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CounterPunch
October
19, 2002
Anti-Terrorism:
a History of Abuses
by ELAINE CASSELL
Terrorism and the Constitution: Sacrificing Civil
Liberties in the Name of National Security, David Cole and James X. Dempsey, (New Press
2002)
In 1999, Georgetown University Law professor David
Cole and the Center for Democracy and Technology's James Dempsey
published the first edition of their work Terrorism and the Constitution:
Sacrificing Civil Liberties in the Name of National Security.
It detailed the enactment of the 1996 Antiterrorism and Effective
Death Penalty Act--which, at the time, was famous not so much
for its terrorism provision, but rather for its draconian pro-death
penalty and anti-habeas corpus provisions.
This year brings the book's second edition--updated
to account for recent developments in the "war on terrorism."
The authors detail the Clinton administration's use of the Antiterrorism
Act and examine the enactment and scope of the USA PATRIOT Act--a
hastily enacted, post-9/11 law that gives the government wide-sweeping
surveillance powers over American citizens.
Throughout Terrorism and the Constitution,
Cole and Dempsey diverge from popular opinion by insisting that
civil liberties, far from being a threat to national security,
are the essence of America. What are we "fighting"
for in this war on terrorism, they ask, if not to protect our
way of life--which has personal liberty at its very core?
The FBI and
Civil Liberties, Including Free Speech Rights: A Dismal Record
The first section of the book chronicles
the abuses that have happened in the past when law enforcement
arrogated too much power to itself. Over the past 75 years, the
authors explain, we have see FBI power-grabbing, overreaching,
illegality, and denial. Attempted reforms have only led to retrenchment.
Even Americans involved in human rights groups such as Amnesty
International have been surveillance targets. And the trend of
the expansion of power has been capped off by recent, unprecedented
secret activities targeting both American citizens and immigrants.
As the authors discuss, even before there
was an "antiterrorism" statute, in the 1980's, the
FBI conducted surveillance of Americans involved with activists
who supported rebel groups in El Salvador, and who were opposed
to American aid to the El Salvadoran military. These were people
whose only crimes were to have attended rallies, signed petitions,
and possessed reading materials associated with the Committee
in Solidarity with People of El Salvador (CISPES), whose activities
were variously described by the FBI as "terrorist"
or "leftist."
These investigations did not gain public
prominence like the anti-communist and anti-war "sympathizer"
activities of the 1950's and 1960's. They went on for more than
two years, until they were finally halted by Congressional hearings
and the exposure of documents obtained under Freedom of Information
Act requests filed by the Center for Constitutional Rights (CCR).
The authors see these investigations
as laying the foundation for the Antiterrorism and PATRIOT acts.
Congress essentially denounced the scope of the anti-CISPES investigations
and in 1994 enacted a law protecting First Amendment activities
from FBI investigations. However, that law was repealed in the
Antiterrorism Act of 1996--practically inviting history to repeat
itself.
The 1996 Antiterrorism
Act
The Antiterrorism Act of 1996 was a response
to the 1993 bombing of the World Trade Center and the 1995 bombing
of the federal building in Oklahoma City. Cole and Dempsey describe
the Act as a massive assault on First Amendment rights of speech,
assembly, and petition, and a deeper entrenchment of the "guilt
by association" tradition active in the FBI.
As noted above, the Act removed barriers
to FBI investigation of activities protected under the First
Amendment. It also removed some restrictions on the famous FISA
(Foreign Intelligence Surveillance Act) Court--where federal
judges sit in secret to consider, and mostly approve, Justice
Department requests for widespread surveillance of "terrorists,"
including pen registers and "trap-and-trace" surveillance,
methods that can capture income and outgoing telephone calls.
The law also opened the door for the Immigration and Naturalization
Service to deport mostly Muslim citizens. The deportations were
based on largely secret evidence, and no overt acts needed to
be alleged.
The authors tell the stories of several
individuals who were targeted under the law, as a result of racial
and ethnic profiling. More than two dozen Muslim immigrants were
detained and then deported, typically for visa or immigration
regulation violations. Most were never charged with any crime.
They were, in the government's eyes, "guilty" of being
associated with people or organizations labeled as "terrorist."
In 1999, the Supreme Court denied judicial
review of the deportations--remember, the 1996 Act also curtailed
judicial review--in Reno v. American-Arab Anti-Discrimination
Committee. Its decision is an ominous precedent for those who
hope the Court will intervene in our current civil liberties
crisis. Remember, this all occurred before 9/11.
The Post-9/11
USA PATRIOT Act
Then came 9/11--and the USA PATRIOT Act.
The Act expanded "guilt by association" to the point
that the most tenuous connection to an organization labeled by
the Secretary of State as a "terrorist" organization
can now lead to the charge of conspiring, or taking action to,
give "material support" to "aid and abet"
terrorism.
Was the expansion necessary? Sheik Abdel
Rahman and others implicated in the 1993 World Trade Center attack
and acts of violence on American embassies, as well as Timothy
McVeigh and Terry Nichols, were tried and convicted before the
1996 and 2001 laws were enacted.
Was the expansion abusive? Consider recent
indictments of defendants in Buffalo and Portland--which suggest
that it is sufficient for the defendant simply to have been in
the presence of people labeled as terrorist sympathizers, or
to have given money to a non-profit organization that has (according
to our government) mixed humanitarian and political activities
associated with "terrorism." Consider, too, the indictment
of Lynne Stewart, which I have discussed in a prior column, for
what amounts to the "crime" of zealously representing
a convicted terrorist.
The First Amendment consequences are
dire, as Cole and Dempsey point out--given that there is no specific
definition of "material support," no apparent intent
requirement, and no ability on the part of defendants to question
an organization's appearance on the list.
In light of this vagueness, most Muslim
citizens and immigrants may reasonably believe that the course
safest for their families is simply to avoid Muslim associations
and organizations, period. And that is the tragedy: legitimate
First Amendment activities have been criminalized, and even worse,
criminalized so vaguely that the safest course would be to avoid
exercising free speech rights at all. Muslims should be able
to attend their mosques without fear that they may be jailed
because they happen to pray next to someone under government
suspicion.
No Safe Harbor
in the Courts
Terrorism and the Constitution cautions
against counting on the courts to protect our civil liberties
and recounts the judiciary's dismal record in protecting civil
liberties since the 1996 Antiterrorism Act.
Since September 11, 2001, hundreds of
immigrants have been detained and, perhaps deported, but in secret.
We don't know their names or where they are held. The Sixth Circuit
Court of Appeals upheld a district court order requiring an open
trial for a detained immigrant, but it is the only Appeals court
so far that has rejected the government's insistence on secret
trials.
In a blow to civil libertarians, this
week the Third Circuit overruled the New Jersey district court's
ruling that the Justice Department had to disclose the names
of individuals detained in its jurisdiction.
Although we know the names of several
detained U.S. citizens, such as Jose Padilla and Yaser Hamdi,
they are being held incommunicado and denied access to an attorney.
Any day now, the Fourth Circuit (which has the dubious distinction
of being more conservative in its politics than the Supreme Court)
will decide whether to overturn U.S. District Judge Robert Doumar's
ruling that Hamdi, charged as an unlawful combatant and held
in a Norfolk, Virginia U.S. Navy brig, has the right to be visited
by the Federal Public Defender.
It would be blind optimism to expect
the appeals court to agree with the feisty Judge Doumar, who
expressed outrage that an American could be held forever, without
being charged, without representation, and dealt with as the
government pleased with no judicial review whatsoever, based
solely upon the affidavit of a Pentagon bureaucrat.
And there is surely no reason to think
that the Supreme Court will rule against the government. Justice
Sandra Day O'Connor said shortly after the attacks of September
11 that Americans would have to learn to do with less civil liberties;
Chief Justice William Rehnquist has written a book about the
importance of judicial deference to the executive branch in wartime.
We can expect a majority of this court
to agree with Attorney General Ashcroft who, in September, responded
to an interviewer's question about incursions into individual
freedoms with a dismissive, "We're not sacrificing civil
liberties, we're securing civil liberties."
But liberties are to be exercised, not
locked away or shelved only to be brought out of storage when
the political climate changes. Terrorism and the Constitution
is a call to Americans to fight for civil liberties now, or prepare
to lose them forever.
Elaine Cassel
practices law in Virginia and teaches law and psychology. She
is the co-author of Criminal Behavior.
This article was originally published
by FindLaw Writ.
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