Police state, are we there yet?

To: Retort

Secret Military Tribunals, Mass Arrests and Disappearances, Wiretapping & 
Torture

Michael Ratner

November 20, 2001

Michael Ratner is an international human rights lawyer and vice-president 
of the Center for Constitutional Rights. He has brought numerous suits 
against the illegal use of military force by the United States Government 
and specializes in opposing government spying. Mr. Ratner teaches 
International Human Rights Litigation at Columbia Law School, and is the 
author of The Pinochet Papers, International Human Rights Litigation in US 
Courts, and Che Guevara and the FBI.

I live a few blocks from the World Trade Center. In New York, we are still 
mourning the loss of so many after the attacks on our city. We want to 
arrest and punish the terrorists, eliminate the terrorist network and 
prevent future attacks. But the government's declared war on terrorism, and 
many of the anti-terrorism measures, include a curtailment of freedom and 
constitutional rights that have many of us very worried. I wrote the above 
paragraph and much of the article that follows toward the end of October. 
At that time, the repressive machinery then being put into effect was 
already terrifying. Since that time the situation has gotten unimaginably 
worse; rights that we thought embedded in the constitution and protected by 
international law are in serious jeopardy or have already been eliminated. 
It is no exaggeration to say we are moving toward a police state. In this 
atmosphere, we should take nothing for granted. We will not be protected, 
nor will the courts, the congress, or the many liberals who are gleefully 
jumping on the bandwagon of repression guarantee our rights. We have no 
choice but too make our voices be heard; it is time to stand and be counted 
on the side of justice and against the antediluvian forces that have much 
of our country in a stranglehold. The domestic consequences of the war on 
terrorism include massive arrests and interrogation of immigrants, the 
possible use of torture to obtain information, the creation of a special 
new cabinet office of Homeland Security and the passage of legislation 
granting intelligence and law enforcement agencies much broader powers to 
intrude into the private lives of Americans. Recent new initiatives -- the 
wiretapping of attorney-client conversations and military commissions to 
try suspected terrorists -- undermine core constitutional protections and 
are reminiscent of inquisitorial practices.Although it is not discussed in 
this article, the war on terrorism also means pervasive government and 
media censorship of information, the silencing of dissent, and widespread 
ethnic and religious profiling of Muslims, Arabs and Asian people. It means 
creating a climate of fear where one suspects one's neighbors and people 
are afraid to speak out.The claimed necessity for this war at home is 
problematic. The legislation and other governmental actions are premised on 
the belief that the intelligence agencies failed to stop the September 11th 
attack because they lacked the spying capability to find and arrest the 
conspirators. Yet, neither the government nor the agencies have 
demonstrated that this is the reason. This war at home gives Americans a 
false sense of security, allowing us to believe that tighter borders, 
vastly empowered intelligence agencies, and increased surveillance will 
stop terrorism. The United States is not yet a police state. However, even 
a police state could not stop terrorists intent on doing us harm. In 
addition, the fantasy of Fortress America keeps us from examining the root 
causes of terrorism, and the consequences of decades of American foreign 
policy in the Middle East, Afghanistan and elsewhere. Unless some of the 
grievances against the United States are studied and addressed, terrorism 
will continue.

MILITARY COMMISSIONS: THE PERUVIAN OPTION
On November 13, President Bush signed an executive order establishing 
military commissions or tribunals to try suspected terrorists. Under this 
order non-citizens, whether from the United States or elsewhere, accused of 
aiding international terrorism, at the discretion of the President, can be 
tried before one of these commissions. These are not court-martials, which 
provide far more protections. The divergence from constitutional 
protections the executive order allows are breathtaking. Attorney General 
Ashcroft has explicitly stated that terrorists do not deserve 
constitutional protections. These are "courts" of conviction and not of 
justice.The Secretary of Defense will appoint the judges, most likely 
military officers, who will decide both questions of law and fact. Unlike 
federal judges who are appointed for life, these officers will have little 
independence and every reason to decide in favor of the prosecution. Normal 
rules of evidence, which provide some assurance of reliability, will not 
apply. Hearsay and even evidence obtained from torture will apparently be 
admissible. This is particularly frightening in light of the intimations 
from U.S. officials that torture of suspects may be an option. Rules of 
evidence help insure the innocent are spared, but also that law enforcement 
authorities adhere to what we thought were evolving standards of a 
civilized society. Unanimity among the judges is not required even to 
impose the death penalty. Suspects will not have free choice of attorneys. 
The only appeal from a conviction will be to the President or the Secretary 
of Defense. Incredibly, the entire process, including execution, can be 
conducted in secret and the trials can be held anywhere the Secretary of 
Defense decides. A trial might occur on an aircraft carrier and the body of 
the executed "buried" at sea. The President is literally getting away with 
murder.Surprisingly, a number of prestigious law professors (e.g. Lawrence 
Tribe and Ruth Wedgwood) have accepted and even argued in favor of these 
tribunals. The primary claim is that it might be necessary to disclose 
classified information in order to obtain convictions. This is a pretext. 
There are procedures for handling classified information in federal courts 
as was done in the trial of those convicted in the 1993 bombing of the 
World Trade Center. It certainly does not provide a reason for sending 
suspects into a "justice" system akin to that which the US condemned in 
Peru. The 1993 trials also demonstrate that these trials can be held in 
federal courts. Trials before military commissions will not be trusted in 
either the Muslim world or elsewhere. Nor should they. They will be viewed 
as what they are -- "kangaroo courts." How much better to demonstrate to 
the world that the guilty have been apprehended and fairly convicted. A 
better solution would be for the US to go to the U.N. and have the UN 
establish a special court for the trials. Judges from different legal 
systems including that of the US, Muslim and civil law countries could 
constitute such a court.

WIRETAPPING ATTORNEY-CLIENT COMMUNICATIONS
At the heart of the effective assistance of counsel is the right of a 
criminal defendant to a lawyer with whom he or she can communicate candidly 
and freely without fear that the government is overhearing confidential 
communications. This right is fundamental to the adversary system of 
justice in the Untied States. When the government overhears these 
conversations, a defendant's right to a defense is compromised. Now, with 
the stroke of pen, Attorney General Ashcroft, has eliminated the 
attorney-client privilege and will wiretap privileged communications when 
he thinks there is "reasonable suspicion to believe" that an "inmate may 
use communications with attorneys or their agents to further facilitate act 
of violence or terrorism." He says that approximately one hundred such 
suspects and their attorneys may be subject to the order. He claims the 
legal authority to do so without court order; in other words without the 
approval and finding by a neutral magistrate that attorney-client 
communications are facilitating criminal conduct. This is utter lawlessness 
by our country's top law enforcement officer and is flatly 
unconstitutional. This wiretapping of attorney-client communications has 
already begun.

THE NEW LEGAL REGIME
The government has established a tripartite plan in its efforts to 
eradicate terrorism in the United States. President Bush has created a new 
cabinet-level Homeland Security Office; the Federal Bureau of Investigation 
is investigating thousands of individuals and groups and making hundreds of 
arrests; and Congress is enacting new laws that will grant the FBI and 
other intelligence agencies vast new powers to wiretap and spy on people in 
the United States.

THE OFFICE OF HOMELAND SECURITY
On September 20th President Bush announced the creation of the Homeland 
Security Office, charged with gathering intelligence, coordinating 
anti-terrorism efforts and taking precautions to prevent and respond to 
terrorism. It is not yet known how this office will function, but it will 
most likely try to centralize the powers of the intelligence and law 
enforcement agencies -- a difficult, if not impossible, job -- among some 
40 bickering agencies. Those concerned with its establishment are worried 
that it will become a super spy agency and, as its very name implies, that 
the military will play a role in domestic law enforcement.

FBI INVESTIGATIONS AND ARRESTS
The FBI has always done more than chase criminals; like the Central 
Intelligence Agency it has long considered itself the protector of US 
ideology. Those who have opposed government policies -- whether civil 
rights workers, anti-Vietnam war protesters, opponents of the covert 
Reagan-era wars or cultural dissidents -- have repeatedly been surveyed and 
had their activities disrupted by the FBI.

In the immediate aftermath of the September 11 attack, Attorney General 
John Ashcroft focused on non-citizens, whether permanent residents, 
students, temporary workers or tourists. Normally, an alien can only be 
held for 48 hours prior to the filing of charges. Ashcroft's new regulation 
allowed arrested aliens to be held without any charges for a "reasonable 
time," presumably months or longer. (See below for new legislation 
regarding detention of immigrants.)

The FBI began massive detentions and investigations of individuals 
suspected of terrorist connections, almost all of them non-citizens of 
Middle Eastern descent; over 1,100 have been arrested. Many were held for 
days without access to lawyers or knowledge of the charges against them; 
many are still in detention. Few, if any, have been proven to have a 
connection with the September 11 attacks and remain in jail despite having 
been cleared. In some cases, people were arrested merely for being from a 
country like Pakistan and having expired student visas. Stories of 
mistreatment of such detainees are not uncommon. Apparently, some of those 
arrested are not willing to talk to the FBI, although they have been 
offered shorter jail sentences, jobs, money and new identities. 
Astonishingly, the FBI and the Department of Justice are discussing methods 
to force them to talk, which include "using drugs or pressure tactics such 
as those employed by the Israeli interrogators." The accurate term to 
describe these tactics is torture. Our government wants to torture people 
to make them talk. There is resistance to this even from law enforcement 
officials. One former FBI Chief of Counter-Terrorism, said in an October 
New York Newsday article, "Torture goes against every grain in my body. 
Chances are you are going to get the wrong person and risk damage or 
killing them." As torture is illegal in the United States and under 
international law, US officials risk lawsuits by such practices. For this 
reason, they have suggested having another country do their dirty work; 
they want to extradite the suspects to allied countries where security 
services threaten family members and use torture. It would be difficult to 
imagine a more ominous signal of the repressive period we are facing. The 
FBI is also currently investigating groups it claims are linked to 
terrorism -- among them pacifist groups such as 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 of Women in Black to 
either talk about their group or go to jail. As one of the group's members 
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."Unfortunately, the FBI does not make that distinction. We are 
facing not only the roundup of thousands on flimsy suspicions, but also an 
all-out investigation of dissent in the United States.

THE NEW ANTI-TERRORIST LEGISLATION
Congress has passed and President Bush has signed sweeping new 
anti-terrorist legislation, the USA Patriot Act (Uniting and Strengthening 
America by Providing Appropriate Tools Required to Intercept and Obstruct 
Terrorism), aimed at both aliens and citizens. The legislation met more 
opposition than one might expect in these difficult times. A National 
Coalition to Protect Political Freedom of over 120 groups ranging from the 
right to the left opposed the worst aspects of the proposed new law. They 
succeeded in making minor modifications, but the most troubling provisions 
remain, and are described below:

·Rights of Aliens

Prior to the legislation, anti-terrorist laws passed in the wake of the 
1996 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 attorney could 
view or refute. The current proposed legislation makes it even worse for 
aliens.

First, 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 provided only humanitarian 
assistance to organizations disfavored by the United States. Once certified 
in this way, an alien could be imprisoned indefinitely with no real 
opportunity for court challenge. Until now, such "preventive detention" was 
believed to be flatly unconstitutional.

Second, current law permits deportation of aliens who support terrorist 
activity; the proposed law would make aliens deportable for almost any 
association with a "terrorist organization." Although this change seems to 
have a certain surface plausibility, it represents a dangerous erosion of 
Americans' constitutionally protected rights of association. "Terrorist 
organization" is a broad and open-ended term that could include liberation 
groups such as the Irish Republican Army, the African National Congress, or 
civic groups that have ever engaged in any violent activity, such as 
Greenpeace. An alien who gives only medical or humanitarian aid to similar 
groups, or simply supports their political message in a material way could 
be jailed indefinitely.

·More Powers to the FBI and CIA

A key element in the new law is the wide expansion of wiretapping. In the 
United States wiretapping is permitted, but generally only when there is 
probable cause to believe a crime has been committed and a judge signs a 
special wiretapping order that contains limited time periods, the numbers 
of the telephones wiretapped and the type of conversations that can be 
overheard.

In 1978, an exception was made to these strict requirements, permitting 
wiretapping to be carried out to gather intelligence information about 
foreign governments and foreign terrorist organizations. A secret court, 
the Foreign Intelligence Surveillance Court, was established that could 
approve such wiretaps without requiring the government to show evidence of 
criminal conduct. In doing so the constitutional protections necessary when 
investigating crimes could be bypassed. The secret court is little more 
than a rubber stamp for wiretapping requests by the spy agencies. It has 
authorized over 13,000 wiretaps in its 22-year existence, approximately a 
thousand last year, and has apparently never denied a request.

Under the new law, the same secret court will have the power to authorize 
wiretaps and secret searches of homes in criminal cases -- not just to 
gather foreign intelligence. The FBI will be able to wiretap individuals 
and organizations without meeting the stringent requirements of the 
Constitution. The law will authorize 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 e-mail will be allowed, even 
before the recipient opens it. Thousands of conversations will be listened 
to or read that have nothing to do with the suspect or any crime.

The new legislation is filled with many other expansions of investigative 
and prosecutorial power, including wider use of undercover agents to 
infiltrate organizations, 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. 
Another provision of the new bill makes it a crime for a person to fail to 
notify the FBI if he or she has "reasonable grounds to believe" that 
someone is about to commit a terrorist offense. 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. We will all need 
to become spies to protect ourselves and the subjects of our spying, at 
least for now, will be those from the Mid East.

·The New Crime of Domestic Terrorism

The act creates a number of new crimes. One of the most threatening to 
dissent and those who oppose government policies is the crime of "domestic 
terrorism." It is loosely defined as acts that are dangerous to human life, 
violate criminal law and "appear to be intended" to intimidate or coerce a 
civilian population" or "influence the policy of a government by 
intimidation or coercion." Under this definition, a protest demonstration 
that blocked a street and prevented an ambulance from getting by could be 
deemed domestic terrorism. Likewise, the demonstrations in Seattle against 
the WTO could fit within the definition. This was an unnecessary addition 
to the criminal code; there are already plenty of laws making such civil 
disobedience criminal without labeling such time honored protest as 
terrorist and imposing severe prison sentences. Overall, the new 
legislation represents 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.

It is common for governments to reach for draconian law enforcement 
solutions in times of war or national crisis. It has happened often in the 
United States and elsewhere. We should learn from historical example: times 
of hysteria, of war, and of instability are not the times to rush to enact 
new laws that curtail our freedoms and grant more authority to the 
government and its intelligence and law enforcement agencies.

The US government has conceptualized the war against terrorism as a 
permanent war, a war without boundaries. Terrorism is frightening to all of 
us, but it's equally chilling to think that in the name of antiterrorism 
our government is willing to suspend constitutional freedoms permanently as 
well.