FacebookTwitterGoogle+RedditEmail

Kafka and the Patriot Act

by Paul Coggins The Texas Lawyer

I toss in an unfamiliar bed. Strange bed. Strange room. Strange town. Strange country. A stranger in a strange land, I sleep fitfully in a country not my own. The hotel door bangs open. Heavy boots shake the room as armed soldiers surround me. Angry voices. Blinding lights. Paralyzing panic. Groggy, I am slow to react. Too slow. Rough hands jerk me off the bed and onto the hard floor. A boot presses on my spine and another on my neck. Face down, I am pinned to the floor. My hands are cuffed behind my back, so tightly that my arm sockets burn with pain.

A stifled scream corks my throat. After the scream finally breaks loose, I slip into my native tongue, not their language. All the while the soldiers shout at me, but I only understand every 10th word. Though I shout back, they apparently don’t understand me. I have been thrust into a Kafkaesque nightmare. I have read “Kafka,” but I am certain the soldiers have not.

Under the cover of night, I am whisked to a solitary cell in a maximum-security prison. My pleas for a phone call are ignored. I have not been allowed to contact family or friends. I’m terrified that my wife and daughter are worried about me. My requests to see a lawyer also fall on deaf ears.

The only people I see are my captors. Every day they haul me into an interrogation room to grill me with questions. Surrounded by stone-faced soldiers and unsympathetic translators, I hear the same questions day after day. Same hostile questions. Same open skepticism. Same life-or-death threats.

The days stretch into a sameness like a living death. My claustrophobic cell shrinks to the dimensions of a coffin. No one on the outside knows where I am or if I’m alive. Down to a flicker of hope, I am spirited in the night to a new prison, hundreds of miles, maybe thousands of miles from my old cell.

New prison. Same questions. Same threats. Same loneliness. Same living death. The first transfer presages a second — and a third. I feel like the pea in a shell game. I picture my wife, maybe a lawyer and my friends pounding on a prison door, only to discover that I had been whisked away, hidden under another shell. The captors stay a step ahead.

Disoriented by frequent moves and forced isolation, I forget where I am, what country is holding me. Am I a political prisoner in South America? Eastern Europe? Southeast Asia? Have I joined the swelling ranks of “los desaparecidos,” the disappeared ones?

But my name isn’t Paul, and I’m not in South America, Eastern Europe or Southeast Asia. My name could be Pablo or Nikita or Omar, and I am a prisoner in the United States. I have been branded a terrorist suspect, though the basis for the suspicion may be vague, flimsy or not spelled out at all.

Forget the books and movies. There is no phone call from prison, no lawyer in the visiting room and no judge watching over my case. There are only captors, questions and solitary cells.

SIMPLISTIC ANALYSIS

In the wake of Sept. 11, 2001, the United States joined the ranks of countries that allow the police to pick up noncitizens (if certified by the U.S. attorney general as terrorist suspects) and detain them almost indefinitely with virtually no judicial oversight. Even the expansive detention powers granted by Congress last month fell short of Attorney General John Ashcroft’s bid for the right to detain noncitizen terrorist suspects indefinitely with no judicial oversight.

While Congress should be commended for rejecting Ashcroft’s radical proposal, Congress erred by shifting the burden of proving the need for greater detention powers and by undervaluing judicial oversight as a deterrent to abuse of those powers. Granted, elected officials tremble at the prospect of being branded as soft on terrorists (more toxic than past charges of being soft on communists or drugs), but was it too much for Congress to force the administration to prove a need for expanded detention powers to battle terrorism?

Instead of careful deliberation of the long-term implications of removing an important check on law enforcement, the simplistic analysis was that foreigners had committed horrific crimes and that noncitizens have fewer rights than citizens. That noncitizens enjoy fewer rights than citizens should have been the beginning of the analysis, not its end. Before we weaken judicial oversight of police, law enforcement should bear a heavy burden of proof that judges are impeding their terrorism probes.

The executive branch made no such showing here. Indeed, in the aftermath of Sept. 11, federal courts have issued hundreds of material witness warrants for citizens and noncitizens. There is simply no evidence that the courts, by retaining oversight over the detention of citizens and noncitizens (including those detained in a terrorism investigation), are thwarting law enforcement in any way.

More than 1,100 people have been detained by law enforcement in connection with the Sept. 11 investigation — some for hours, some for days, some for weeks, some for who knows how long — and the toll climbs daily. Disturbing stories are surfacing that some detainees have been cut off from phones, family, friends and lawyers. Some apparently are being shuttled from prison to prison.

Except for aggregate (and unreliable) numbers, the Department of Justice does not release information about the detainees. Thus, there are more than 1,100 case studies bearing directly on the scope of the present detention powers — case studies that should have been carefully reviewed by Congress before it granted law enforcement greater detention powers.

The vast majority of police detentions are undertaken in good faith and pursuant to law, but cops occasionally overstep the bounds. In a system of checks and balances, the presumption should be that, when the police obtain greater powers, judicial oversight is tightened. Only on the most compelling showing of necessity (with the burden falling squarely on law enforcement) should the police gain greater powers by relaxing or removing judicial oversight.

It’s easy, too easy, to take rights from noncitizens. After all, it’s not our problem, right? It’s not our problem unless, of course, we happen to be sleeping in another country, not our own. And if we close our eyes too tightly and too long, we may fall asleep in the United States and wake up in another country, not our own.

Paul Coggins is a principal in the Dallas office of Fish & Richardson, a national intellectual property, complex litigation and technology firm. He is a former U.S. Attorney for the Northern District of Texas.

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

February 20, 2017
Bruce E. Levine
Humiliation Porn: Trump’s Gift to His Faithful…and Now the Blowback
Melvin Goodman
“Wag the Dog,” Revisited
Robert Hunziker
Fukushima: a Lurking Global Catastrophe?
David Smith-Ferri
Resistance and Resolve in Russia: Memorial HRC
Kenneth Surin
Global India?
Norman Pollack
Fascistization Crashing Down: Driving the Cleaver into Social Welfare
Patrick Cockburn
Trump v. the Media: a Fight to the Death
Susan Babbitt
Shooting Arrows at Heaven: Why is There Debate About Battle Imagery in Health?
Matt Peppe
New York Times Openly Promotes Formal Apartheid Regime By Israel
David Swanson
Understanding Robert E. Lee Supporters
Michael Brenner
The Narcissism of Donald Trump
Martin Billheimer
Capital of Pain
Thomas Knapp
Florida’s Shenanigans Make a Great Case for (Re-)Separation of Ballot and State
Jordan Flaherty
Best Films of 2016: Black Excellence Versus White Mediocrity
Weekend Edition
February 17, 2017
Friday - Sunday
David Price
Rogue Elephant Rising: The CIA as Kingslayer
Matthew Stevenson
Is Trump the Worst President Ever?
Jeffrey St. Clair
Roaming Charges: Tinker, Tailor, Soldier, Flynn?
John Wight
Brexit and Trump: Why Right is Not the New Left
Diana Johnstone
France: Another Ghastly Presidential Election Campaign; the Deep State Rises to the Surface
Neve Gordon
Trump’s One-State Option
Roger Harris
Emperor Trump Has No Clothes: Time to Organize!
Joan Roelofs
What Else is Wrong with Globalization
Andrew Levine
Why Trump’s Muslim Travel Ban?
Mike Whitney
Blood in the Water: the Trump Revolution Ends in a Whimper
Vijay Prashad
Trump, Turmoil and Resistance
Ron Jacobs
U.S. Imperial War Personified
David Swanson
Can the Climate Survive Adherence to War and Partisanship?
Andre Vltchek
Governor of Jakarta: Get Re-elected or Die!
Patrick Cockburn
The Coming Destruction of Mosul
Norman Pollack
Self-Devouring Reaction: Governmental Impasse
Steve Horn
What Do a Louisiana Pipeline Explosion and Dakota Access Pipeline Have in Common? Phillips 66
Brian Saady
Why Corporations are Too Big to Jail in the Drug War
Graham Peebles
Ethiopia: Peaceful Protest to Armed Uprising
Luke Meyer
The Case of Tony: Inside a Lifer Hearing
Binoy Kampmark
Adolf, The Donald and History
Robert Koehler
The Great American Awakening
Murray Dobbin
Canadians at Odds With Their Government on Israel
Fariborz Saremi
A Whole New World?
Joyce Nelson
Japan’s Abe, Trump & Illegal Leaks
Christopher Brauchli
Trump 1, Tillerson 0
Yves Engler
Is This Hate Speech?
Dan Bacher
Trump Administration Exempts Three CA Oil Fields From Water Protection Rule at Jerry Brown’s Request
Richard Klin
Solid Gold
Melissa Garriga
Anti-Abortion and Anti-Fascist Movements: More in Common Than Meets the Eye
Thomas Knapp
The Absurd Consequences of a “Right to Privacy”
FacebookTwitterGoogle+RedditEmail