceived upon. The Act includes radically intrusive sets of long-sought ‘law enforcement’ powers with dubious relation terrorism, some of which were rejected in the House of Representatives prior to the September attacks. Nevertheless, the Act capitalized on the compulsion to act that permeated U.S. officialdom at that time, riding through the House and the Senate in the confused, chaotic urgency that characterized the weeks after 9/11. The complex 342-page document that outlines the Act’s provisions was upon the House before many representatives had had adequate time to even read it1; PATRIOT passed there 356-56, in the Senate 98-1. After having more time to study the document, several politicians grew to regret their decision to vote in favour of it; others admitted they had concerns about the potential constitutional violations of the Act but decided to vote for it as otherwise they may have been made to appear ‘unpatriotic’ by their political rivals2. Republican Don Young best described the thoughtless drive to action in response to September 11 that allowed the legislature to pass: “Everybody voted for it, but it was stupid. It was what you call ‘emotional voting.’ We didn’t follow it through; we didn’t study it.”3

The Act, unfortunately, has outlived the emotions that parented it, contrasting its begetting impetuousness with the austerity of an enacted law. After President George W. Bush signed it on October 26, 2001, the USA PATRIOT Act has continued to empower the U.S. Government to potentially violate “the 1st, 4th, 5th, 6th, 7th, 8th, and 13th Amendments”4 – it withdraws many of the most basic, defining assurances of a democratic society: privacy, openness of government, free speech and the right to a trial and legal defence. Since 9/11, the Government and its law enforcement children have been given powers similar to those of a typical dictatorship. (The Act is subject to reauthorization in 2005.)

An important aspect of a dictatorial system of government is the ability of the ruling power to detain indefinitely or restrict movements of those it considers undesirable, without being subject to a system of impartiality but power such as the courts, or having those targeted for arrest granted access to legal counsel and made able to benefit from their rights. Indeed, the U.S. Government has found three ways to exercise such powers and evade the constitutional outlines of rights, assisted by USA PATRIOT Act provisions: (1) using immigration powers in manners not intended, (2) declaring its citizens “enemy combatants” and (3) sending its prisoners to Guantánamo Bay, a Cuban site leased by the U.S. in order to elude the constitution and fundamental civil rights that would be (theoretically) guaranteed to those on U.S. soil. The capability to impose indefinite detention without trial or other external arbitration is the most flagrant way in which the U.S. Government has redefined its powers in variance to constitutional freedoms and has departed from an ideological commitment to its citizens’ right to self-determination.

After 9/11, law enforcement arrested over 1200 ‘terror suspects’ with methods so arbitrary they included arresting Arab-looking migrants they met in the street. Such arrests were documented in an August 2002 report from Human Rights Watch, the definitive report on the subject. In one instance, on October 11, 2001, an Egyptian man asked a police officer for directions to an immigration attorney’s office. The police officer asked what nation he came from (“Egypt”), and then if he currently had a valid visa, and the man replied he didn’t and that was why he was going to see his lawyer. The man was then arrested and detained for six months in connection to the 9/11 attacks, without being charged for any crime. He was then deported.5 Another Egyptian was arrested after a hotel clerk said he looked “suspicious.” He was first charged with trespassing in the hotel he was staying in, then held as a material witness, then finally charged for violating the terms of his visa on a previous visit to the U.S. He was subsequently deported (two months after his arrest).6 In another instance, police were given a ‘tip-off’ by an ‘eyewitness’ (who later failed a polygraph test) that two “Arabs” were discussing anthrax. The police found and followed the two men, whom they arrested as ‘terror suspects’ at a service station while they were filling up their car with petrol. The police also arrested an Indian businessman who was there minding the shop for his uncle (and despite being in the country legally was held in custody for 18 days) and a Pakistani who just happened to be there at the time.7 Human Rights Watch considered the significance of such arrests: “Physical liberty is a fundamental law affirmed in international law and in the U.S. Constitution. Arbitrary detention is the antithesis of respect for that right. An individual who is arbitrarily detained is rendered defenceless by the coercive power of the state.”8

In order to detain such persons in a criminal investigation (some of whom were held for up to seven months), incommunicado, without charges, with questionable access to counsel, the Government abused pre-existing immigration law. The INS (Immigration and Naturalization Service) has the power to hold immigrants in detention while deportation proceedings are pending if they are deemed dangerous or in risk of flight. The INS and the Justice Department, since 9/11, have misrepresented these powers to deny those caught in the post-9/11 dragnet – so-called “special interest” cases – constitutionally guaranteed legal rights. Human Rights Watch notes: “The Department of Justice has sought to keep “special interest” detainees confined in the absence of evidence that they were dangerous or a flight risk. Their release from jail has been contingent on government “clearance,” that is a decision that they were not linked to nor had knowledge about terrorist activities. In effect, “special interest” detainees have been presumed guilty until law enforcement agents concluded otherwise.”9

After their arrests, many detainees have been coerced out of or simply refused access to an attorney. Free representation is as essential as the courts in ensuring that the rights of the suspect in a criminal investigation are recognized and respected, and it is a right guaranteed by the Fifth Amendment. Law enforcement officials exploited immigration law to sidestep obligations to respect such rights, as immigration regulations do not provide free counsel to those detained on immigration violations – utilized here by the FBI to hold those actually in a criminal investigation without the rights to counsel they would normally be assured. All detainees interviewed by Human Rights Watch for the August 2002 report were interrogated without counsel.10 Most were discouraged from taking counsel through statements such as, “If you are going to take a lawyer, it could be a very long process.”11 Many of those who insisted on an attorney were only allowed to phone for one after 5PM, when most had left their office. Some suffered abuse and threats during interrogation: “We will make the Egyptian authorities give your family hell if you don’t cooperate.”12 (According to Human Rights Watch, such abuse is “in violation of U.S. Constitutional and international standards”13.) The result was that 80% of all detainees appeared before immigration tribunals without representation.14

Those detained under immigration violations were questioned for the benefit of criminal investigations and held in custody as suspects in the 9/11 inquiry, rather than on immigration charges. Use of the INS to detain terror suspects is a patent and unconstitutional effort to refuse prisoners their constitutional rights. “In practice, the FBI has used administrative proceedings under the immigration law as a proxy to detain and interrogate terrorism suspects without affording them the rights and protections the U.S. criminal system provides,” noted Human Rights Watch. Detainees, who have only been held on immigration violations, have been interrogated aggressively about September 11 for up to six hours without break, food or water.

While the opportunity to misuse immigration law has provided the U.S. Government with an occasion to evade adherence to constitutionally pledged human rights, the Guantánamo Bay facility is the U.S. Government’s more hostile approach to the problem of civil liberties – there they have created an area where the Constitution doesn’t apply, while at the same time refused to apply statuses to those detained there in an attempt to avoid international obligations regarding prisoner treatment by forming an effectual legal abyss in categorization. The result is the hundreds of detainees there are given no rights at all – no access to counsel, no right to a trial (they are not even charged), torture: prisoners with no status are simply held indefinitely.15

That Guantánamo detainees have no rights has been secured by U.S. courts. In March 2003, a federal appeals court ruled that U.S. courts had no jurisdiction on Guantánamo Bay because the base is of Cuban sovereignty. But because the land is leased to the U.S. and under U.S. control, Cuban courts have no jurisdiction there either. “The United States may have succeeded in carving out a piece of the world devoid of courts and the fundamental rights they protect,” observed a Human Rights Watch editorial.16

Neither do detainees seem to be protected by the Geneva Convention. The war with Taliban ended with the installation of the Hamid Karzai government in Afghanistan, yet – illegally – the U.S. continues to hold Taliban fighters in Guantánamo (against article 118, that prisoners of war are to be “released and repatriated without delay after the cessation of active hostilities”). The Guardian observed that Guantánamo is violating 12 other articles of the 3rd Geneva Convention:

“The US government broke the first of these (article 13) as soon as the prisoners arrived, by displaying them… on television… In breach of article 18, they had been stripped of their own clothes and deprived of their possessions. They were then interned in a penitentiary (against article 22), where they were denied proper mess facilities (26), canteens (28), religious premises (34), opportunities for physical exercise (38), access to the text of the convention (41), freedom to write to their families (70 and 71) and parcels of food and books (72).”17

Additionally, Article 17 rules that prisoners are not obligated to give more than their name, rank, serial number and date of birth. According to the Article, no “coercion may be inflicted on prisoners of war to secure from them information of any kind whatever.” The U.S., however, has interrogated all their prisoners of war at Guantánamo – some up to 60 times altogether – in the hope that they will say something helpful about al-Qaeda.

To break their will and discourage their reticence, Guantánamo captives also suffer what is known as “torture lite” – a set of practices condemned by human rights organizations, the U.N. and the U.S.’s own State Department. In “torture lite”, prisoners are exposed to loud noises and bright lights, thrown against walls and bound in painful conditions. Additionally, they are often “packaged” for transport: tied to stretchers with duck tape and fixed with gags and hoods. According to one U.S. official who had supervised the handling of accused terrorists, “If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job.” Another official explained that third world countries are on hand if more than “torture lite” is required: “We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.”18 (The U.S. Government claims that they are sent to third world countries because of “cultural affinity”.) A certain extent of beating does occur in U.S. facilities, however. “According to Americans with direct knowledge and others who have witnessed the treatment, captives are often ‘softened up’ by MPs and U.S. Army Special Forces troops who beat them up and confine them in tiny rooms.”19

Basil Fernando, the Executive Director of the Asian Human Rights Commission, a member of the OMCT network, criticized the U.S.’s use of torture, observing in a recent press release that, “the argument favouring limited use of torture is contradicted by all of our experience… When torture is no longer absolutely prohibited, law enforcement attitudes change. Over time, the mentality that torture is acceptable comes to infect the entire system, and even persons accused of normal crimes get the same treatment as suspected terrorists…Terrorists do not suffer in such an environment: rather, they thrive in it. As the system of law enforcement collapses, they obtain many practical advantages, and are also prepared for any consequences.”20 While degraded civil liberties and excessive government powers – torture included – may provide immediate benefits in the safeguarding of national security, the long-term result is a decayed system of law that can only benefit terrorists and the principles they abide by.

In response to charges of Geneva violation, the U.S. has sometimes claimed that the Guantánamo facility is exempt from Geneva specifications because its detainees are not “prisoners of war” but “enemy combatants”. 21 The “enemy combatants” term has yet to be defined, which means that prisoners have no technical status and – the U.S. Government intends – can be guaranteed no rights as no specifications have been set for them. Such a practice is unlawful, however, as Articles 4 and 5 (respectively) of the third Convention provide that all persons detained as suspected members of a militia (such as the Taliban) or a volunteer corps (such as al-Qaeda) must be considered prisoners of war, and furthermore, that if that status is disputed, prisoners “shall enjoy the protection of the present convention until such time as their status has been determined by a competent tribunal.” The Government’s stance has experienced no authentication by any such tribunal, which makes their handling of prisoners a violation to the Geneva Convention and Pentagon commanders such as Secretary of Defense Donald Rumsfeld liable to war crimes charges. Perhaps most revealing about the attitudes of the U.S. Government in their handling of the Geneva Convention is that they actually want to circumvent the Convention’s purpose and treat their prisoners inhumanely. Can any government so determined to find loopholes in human rights agreements be trusted to use the expansive powers granted by the USA PATRIOT Act responsibly?

Another post-9/11 loophole the U.S. Government has exploited to avoid its criminal justice system is to declare a criminal or an undesirable an “enemy combatant” in the “war on terror.” On June 9, 2002, Jose Padilla, an American citizen arrested on U.S. soil, was declared an “enemy combatant”, and taken to a military brig in South Carolina. Padilla has not been charged with a crime nor given access to his lawyer. Although an American citizen, once transformed into an “enemy combatant” he has no rights, effectively no citizenship, and may be kept in jail indefinitely – once again, without a trial or any proof of guilt. The Government has merely bypassed the courts and decided Padilla is culpable and has punished him accordingly. (Yaser Hamdi, a U.S. citizen arrested in Afghanistan, experienced similar treatment.) Such treatment and power is reminiscent of a police state and ought to be foreign to a democratic system.22 Of usage of the “enemy combatant” loophole, Human Rights Watch warned, “The President is claiming unfettered power to circumvent the justice system and its safeguards of basic rights.”23 Indeed, in this way, the U.S. Government can merely arrest anyone it considers objectionable, jail them without charges and provide them no course to challenge their incarceration. The Justice Department’s actions are designed to overturn that which protects constitutional rights.

Once again, these new powers are justified by the U.S. Government as ‘essential tools to combat terror.’ Terrorism has grown to seem more like the concept hijacked than the concept initiating; the term ‘national security,’ ostensibly a civil rights violation cure-all, has become the Government’s explanation and scapegoat for any action used to interfere with freedom and justice. The Government insists on the necessity of their new powers to handle the perpetual crisis that is the ‘war on terror’: perhaps these arguments would be more persuasive if the U.S. was using its expanded powers only to combat ‘terrorism.’ A September 27, 2003, New York Times article entitled “US Uses Terror Law to Pursue Crimes from Drugs to Swindling” describes how the Department of Justice has been using the dramatic new powers provided by the PATRIOT Act to investigate normal crimes, completely unrelated to terrorism. The article discusses reactions to increasing information in the Department’s misuse:

“Elliot Mincberg, legal director for People for the American Way, a liberal group that has been critical of Mr. Ashcroft, said the Justice Department's public assertions had struck him as misleading and perhaps dishonest. “What the Justice Department has really done,” he said, “is to get things put into the law that have been on prosecutors’ wish lists for years. They’ve used terrorism as a guise to expand law enforcement powers in areas that are totally unrelated to terrorism.” A study in January by the General Accounting Office, the investigative arm of Congress, concluded that while the number of terrorism investigations at the Justice Department soared after the Sept. 11 attacks, 75 percent of the convictions that the department classified as “international terrorism” were wrongly labeled. Many dealt with more common crimes like document forgery.”24

As the months since September 11 pass, it seems more and more that President Bush, Vice President Dick Cheney and Attorney-General John Ashcroft commandeered terrorism as an excuse to introduce long sought-after powers far more than they did react to it by introducing powers designed for its prevention; terrorism has been an emergency capitalized upon. As John W. Dean, a columnist, has observed: “Bush has made terrorism his raison d'être, as he shamelessly and endlessly exploits it, actually using its threat to govern. More specifically, he is using terrorism to “manufacture consent,” to borrow newspaper columnist Walter Lippmann's phrase.”25

Even if the Department of Justice did only apply its powers to those it sees as involved in terrorism, they would still be rarely restricted. This is because the PATRIOT Act has revised ‘terrorism’ – the term under which Padilla and Hamdi were arrested and stripped of their fundamental rights – to include acts of ‘domestic terrorism.’ Section 802 of the Act states that a person is involved in domestic terrorism if they perpetuate any act “dangerous to human life” that conflicts with state or national law and appears to be intended to (i) intimidate or coerce a civilian population, (ii) influence the policy of a government by intimidation or coercion or (iii) affect the conduct of a government by mass destruction, assassination, or kidnapping. One observer comments, ““The nature of the conduct engaged in by a [terrorist] enterprise will justify an inference that the standard [for opening a criminal investigation] is satisfied, even if there are no known statements by participants that advocate or indicate planning for violence or other prohibited acts.” That conduct can be simply “intimidating” the government, according to the PATRIOT Act.”26 Certainly, such a definition of ‘terrorism’ is so broad it could easily target any form of civil disobedience, such as that practiced by Greenpeace.27

Indeed, in the post-9/11 free speech climate, Greenpeace and any other individual or group exercising the right to political dissent is vulnerable to prosecution from the Department of Justice, removal by the Secret Service or solemn visits from the FBI. These are the activities of a Government and a Presidency that holds free speech in little regard and is prepared – enthusiastic – to try to extinguish it. In April 2003, two Greenpeace members boarded a cargo vessel thought to be to carrying illegally logged mahogany, with a sign reading, “President Bush: Stop Illegal Logging.” The intention was to alert the Government to the contents of vessel so it could be seized. Instead, the protesters were detained, and the vessel went unchecked. Ignoring Greenpeace’s message is not unusual. But on July 13, 2003, fifteen months later, the Department of Justice began an unprecedented prosecution of Greenpeace for the boarding, charging the entire organization with the violation of an archaic 1872 law prohibiting the unauthorized boarding of “any vessel about to arrive at the place of her destination.”

It had been a routine protest, met by an unparalleled (unparalleled at least in ‘democratic’ nations) response – an attempt to smother First Amendment rights to the expression of remonstration. A successful conviction would set a dangerous precedent, one that would permit the Government to legally – if unconstitutionally – attack any form of civil disobedience. The ramifications of the charges have been widely discussed. “Never before has our government criminally prosecuted an entire organization for the free speech activities of its supporters,” stated John Passacantando, Executive Director of Greenpeace in the U.S., while their lawyers claim that the prosecution “could significantly affect our nation’s tradition of civil protest and civil disobedience, a tradition that has endured from the Boston Tea Party through the modern civil rights movement.” Bruce S. Ledewitz, a law professor at Duquesne University in Pittsburgh who specializes in civil disobedience, voiced agreement with the Greenpeace lawyers: “There is not only the suspicion but also perhaps the reality that the purpose of the prosecution is to inhibit First Amendment activities.” Passacantando predicted, “If we were to lose this trial it would have chilling effect on Greenpeace and on other groups that exercise their First Amendment right aggressively… The federal government is using 9/11 to come down harder on an action like this, which was a good and dignified and peaceful action.” Illuminatingly, the prosecution acknowledged the scope of the prosecution and that it is in fact an attack on protest in general: “The heart of Greenpeace’s vision is the violation of the law” (which could apply to any nongovernmental organization condoning political dissent) “…[a conviction could have a] chilling effect on First Amendment Rights.” 28

Charles Levendosky, who writes for the International Herald-Tribune, observed: “The pattern is clear: The Bush administration wants to suppress civil disobedience and peaceful protest. The federal government has never criminally prosecuted an entire organization for the free speech activities of its supporters. It’s an attack on the very core of the First Amendment.” 29

This vision of quiet, obsequious civil obedience is already being unconstitutionally implemented. The International Herald-Tribune reports:

“Anti-Bush protesters are now relegated to what are euphemistically called Free Speech Zones. These areas are cordoned off as far as a mile away from the President and the main thoroughfares, so that Bush cannot see the demonstrators, or their signs of protest, or hear their chants. The free speech enclosures are only for those who disagree with the Administration’s current policies. Those citizens who carry pro-Bush signs are allowed to line the street where the president's motorcade passes.” 30

These measures, converse to all First Amendment principles and dictatorial in philosophy, are legally justified, once again, by the use of pre-existing laws in unanticipated, undemocratic manners. Laws grant the Secret Service the right to restrict access to the President for the purpose of security; here they have been used to stifle protests. One protester refused to stay in the “free speech zone” and stood with the pro-Bush welcomers, with his sign “No more war for oil.” He was asked by Secret Service agents to remove the board and move to the “free speech zone,” out of sight of the President. He refused. He now faces six months in jail or a $5000 fine.

Eleven members of the House of Representatives expressed their opposition to attempts to curtail protest and free expression in a letter to Attorney-General John Ashcroft: “As we read [in] the First Amendment to the Constitution, the United States is a ‘free speech zone.’ In the United States, free speech is the rule, not the exception, and citizens’ rights to express it do not depend on their doing it in a way that the President finds politically amenable… We ask that you make it clear that we have no interest as a government in ‘zoning’ constitutional freedoms, and that being politically annoying to the President of the United States is not a criminal offense. This prosecution smacks of the use of the Sedition Acts two hundred years ago to protect the President from political discomfort. It was wrong then and it is wrong now.” 31

A July 2003 article in ZMag on the PATRIOT Act by Jim Cornehls, professor and director of the Law and Public Policy Graduate Certificate Program in the School of Urban and Public Affairs, University of Texas, documents visits by the FBI to those overtly skeptical of President Bush and his Administration’s policies: “Individuals have been questioned by the FBI about their political beliefs for being openly critical of a possible war against Iraq. In San Francisco, a 60-year-old retiree remarked at his local gym that he thought any war with Iraq was not just about fighting terrorists, but about corporate profits and oil. He promptly received a visit at home from the FBI with questions about his political beliefs. The FBI paid a call on a North Carolina college student for displaying an “un-American poster” in her own home. The poster in question was critical of President Bush’s stand on capital punishment while serving as governor of Texas. While there the FBI agents asked the student if she had any pro-Taliban materials.” 32 Such repressive measures are unhealthy signs for a ‘democratic’ society, where conflicting political beliefs and freedom to criticize the prevailing power are the two most requisite aspects of the system of government.

Freedom of speech and privacy are indissoluble partners in respect for individuality. Predictably, under President Bush, privacy rights have been suffered severely alongside free speech ones: attorney-client privilege has been abolished, and government agents can listen in on such conversations without a court order (and thus without probable cause – any evidence of guilt of any crime) 33; FBI agents may search premises without the owner or resident present and without notifying them; FBI agents may gain entrance to private property, install keystroke loggers on computers (which covertly record every key pressed), gain access again and retrieve the data, while the resident may not be notified (similarly, it is now easier for the FBI to perform wiretaps). For the last two, a court order is required, however, the PATRIOT Act provides that a court order is given without exception if the investigators specify that the inquiry relates to terrorism. After indicating that, investigators must be given any court order, without showing any more evidence or establishing probable cause. Under the PATRIOT Act, investigators may now easily override and ignore the structures meticulously designed to balance investigatory power with the need to protect citizens’ privacy and dignity.

Spying on American citizens through electronic means is another pivotal aspect of the Bush Administration’s vision for security from terror. A project named Carnivore has been scaled up since September 11, which records electronic communications such as email traffic and scans those with “suspicious” content (Carnivore has since been renamed to DCS1000 to appear more harmless). No court order is required to sanction any of the DCS1000’s surveillance.34 Additionally, the FBI has issued a number of “national security letters” (effectively “administrative subpoenas”) that require organizations and businesses to turn over electronic records concerning telephone calls, email and finance. The PATRIOT Act has deeply lowered the standard for the release of these national security letters; they may now be issued from FBI field offices instead of national headquarters and are not subject to judicial review. Similarly, Attorney-General John Ashcroft has signed more than 170 “emergency foreign intelligence warrants” (three times the total number from the preceding 23 years), which immediately authorize wiretaps and searches of suspected national security threats. The warrants are also not subject to review until 72 hours after issuance, and even at that point, they may be viewed only by a secret court. “Beryl A. Howell, former general counsel to Sen. Patrick Leahy (D-Vt.) and a specialist in surveillance law, described national security letters as “an unchecked, secret power that makes it invisible to public scrutiny and difficult even for congressional oversight.”” 35 Importantly, none of the information gathering projects is subject to consistent impartial, external oversight, which would ensure consistency and justice. Finally, the “Total Information Awareness” project compliments the other electronic shadowing measures. US$20 million in contracts have been awarded by the Defense Department to develop the system, whose goal is to systematize “financial, telephone, travel and medical records” for millions of Americans. It is by far the largest civilian surveillance system ever undertaken in the world. (As of February this year, the programme was still in prototypal stages, however.) 36 Today, the U.S. Government has more power to watch its citizens and intrude on their personal asylum than ever before. Such privacy incursions as those listed are repugnant in a democracy, yet are no less present in the U.S. today for that fact.

Often implementations of the PATRIOT Act throw a one-two punch, free speech and privacy violations being applied simultaneously. Under Section 215 of the Act, a secret court can authorize the FBI to inspect or seize bookstore or library records. Once again, they are not required to show probably cause, overruling the Fourth Amendment. Perhaps most astoundingly, however, with this power is an unprecedented civilian gag order that actually forbids the library or bookstore to disclose that the inspection occurred, under threat of criminal sanction. FBI agents can also interrogate a suspect’s co-workers and stipulate a similar silence. 37 Such orders prevent people reporting Government activities and, once again, run counter to the fundamental ideas of a democracy. The gag order is plain First Amendment contravention.

Judging by the Government’s response to openness in others, it is perhaps unsurprising that it has adopted a model of secrecy in its own work, most notably in its use of secret arrests. The government, for example, refused to release the names or any other information about the hundreds of immigrants arrested in the 9/11 dragnet. Most startling is that such secrecy – which one judge ruled was “odious in a democratic society” – has ultimately been validated by the courts. After the detainments, multiple organizations pressed for the release of data concerning the prisoners; they then used the Freedom of Information Act (FOIA to filed suit against the Government in the Federal District Court (Center for National Security Studies, et al. v. U.S. Department of Justice). The lower court ruled against the Government on August 2, 2002, by which time most detainees had been deported or released on bond anyway. Nevertheless, the Government continued to refuse to disclose any information and appealed. At the outrage of human rights organizations including Human Rights Watch and the American Civil Liberties Union, on June 17, 2003, the Federal Appeals Court ruled in affirmation of the Government’s refusal to release details including names of the hundreds of detainees arrested after 9/11. “For the first time ever… a U.S. court has sanctioned secret arrests,” said Kate Martin, one of the plaintiff’s attorneys. 38 Once again, a hazardous precedent has been set. When government work is kept secret, mediation to their actions – by nongovernmental organizations, by the people, by the courts – is prevented and resultantly, their power is unchecked and hence unrestrained.

Secrecy has other outcomes as well, equally devastating to democracy. In post-Watergate America, the maintenance of an open and honest government has been essential in forming the trust in governance one instils from clearly established accountability – with good reason: if the government is truly serving the people it should have nothing to hide from them. Furthermore, one must remember the nature of government and be reminded that the public must see the acts of those in power if they are to be represented in them, which is the intention of democracy. Trials, as in all aspects of government, must be public if they are to be free from the temptation of the government to impose its will illegally, circumventing the systems in place for maintaining rights (although, with the present government, secrecy seems not to have been a prerequisite for that). Additionally, a lack of free information silences free criticism of the government by failing to provide the basic knowledge necessary for such scrutiny, in manners essential to free press and informed citizenship and subsequent democratic process. Indeed, a true democracy hinges on openness, as the people’s evaluation of the government – and the degree of their will’s reflection in suffrage – is dependant on the degree of their understanding of the actions of the ruling power. When the perceptions of the people are manipulated by the government, that society effectively forgets democracy – as the will of the people has been manufactured by the rulers – and adopts an abstract dictatorship. Indeed, since 9/11, the U.S. Government has dealt with its own citizens in a Gestapo-like manner with Gestapo-like silence, and have as such deprived them of the right to properly assess their actions. Consequently, the Government’s secrecy compliments its more flagrant withdrawals of power and rights from the people.

Important to note is that the ‘war on terror’ is unlike any other period of unconstitutional repression, as this ‘war’ – dissimilar to WWII, for example – is indeterminate in its scope and practical parameters, and accordingly, it has no foreseeable end. By threatening to continue indefinitely, the ‘war on terror’ ensures that wartime-style First Amendment, privacy and rights violations assume customariness. Indeed, of such ‘homeland security’ measures, Vice President Dick Cheney said, “I think of it as the new normalcy.” 39

Conservatives feel lost in a complicated place, and a peaceful world that has problems anyway is one of those. Republicans need a simplistic conflict between ‘good’ and ‘evil’ – a monochrome illustration of the world – to distract from their inept domestic politics. (While it is the leftists that suffer criticism for being so depressing, it is conservatives that thrive off the world’s problems. They do, however, present these problems with such straightforward solutions – ‘build more weapons’ – that progress and success seem bright and inevitable, one can hardly feel disconsolate. Frightened, terribly frightened, of course, but never would we doubt the competence of the leadership so boldly and actively – unreflectively – handling our enemies. For some reason, this courageous yet ultimately destructive approach to leadership seems to inspire confidence.) As such, in the distressing absence of ‘evil’ that occurred after the fall of the Soviet Union in 1992, Republicans grew confused and uncertain. 9/11 became the perfect scapegoat to reinstall fear into the American heart, fear being the fundamental tool in conservative governance. In the same way fear was used to stock up nuclear weapons and develop new missiles, the Bush Administration utilized 9/11 and terrorism and abused the anguish and anxiety of the American public to strip them of their civil liberties. Most plainly, the Government exploited the people’s trauma and vulnerability to take their rights.

9/11 – an attack on America, and, according to President Bush, its philosophies – should have been a time at which the United States reasserted its fundamental principles, principles based on the belief in the inalienable, self-evident rights of the individual. It is in these high principles that the U.S. has always sourced its strength. September 11 should have been a time that the United States used to emphasize the ideas that distinguishes it from the states that repress their people and fiscally and ideologically sponsor terrorism. Instead, the U.S. ignored these values. Principles are pointless if not adhered to when relevant, and they are relevant when confronted, when their presence would guide our actions. At this time – the time when these very principles were under assault – America showed the relevance of freedom in its governance. The U.S. government’s readiness to withdraw the civil rights that are the basis of the American ideology when it was momentarily more convenient to do so is indicative of the government’s lack of conviction for these principles and their general lack of significance to its rulership. Here, America has shown it is a void of ideological fortitude. In this America, the Constitution appears more to be a cloak than a soul. This ‘timeless’, ‘core’ Constitution has proven itself helpless in guiding the actions of this Administration, as though it is a document of no power at all, so easily overwritten by one Presidency. Americans have lost or are losing their society’s most sacred aspects, the ones on which democracy depends: privacy, free speech, justice and openness. In its attempt to protect itself, the U.S. has abandoned the very ideas it founded itself on and in their place borrowed new features from the governments of its “axis of evil.” How can one possibly claim to fight terror by instituting it?

BIBLIOGRAPHY

GENERAL

MichaelMoore.Com; Michael Moore’s leftist website, opposed to President Bush and the PATRIOT Act. Too subjective to be very helpful.

REPORTS

“Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Human Rights Watch, Vol. 14, No. 4 (G) - August 2002

“Imbalance of Powers: How Changes to U.S. Law & Policy Since 9/11 Erode Human Rights and Civil Liberties (September 2002 - March 2003)”, Lawyers Committee for Human Rights. Brilliant, 123-page dissertation on human rights violations. Referred to for general information; not enough time to use for specifics in essay.

NEWS REPORTS

“Guantánamo: Legal Black Hole,” Thijs Berman, Radio Netherlands, January 17, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0117guantanamo.htm] Good article on Gunatanamo

“US Courts Abandon Guantánamo Detainees,” Jamie Fellner, Human Rights Watch Commentary, March 21, 2003 [http://hrw.org/editorials/2003/us032103.htm] Another good article on Guantánamo.

“One Rule for Them: Five PoWs Are Mistreated in Iraq and the US Cries Foul. What about Guantanamo Bay?” George Monbiot, The Guardian, March 25, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0325pows.htm] Excellent article on Geneva violations.

“U.S. Decries Abuse but Defends Interrogations: 'Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities,” Dana Priest and Barton Gellman, Washington Post, December 26, 2002 [http://www.washingtonpost.com/ac2/wp-dyn/A37943-2002Dec25?language=printer] Excellent, detailed article on torture; very useful.

“Fears That US Will Use 'Torture Lite' on Al-Qaida No 3,” Duncan Campbell, The Guardian, March 5, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0305fears.htm] Very good article on use of torture.

“Torture and the Fight against Terror,” World Organisation Against Torture, January 28, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0128torture.htm] Insightful article about the use of torture in general.

“Watching Guantánamo,” Washington Post, March 14, 2003 [http://www.globalpolicy.org/intljustice/general/2003/0314guan.htm] Good article about Guantánamo.

“Enemy Combatant Vanishes Into a 'Legal Black Hole',” Paula Span, Washington Post, July 30, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0730vanishes.htm] Very good article about ‘enemy combatant’ loophole.

“U.S. Circumvents Courts With Enemy Combatant Tag,” Human Rights Watch News, June 12, 2002 [http://www.hrw.org/press/2002/06/us0612.htm] Sagacious article about ‘enemy combatant.’

“US Uses Terror Law to Pursue Crimes from Drugs to Swindling,” Eric Lichtblau, New York Times, September 27, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0927swindling.htm] Excellent article on misuse of PATRIOT Act.

“Liberties Disappearing before our Eyes,” John W. Dean, Los Angeles Times, September 21, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0921disappearing.htm] Good summary article on erosion of rights.

“Typical Greenpeace Protest Leads to an Unusual Prosecution,” Adam Liptak, New York Times, October 11, 2003 [http://www.globalpolicy.org/ngos/state/2003/1011greenpeace.htm] Very good article on free speech violations.

“Keeping the Protesters Out of Sight and Out of Hearing,” Charles Levendosky, International Herald Tribune, November 6, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/1106outofsight.htm] Another very good article on free speech violations.

“US Steps Up Secret Surveillance,” Dan Eggen and Robert O'Harrow Jr., Washington Post, March 24, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0324surveillance.htm] “

“Government Contractors Begin Developing Data Tracking Network,” Sharon L. Crenson, Associated Press, February 13, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0213tracking.htm] On tracking networkhighly useful.

“New US Court Ruling Sanctions Secret Arrests,” Jim Lobe, OneWorld, June 18, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0618arrests.htm]

“Americans adjust to ‘new normalcy,’” Calvin Woodward, Associated Press, October 27, 2001 [http://rutlandherald.nybor.com/search/Categories/Article/36466] Useful, freshly post-9/11 article for information on early reactions to the Government.

ENDNOTES

1 “War on the Bill of Rights,” Nat Hentoff, In These Times, September 5, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0905bill.htm]
2 Ibid.
3 Ibid.
4 “The USA Patriot Act: The Assault on Civil Liberties”, Jim Cornehls, Zmag, July/August, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0806patriot.htm]
5 “Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Human Rights Watch, Vol. 14, No. 4 (G) - August 2002, pp 14
6 Ibid, pp 13
7 Ibid, pp 13
8 Ibid, pp 46
9 Ibid, pp 4
10 Ibid, pp 36
11 Ibid, pp 42
12 Ibid, pp 38
13 Ibid, pp 37
14 Ibid, pp 43
15 “Guantánamo: Legal Black Hole,” Thijs Berman, Radio Netherlands, January 17, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0117guantanamo.htm]
16 “US Courts Abandon Guantánamo Detainees,” Jamie Fellner, Human Rights Watch Commentary, March 21, 2003 [http://hrw.org/editorials/2003/us032103.htm]
17 “One Rule for Them: Five PoWs Are Mistreated in Iraq and the US Cries Foul. What about Guantanamo Bay?” George Monbiot, The Guardian, March 25, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0325pows.htm]
18 “U.S. Decries Abuse but Defends Interrogations: 'Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities,” Dana Priest and Barton Gellman, Washington Post, December 26, 2002 [http://www.washingtonpost.com/ac2/wp-dyn/A37943-2002Dec25?language=printer]
19 “Fears That US Will Use 'Torture Lite' on Al-Qaida No 3,” Duncan Campbell, The Guardian, March 5, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0305fears.htm]
20 “Torture and the Fight against Terror,” World Organisation Against Torture, January 28, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0128torture.htm]
21 “Watching Guantánamo,” Washington Post, March 14, 2003 [http://www.globalpolicy.org/intljustice/general/2003/0314guan.htm]
22 “Enemy Combatant Vanishes Into a 'Legal Black Hole',” Paula Span, Washington Post, July 30, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0730vanishes.htm]
23 “U.S. Circumvents Courts With Enemy Combatant Tag,” Human Rights Watch News, June 12, 2002 [http://www.hrw.org/press/2002/06/us0612.htm]
24 “US Uses Terror Law to Pursue Crimes from Drugs to Swindling,” Eric Lichtblau, New York Times, September 27, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0927swindling.htm]
25 “Liberties Disappearing before our Eyes,” John W. Dean, Los Angeles Times, September 21, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0921disappearing.htm]
26 Same as 1.
27 Same as 4.
28 “Typical Greenpeace Protest Leads to an Unusual Prosecution,” Adam Liptak, New York Times, October 11, 2003 [http://www.globalpolicy.org/ngos/state/2003/1011greenpeace.htm]
29 “Keeping the Protesters Out of Sight and Out of Hearing,” Charles Levendosky, International Herald Tribune, November 6, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/1106outofsight.htm]
30 Ibid.
31 Ibid.
32 Same as 4.
33 Same as 1.
34 Ibid.
35 “US Steps Up Secret Surveillance,” Dan Eggen and Robert O'Harrow Jr., Washington Post, March 24, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0324surveillance.htm]
36 “Government Contractors Begin Developing Data Tracking Network,” Sharon L. Crenson, Associated Press, February 13, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0213tracking.htm]
37 Same as 4.
38 “New US Court Ruling Sanctions Secret Arrests,” Jim Lobe, OneWorld, June 18, 2003 [http://www.globalpolicy.org/wtc/liberties/2003/0618arrests.htm]
39 “Americans adjust to ‘new normalcy,’” Calvin Woodward, Associated Press, October 27, 2001 [http://rutlandherald.nybor.com/search/Categories/Article/36466]