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Pre-empting the Bill of Rights The Other War, One Year Later

The Other War, One Year Later

by ELAINE CASSEL

A year ago, I started writing about the Bush Administration’s war on civil liberties. Having just completed a book on the topic (The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, Lawrence Hill Books, September 2004), I am mentally and emotionally exhausted from keeping up with the bad news on many fronts. And, for the past month, engrossed in the tedious copy-editing and other end-of-stage publication details, I have been unable to write about developments in this war. But I have not stopped keeping up with the news.

The reports of torture and abuse at Abu Ghraib prison should come as no surprise to one who has kept up with the shenanigans of the government whose motto could be, "no law but our own." Indeed, mandates (not mere approval or benign ignorance) for torture in order to gain information (about what has not been made clear) are the direct result of an administration that, quite literally, will trample over any law, no matter how sacred. Geneva Conventions, Bill of Rights, what’s the difference? The shocking attempts to minimize such horrors in a country the Bush cronies are supposedly liberating should bring to mind Nazi occupations. Oh, I realize that what Bush is doing in Iraq is a far cry from loading Jews in train cars, but hey, the occupation is in its early stages.

Speaking of loading people in train cars, the Washington Post last week finally reported on imprisonment abroad of thousands of people, American citizens and others, who are being held by the CIA in what is politely known as a "rendition." These "detainees" are in no way protected by any law whatsoever. I have been in touch with one family whose son is imprisoned in Saudi Arabia. He is American citizen, a resident of Virginia, and a student at a Saudi university. Last June, he was seized by Saudi law enforcement as he prepared to come home for the summer. Though the U.S. government denies publicly even knowing that he is there, sources tell me that he was held initially because he "knew" some of the men charged as the Alexandria 11, those notorious Muslim men about to be sentenced for 50 to 100 years for playing paintball, supposedly in preparation for "jihad." The Saudis deny that they have the man. Contacts from him to his family confirm that he is indeed imprisoned there. American lawyers are helpless to do anything for him, and no Saudi lawyer dare even attempt to visit him (so I am told by a Saudi lawyer).

Well, how about the fact that thousands of Americans are disappearing like this, and being held out of reach of family, attorneys, or courts? Does that make you think a little harder about blowing this off as not Nazi-esque? Maybe you ought to keep this in mind as you make summer travel plans, especially if they take you across the Atlantic. Last week, the European Union announced that the airlines of EU countries would share complete passenger information with American law enforcement prior to airline departures. The government (or one of its tens of thousands of contractors who work without complete immunity from federal law or oversight if they are contracted by the Department of Homeland Security) will scan the lists and take action against any people whose names are the same or similar to those on its "terrorist" watch list. Note that I said the names are the same or similar. Not that the identities are. Big difference, don’t you think?

What kind of action is taken against those whose names are the same or similar? Either detentions abroad (from hours to days) to detentions in the US upon landing (federal agents board planes, handcuff you, and take you away for interrogation, denying you a call to your family, let alone a lawyer). If you are very, very unlucky, you, too, could be "rendered" abroad, taken from say an airport in Paris to Syria (yes, Syria is one of the most popular countries for sending our own or other citizens for torture and interrogation) where you won’t be heard from again unless you are very, very lucky.

What I have been cataloging here are cases when there will be no intervention by any court whatsoever. There cannot be. But the war on civil liberties at home has, finally, some courts taking notice. Actually, lately a judge or two has acted like a judge.

What looked like a slam-dunk win for the government’s prosecution of Zacarias Moussaoui turned sour last week when the 4th Circuit Court of Appeals in Richmond that handed Alexandria, Virginia prosecutors such a big win (the appellate court overruled U.S. District Judge Leonie Brinkema who said Moussaoui should either be allowed to question al-Qaeda witnesses or he could not face the death penalty) has called the chief federal prosecutors to a special hearing in Richmond. Seems the prosecutors in the Moussaoui case told the court that they were not involved in interrogating these al-Qaeda witnesses that Moussaoui and his lawyers wanted access to-that’s why the court said it was alright that Moussaoui’s lawyers could not examine them. Supposedly, the witnesses’ "testimony" was gathered by "impartial sources" (as impartial as CIA interrogators who torture people for information can be). But when Moussaoui’s lawyers produced evidence that the prosecutors were boasting that they were involved with the witnesses in developing other cases, the 4th Circuit, surely the most faithful handmaidens of Bush, were upset. Ashcroft says that his lawyers "look forward" to clarifying the issue with the judges. Maybe, just maybe, these prosecutors have been court lying one time too many.

And in New York City, a federal judge told Ashcroft’s soldiers that its interpretation that the Patriot Act does not allow the ACLU to publicize anything about its case against the government, including that it even has such a case, is a bit too-far fetched even for a judge that also wants to give the President his "due" in fighting the war on terror. Several skirmishes in the past week ended up with the ACLU being able to let some information trickle down to the public. Ironically, the substance of the litigation is the power of the government under the Patriot Act to secretly gain information about you and me from a host of sources-information-gathering that we can never be privy to-not ever.

Speaking of the Patriot Act, there has been some lukewarm interest in scaling back its most egregious provisions (like the one attacked by the ACLU suit). Bush made it clear he wants all of the provisions made permanent that were set to expire in 2005. But four Republicans, including Sen. Butch Otter (R-Idaho) and Sen. Larry Craig (R-Idaho) have sponsored legislation that would place greater restrictions on roving wire taps, require law-enforcement officials to notify the targets of "sneak and peek" searches within seven days after a search, restrict the use of nationwide search warrants and amend the section of the Patriot Act that allow for secret searches of library and bookstore records. Of course, just how these errant Republicans will hold firm to their convictions when the White House puts the heat on them remains to be seen. But at least, there is a slight break in the ranks that have let an administration dead-set on running the country-indeed, the world-by its own rules rum amok.

Looking ahead to the immediate future, the Supreme Court will be handing down opinions within the next month that will determine the future of our liberty-up to a point. For if the Court rules against the administration in the cases dealing with the prisoners at Guantanamo Bay and the American prisoners held without due-process, Jose Padilla and Yaser Hamdi, do you really expect Bush and Rumsfeld to obey a Supreme Court order? I certainly don’t. People suggest that a constitutional crisis will result. I don’t buy that either. A crisis means people care, people revolt. Did we object when the justices took over the Florida 2000 presidential election and thus put its man in the Oval Office? Oh, there was some ranting and raving but it all died down. If Bush disobeys the Supreme Court, that would be an impeachable offense. But would this Congress impeach? Not hardly.

Would it hurt his reelection chances if Bush thumbs his nose at the court? I doubt that-for he has enough hard line supporters who buy his "my way or no way" and "no law but my law" approach to carry the vote. After all, arrogance and flaunting the law are, essentially, an American trait. Think wild West, slaughtering Indians, slaughtering Buffalos, lynchings, etc. When Bush expressed his pseudo-outrage at the Abu Ghraib abuses, saying this is not representative of America, whom was he kidding? America is, at its core, violent, abusive, arrogant, and, when it chooses to be (and no one is big enough to stop us) lawless. And if admiration for the President’s arrogance and flagrant violation of law doesn’t carry election day, then Diebold machines will kick in and do their job. Diebold "we promise to deliver the vote for Bush" are the machines most Americans will be using to cast their "preference" for President (please don’t call it a vote).

So, a year after I started writing about this "other war," where are we? Some Americans are a little more aware of what our government is doing to us, some congressmen and women are a little concerned, and a few judges are taking names and making notes. Would anything be different under John Kerry’s rule? I doubt it. I tend to agree with Nader (though I do not support Nader)that Kerry is, in terms of Bush and civil liberties, a distinction without much of a difference. I think he or anyone else that replaces Bush (someday) will appreciate the precedence of the Bush years that sanctioned an adminisration making up the rules as it goes along and ignoring the courts and the Congress. Who wouldn’t want that power? The Bill of Rights didn’t make it into the Constitution (it was later ratified as the first ten amendments), leading Virginian George Mason to leave the constitutional convention in disgust. He saw that the founding fathers wanted power for themselves, not power to the people.

The Bill of Rights-or any other law-only has meaning if it is obeyed and enforced. Bush had demonstrated that one can trample on the Bill of Rights with impunity. That is not a trend that we will see reversed in our lifetimes.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. Her book, The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, will be published by Lawrence Hill this summer. She can be reached at: ecassel1@cox.net