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
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
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 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
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
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.
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
The Office of Homeland
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
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
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
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
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
More Powers to the FBI and
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
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
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
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.