Dr. Samir Abed-Rabbo
The attack on the World Trade Center on Sept. 11 by Muslim Individuals was a criminal act that had profound implications for the Muslims, the United States and the world. My contention is that the Muslim/Arab community in the west as a whole has been subjected to extrajudicial measures and is paying a heavy price for the criminality of the few. But this is not the subject of my talk. I was asked to speak about Civil liberties in the US in the aftermath of Sept. 11 and I shall oblige.
Prior to delving into the essence of my subject, I would like to make this damming observation: The Bush administration which was caught napping by al-Quaida, rather than engaging in an honest or serious study of what went wrong it opted to deconstruct the very civil liberties enshrined in the American constitutional. Benjamin Franklin, one of the founding fathers of the USA said “Those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety.” To that I add, there should be no tradeoff between civil liberties and security. Those who advocate for security over liberties are giving those behind such violent attacks a victory over our way of life! Now let me turn to my presentation.
Civil Liberties as enshrined in the US Constitution
The United States Constitution was written in 1789 and ratified by the original 13 States within two years thereafter. This written document establishes the structure and powers of the US government, the relationship between the Federal and states governments, and enumerates the liberties and rights vested in the people.
The original constitution includes one major right that is considered the corner stone of civil liberties: Article I, Section 9 of the Constitution says "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it." This concept was written into the text of the US Constitution to preserve the basic legal right of individuals to be free from unlawful imprisonment, except only during the most extraordinary national emergencies, even greater than "war" or hostile attack. The government has to show that it is following the law, when it arrests, detains or imprisons People for reasons of state security during ‘Rebellion or Invasion.” In the last 222 yrs. this writ was suspended during the civil war and again after Sept. 11, 2001.
The most important legal protections of individuals' civil liberties in America are found in the first, fourth, fifth, sixth, eighth and fourteenth Amendments to the Constitution. The first five are part of the first 10 Amendments that are known as the Bill of Rights and were adopted in 1791. The 14th Amendment was adopted after the Civil War in 1868. These Amendments include the following rights:
The First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Fourteenth Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Threats to Civil Liberties in the aftermath of Sept. 11
In the aftermath of September 11, the Bush Administration became extremely involved in spearheading the attack on and the erosion of all the above legal rights and protections.
Starting with the USA PATRIOT ACT, the Bush Administration was essentially engaged in a grab for police powers that have been sought and rejected long before September 11, 2001. The Patriot Act was rushed through Congress with no time for most legislators to read its provisions before voting on it. There was no debate and no demonstration that this statute would cure any of the specific law enforcement problems that enabled the 9-11 attacks (such as lax airport security and the failure to keep track of known terrorist suspects who entered the USA after they were identified). Rather, it was a case of "do something, anything," regardless of the monumental human and civil rights issues at stake. When a bipartisan group of Representatives offered an alternative bill that received some actual debate, it was almost immediately voted down in favor of the administration's "PATRIOT Act".
What did this panic button legislation do? There are four major inroads it made into previously well-established legal rights. The four areas are:
The first is secrecy: it provides for secret "sneak and peak" searches, secrecy of government and legal case information, secret evidence, and secretly collected personal information. On June 18, 2003, the US Circuit Court of Appeals for the District of Columbia, in a split 2-1 decision, upheld the government's power to withhold information about those thousands of Arabs, Muslims and South Asians it secretly detained for months in the immediate aftermath of 9-11. As the Sixth Circuit Appellate Judge Damon Keith said in a case involving secret immigration hearings, "Democracies die behind closed doors."
The second area is the criminalization of dissent: This was already well underway before 9-11, in the series of massive confrontations between the anti-globalization movement and the instruments of government as in Seattle in November of 1999. After the attack of 9-11, guilt by association, deportation and exclusion of foreigners based only on membership in suspect groups, increased penalties for donating money for humanitarian purposes through the wrong organizations, and the overnight creation of a new category of "domestic terrorist" groups, took on a vigorous new life in government circles. The tragic consequences for First Amendment freedom of association, as well as Fourteenth Amendment equal protection and due process, are increasingly glaring us in the face.
A third major area is the balance of powers upon which the American model of constitutional liberty theoretically rests: The authority of courts as a check on unaccountable powers by the Legislative and Executive branches has traditionally been the last resort for protecting American liberties. The USA PATRIOT Act limits courts' authority to issue warrants, limits appeals, and limits the basis for constitutional challenges to executive branch at overreaching. Congress of course, simply abdicated its power, leading directly to the establishment of executive branch supremacy in this crisis. Some of the first major tests of this fundamental deconstructing of government powers came in the Habeas Corpus cases filed on behalf of detainees at Guantanamo Bay, Cuba. The DC Circuit Court of Appeals held, in another split 2-1 decision, that they are outside federal judicial jurisdiction, and thus effectively without enforceable legal rights.
The fourth major area is in the lowering of protections against criminal investigation: The long-established distinction between law enforcement and intelligence operations has been eliminated in cases involving suspected or alleged terrorism, opening the door to systematic abuses. The requirement of probable cause for initiating an investigation, tapping phones, monitoring internet and e-mail use, and other intrusive police actions has been eliminated in such cases, opening the door wide open to police confrontation and harassment of dissidents, and leading to continually escalating politicization of "law enforcement" in the name of fighting terrorism.
This civil liberties crisis does not end with the USA PATRIOT Act. A series of executive orders, Department of Justice Regulations, and government memos have allowed the executive branch to extend its power even further, without being effectively challenged by the other branches of government or the People. On September 21, 2001, the Chief Immigration Judge issued a memo closing certain immigration hearings to the public. On October 31 the Justice Department issued regulations for detaining people on Attorney General Ashcroft's sole discretion, a provision that was severely abused in practice by extended periods of detention. Prosecutors and prison officials began to monitor attorney/client communications without judicial authorization, and commenced a prosecution of Attorney Lynne Stewart for her statements and actions in representing a convicted terrorist, sending a clear message to other lawyers about the consequences of defending fundamental rights of suspects. The previous Freedom of Information Act presumptions were reversed, so that if any reason was articulated to withhold documents, they would not be provided. All of this was accomplished without any judicial or legislative action at all, by the mere stroke of a bureaucratic pen.
The case of military commissions established by executive order for those arrested abroad deserves attention. The original proposal for such tribunals was completely lawless. It provided for execution without appeal, without a unanimous decision of military judges, and without any right to counsel of one's choice. The most severe deficiencies in these regulations were modified after a public outcry. However the military commissions set up retained the option to use secret evidence, and with the ruling that the camps in Guantanamo Bay are outside federal courts' jurisdiction, the imminent prospect of secret military trials and summary executions there cannot be ruled out.
In the aftermath of the attacks of 9/11 the immigration authorities went into high gear. They interviewed thousands of Arabs and Muslims, including interrogation about visa status that in some cases led to deportation. They asked questions about religious and political beliefs. They discovered no significant information about terrorism whatsoever in this orgy of racial profiling. The government abused the material witness statute to detain innocent immigrants, who may have had some incidental contact with either the 9-11 hijackers or some other suspects, for prolonged periods. Most notoriously, approximately 2000 People were swiftly "disappeared" in secrecy, and the government refused to release information about them to their families or attorneys. This was the program recently upheld by the DC Circuit Court of Appeals. As a result, the government aggressively moved to "seize and freeze" the assets of numerous suspected "terrorist organizations," without any distinction between legal functions and activities these organizations may be engaged in fighting anywhere in the world, especially of course in the Middle East.
Even the issue of torture has been raised, with psychological pressure placed on family members, physical mistreatment of immigrants in custody who were never even charged with any crime, deportation to other countries that are known to practice torture systematically, and respectable academic discussions of hypothetical circumstances--such as where it might lead authorities to a "ticking bomb"--when torture could allegedly be justified. The Independent newspaper in the United Kingdom recently published a shocking investigative report on the use of what authorities call "torture lite" at the US Bagram air base in Afghanistan. Techniques such as binding prisoners in awkward and painful positions, forcing them to wear hoods, sleep deprivation, 24-hour lighting, and withholding painkillers are being systematically used at an unspecified number of secret CIA detention centers for terrorist suspects. What may be even more shocking is the fact that US officials are more or less openly bragging about it. "If you don't violate someone's human rights some of the time," one reportedly told the Independent, "you probably aren't doing your job."
In conclusion, what is happening is a comprehensive government campaign to undermine constitutional civil liberties. The government’s onslaught on political dissent and free speech; spying on groups and organizations without probable cause to believe they are engaged in any criminal activity; targeting of people because of their beliefs, speech and associations; suspending of due process; and practicing torturing, people will not be able to defend themselves. When the government is allowed the opportunity to use evidence obtained throw torture; of dubious quality; and free from challenge, the cause of liberties is not served. Those alarmed with government overreaching need to re-examine the relationship between the people and government. Thomas Jefferson wrote in the Declaration of Independence “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”