Le Monde diplomatique, November 2001

THE FRAGILE SUPERPOWER US: no longer the land of the free


In the near-panic in the US after the terrorist attacks, there were arbitrary arrests, detentions, and new legislation introduced which will easily be misused against radicals and dissidents, by MICHAEL RATNER *
I live a few blocks from the World Trade Centre. I saw the explosion in the North Tower and watched in shock as the second plane flew 200 yards over my head and crashed into the South Tower. I saw the buildings collapse. Members of my family barely escaped. The ruins still smoulder like the vast funeral pyre they have become, and all downtown is a smoke-filled memorial to the thousands killed. For weeks missing posters covered the walls of the city; candles were on every corner. A young student in my child's school lost her father; my child's soccer coach was killed.

All of us want to protect our children, arrest and punish the terrorists, eliminate the terrorist network and prevent future attacks. But gradually our freedoms and fundamental rights are being eroded by a new war being fought on different fronts: financial, legal, political, psychological and diplomatic. Senator Trent Lott, the Republican leader, declared: "When you are at war, civil liberties are treated differently". Even Sandra Day O'Connor, a United States Supreme Court judge, said: "we're likely to experience more restrictions on personal freedom than has ever been the case in our country" (1).

The government has made a tripartite plan to eradicate terrorism in the US: President George W Bush has created a new cabinet-level Homeland Defence Office; thousands are under arrest or being interrogated; and Congress is enacting new laws that will grant the Federal Bureau of Investigation (FBI) and other intelligence agencies vast new powers to wiretap and spy on people in the US.

The Homeland Defence Office, set up on 20 September, is to gather intelligence, coordinate anti-terrorism efforts and take precautions to prevent and respond to terrorism. It is not yet known how it will function, but it will probably try to centralise the powers of the intelligence and law enforcement agencies. People are worried that it will become a super spy agency and that the military will play a role in domestic law enforcement.

Attorney General John Ashcroft has introduced new legislation focused on non-citizens (2), whether permanent residents, students, temporary workers or tourists. Normally an alien can only be held for 48 hours before being charged. The new regulation allows arrested aliens to be held without charges for a "reasonable time", presumably months or longer. The FBI has carried out massive detentions and investigations of individuals suspected of terrorist connections. Almost all are non-citizens of Middle Eastern descent, and more than 700 have been arrested (3). Many were held for days without access to lawyers or knowledge of the charges; most are still in detention.

Few, if any, have been proved to have actual connection with the attacks people were even arrested just for being from Pakistan. There are stories of mistreatment. For example, on 18 September a 20-year-old Pakistani college student boarded a bus to return to school. Immigration authorities raided the bus and detained the student for a visa violation. Once in detention, he was severely beaten by three fellow white inmates who threatened to kill him.

The FBI is also now investigating groups it claims are linked to terrorism among them pacifist groups like the US chapter of Women in Black, which holds vigils to protest violence in Israel and the Palestinian Territories. The FBI has threatened to force members either to talk about the group or go to jail. As one member 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" (4). Unfortunately the FBI does not make that distinction. It has shown throughout its history that, over and above pursuing criminals, it sees itself as the guardian of the official ideology. And it has targeted all who have at one time or another opposed state policies civic rights activists, Vietnam war protestors, cultural dissidents.

Congress has passed sweeping new anti-terrorist legislation aimed at both aliens and citizens (5). The proposed legislation met more opposition than expected in these difficult times. A National Coalition to Protect Political Freedom, made up from over 120 groups from left to right, opposed the worst aspects of the proposed new law. They succeeded in making minor modifications, but the most troubling provisions remain.

Detention of suspects

Anti-terrorist laws passed after the 1995 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 lawyer could see. The proposed legislation makes things even worse for aliens. 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 just given humanitarian assistance to organisations not favoured by the US. Once certified in this way, an alien could be imprisoned indefinitely, with no real opportunity for court challenge. Until now such "preventive detention" was held to be flatly unconstitutional (6).

Current law permits the deportation of aliens who support terrorist activity; whereas the proposed law would make aliens deportable for almost any association with a "terrorist organisation". Although this change may seem plausible on the surface, it represents a dangerous erosion of Americans' constitutionally protected rights of association. "Terrorist organisation" is a broad and open-ended term that could include groups such as the Irish Republican Army (IRA) or the African National Congress (ANC), or civic groups that have engaged in any violent activity, such as Greenpeace. An alien who gives no more than medical or humanitarian aid to similar groups, or just supports their political message in a material way, could be jailed indefinitely.

A key element in the law is the expansion of wiretapping

In the US this is permitted, but generally only when there is cause to believe a crime has been committed. A judge must sign a special order that limits time periods and specifies the telephone numbers tapped and the type of conversations that can be overheard (7).

In 1978 an exception was made to these requirements, permitting wiretapping to gather intelligence information about foreign governments and terrorist organisations (8). A secret court was established that could approve such wiretaps without requiring the government to show evidence of criminal conduct. It is made up of federal judges nominated for life, selected by the department of justice to sit behind closed doors on espionage cases too. Eventually, the secret court's jurisdiction was expanded so that the FBI could secretly search homes and offices, obtain bank records etc. The secret court is little more than a rubber stamp for wiretapping requests by the spy agencies. It has authorised over 10,000 wiretaps in its 22 years (9).

Under the new law, the same court will have the power to authorise wiretaps and secret searches of homes in criminal cases not just to gather foreign intelligence. The FBI will be able to wiretap individuals and organisations without meeting the stringent requirements of the constitution. The law will authorise 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 email will be allowed, even before the recipient opens it (10). Thousands of exchanges will be listened to or read that have nothing to do with the suspect or any crime.

The new legislation contain expands investigative and prosecutorial power, including wider use of undercover agents to infiltrate organisations, 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 (11). Another provision of the bill makes it a crime for a person to fail to notify the FBI if he has "reasonable grounds to believe" that someone is about to commit a terrorist offence. 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.

Officials at the Senate judicial committee and the Department of Justice are also looking at the possibility of creating a military tribunal to judge those involved in terrorist attacks behind closed doors, with limited access to defence. Overall, the new legislation is 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 free.

'With us or against us'

There is also censorship. White House press secretary Ari Fleischer warned that "people have to watch what they say and what they do" (12). As the government continues to repeat, "you are either with us or against us". Questioning the practices and policies of the US is considered unpatriotic. Dissenters from the war or those who want to examine underlying causes for the attack are given almost no voice; if they dare to speak they are roundly castigated. The idea seems to be that we do not criticise our nation at war and that to examine causes is to excuse the terrorists.

Susan Sontag, the writer, disputed the assumption that the 11 September attacks were an assault on "civilization" or "liberty", and said they were attacks on "the world's self-proclaimed superpower, undertaken as a consequence of specific American alliances and actions". She was furiously attacked in the media as part of the "hate-America crowd" and as "morally obtuse" (13). Almost anyone who dares examine the reasons for the hatred felt by many in the Middle East toward the US will be excoriated (14). The New York tabloid The Daily News described those who sought to look at the roots of the terror as "60's throwbacks, radical Muslims, far-far-left fringe and just plain wackdoodles the enemy might love".

There is now self-censorship by the media and even liberal organisations. Often it is a matter of not airing alternative views one show actually cut off the microphone in mid-sentence of a guest arguing for a legal not a military response. A radio station apparently fired a well-known journalist for broadcasting an interview with the one member of Congress, Californian Democrat Barbara Lee, who voted against the war. TV stations have rarely covered the protests against the war and the views of those opposed to the war are demeaned. A New York Times headline about a peace demonstration was titled "Protestors Urge Peace with Terrorists" (15), despite calls at the demonstration for bringing the terrorists to justice.

Almost no criticism of US leaders is permitted, even when unrelated to the war. Two major environmental organisations, the Sierra Club and the National Resources Defence Council, pulled ads criticising Bush's environmental policies. One of them even removed comments from its website criticising the policies of Mayor Rudolph Giuliani of New York and replaced them with a message of support for him. A group of news organisation including the New York Times decided not to publish the results of its recount of the votes in the disputed presidential election in Florida, believing it would undermine Bush's legitimacy.

Government censorship has become more overt

For a short while Bush said he was going to curtail military and intelligence briefings to Congress. This would have cut the Congress out of the war-making process and left all decisions in the hands of the president a dangerous and unconstitutional act. Bush retracted within a few days, but it is not known whether he is giving Congress a full report. Equally, the press receives very little information; it gets general briefings on military affairs but has not been permitted to accompany the troops.

The most remarkable censorship was the government's request that the five major TV networks should not air in full the pre-recorded statements of Osama bin Laden and his associates. It claimed it did not want Bin Laden's propaganda messages about killing Americans widely broadcast, and that the statements might contain secret codes. Neither reason made sense: Bin Laden's statements are already widely available around the world; furthermore, airing them in the US would be more likely to build support for the war among Americans, rather than undermine it. As for secret messages, the government admits that none have been found. But the TV networks agreed not to run the tapes.

The US has always prided itself on its constitutional protection of free speech and a free press, a freedom considered especially important at times of war when vigorous public debate is essential to a democracy. It is not uncommon for governments, in the US and elsewhere, to reach for draconian law enforcement solutions in times of war or national crisis. But history teaches that times of hysteria, war and instability are not the times to rush into new laws that curtail freedoms and grant more authority to the government and its intelligence and law enforcement agencies.

The US government thinks of the war against terrorism as a permanent war, a war without boundaries. The danger is that it may also become a permanent war against freedoms.

* Lawyer, professor at Columbia University, New York, and vice-president of the Centre for Constitutional Rights, which defends civil and constitutional rights and is based in New York.

(1) See Washington Post, 14 September 2001 and New York Times, 29 September 2001.
(2) The legal term for non-citizens under US law, whether they are legal permanent residents, students or tourists is "aliens." In this article the two terms will be used interchangeably.
(3) New York Times, 14 October 2001.
(4) Report by Ronnie Gilbert, FBI Investigation of Women in Black, 4 October 2001.
(5) The bill passed in the Senate is entitled the Uniting and Strengthening America Act (the USA Act); a similar bill passed in the House of Representatives is entitled the Patriot Act. After differences in the two bills are reconciled, the final version will go to President Bush for his approval.
(6) Prior to this proposed law a suspect could be held if he was a danger to the community or a risk of flight and that could only occur after a hearing before the court.
(7) These limitations are based on the Fourth Amendment to the US constitution, which prohibits searches and seizures without judicial approval; a wiretap is considered a seizure of one's conversations.
(8) Foreign Intelligence Surveillance Act (1978).
(9) Patric S Poole, Secret Court: the Foreign Intelligence Surveillance Court.
(10) The new law will permit wider use of systems such as Carnivore that can monitor all of the email that passes through an internet service provider and can store the contents and/or addresses of the sender and recipient.
(11) The only question left undecided is for how long the government will have these powers. There is a fight over a proposed "sunset" provision under which the law would automatically expire in five years. This is opposed by the administration, but they may be forced to compromise. However, if prior experience is a guide, even when the laws expire, they are generally renewed; such a provision offers little future protection.
(12) Los Angeles Times, 2 October 2001.
(13) Celistine Bohlen in the New York Times, 29 September 2001.
(14) Recently Mayor Giuliani refused to accept a $10m cheque for World Trade Centre relief because the Saudi prince who gave the donation suggested that "the government of the United States should re-examine its policies towards the Palestinian cause", New York Times, 12 October 2001.
(15) The Daily News, 5 October 2001.

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