Emile Schepers, Program Director, Chicago Committee to Defend the Bill of Rights

  We in the USA are facing the biggest crisis in constitutional rights since the McCarthyism period of the 1950s.  Many are seeing this as a response to the terrorist attacks of September 11 and the possibility that there may be more such actions on the way.  However, a survey of recent history shows that this is a fallacious viewpoint.  The government is not responding to a special crisis, it is playing a deep game with a long-term strategy.  And that is much more worrisome than if it were a case of over-reaction to an unprecedented terrorist attack. In this piece, I review what the trends toward repression actually are, and present some ideas for priority actions in defense of First Amendment and due process rights enshrined in the Bill of Rights of the US Constitution.  My hope is that this stimulates discussion about strategy specifically.


  We must remember that even before 9-11, there was a dangerous trend toward restricting constitutional rights.   Already in the 1970s, after the revelations about COINTELPRO in congressional hearings had moved things in a direction favorable to constitutional rights, the Trilateral Commission was pushing the other way, toward more repression.  The Trilateral Commission Report warned --accurately as it happened--that within a short time the economic expectations of the world's peoples would begin to exceed what the corporations and governments would be willing to concede, and that this would make necessary the curtailment of democratic rights worldwide so as to protect the status quo. Prophetic words!    In 1996, two pieces of legislation were passed by Congress and signed by President Clinton which had serious and negative constitutional rights implications.  These were the Anti-Terrorism and Effective Death Penalty Act, and the Illegal Immigration Reform and Immigrant Responsibility Act.   These two pieces of legislation, taken together,  had the following negative impacts on constitutional and civil rights:  In the late 1990s, the government showed  signs of using civil forfeitures in politically tinged cases. Civil forfeitures entail the seizure of the assets of an individual or group without a judicial finding of guilt.  The person or organization whose property was seized must then sue in civil court to get the property back, and has to prove that they were NOT criminals (i.e. presumption of innocence is reversed).

 As the 1990s ended, the world began to see a massive build-up of protest against corporate globalization, which more or less was what the Trilateral Commission had forecast.   From Seattle to Genoa, hundreds of thousands of people of a variety of backgrounds protested the degradation of human life and the environment that was caused by corporate-promoted trade and investment policies.  These protests, on a scale that had not been seen in the USA in quite some while--since the days of the Vietnam War, in fact-- threw a scare into the state at all levels, motivating a beefing up of police capacity to spy on and disrupt dissent.  This is also an international trend, as the actions of Italian authorities toward the Genoa protests has shown.

  Also from the late 1990s on, there was an effort, evidently orchestrated by the FBI, to remove legal restrictions on police surveillance of activities protected under the First Amendment.  In Chicago, the city went to court in 1997 to gut the 1981 Alliance/ACLU Red Squad Consent Decree, and eventually won their case in the 7th Circuit Court of Appeals (on January 11, 2001).  The Consent Decree in question was the result of the 1974 Red Squad lawsuit by the Alliance to End Repression, and had forbidden the city government from spying on or disrupting activities  protected by the Bill of Rights.   In San Francisco, the FBI tried, unsuccessfully at first,  to pressure the city government to remove similar statutory restrictions.  There is some evidence that this was a national pattern.

  The 7th Circuit Court of Appeals decision in Chicago was only one of several court decisions that went against civil liberties.  The US Supreme Court, for example, ruled in the LA 8 case that at least under certain circumstances, the government can include political views and activities in deportation decisions.   For a long time, the government has asserted that non-citizens are not protected by the due process amendments of the Bill of Rights when under deportation orders by the US Immigration and Naturalization Service, but in the past, the Supreme Court had tended to side with the immigrants.   The LA 8 decision is a worrisome change of direction.


  The government has quickly taken advantage of 9-11 by the following actions:

  The USA/PATRIOT Act, draconian legislation rammed through at record speed without any public  discussion, represents the biggest assault on the Bill of Rights since COINTELPRO.   Its nearly 350 pages of hard-to-read text are packed with problems, the following being only some of the worst:

 Beyond the USA/PATRIOT Act, the government has either instituted or is talking about further draconian measures, including:   And private parties have been getting into the act, following the lead of the government.   Harassment, profiling and even violent assault against people perceived to be Arabs or Muslims, or even just those who seem to be "foreign", has skyrocketed.   The government has sent mixed signals about this, on the one hand deploring it but also doing many things to encourage it.

   Academics who dissent from the present war fever or criticize some aspects of US government policy are now under attack in some areas. The most extreme example is that of Dr. Sami Al-Arian, a professor at the University of South Florida, who was just fired for blatantly political reasons,  in spite of the fact that he had tenure.   Yellow journalists in the Tampa area had launched a media witch-hunt against Dr. Al Arian, who is a Muslim and an Arab US citizen and who has criticized US Middle East policy.  This led to anonymous threats of violence against Al-Arian and the University, and the University either caved in or used the supposed threat to student safety that these threats represented as a pretext for firing the professor.   Other academics have also been threatened by their administrations or by right wing groups for dissenting from the Bush administration's policies.

   And in general, we are seeing new attacks on the rights of the foreign born.   The AFL-CIO and component unions has been targeting immigrant workers for organizing drives, and in some cases, after 9-11 employers used the xenophobic atmosphere to increase their threats against immigrant workers involved in unionization drives.    For example, workers in a large laundry plant in suburban Chicago were told that their demand for compensation above their present minimum wage was "disloyal" in a time of national crisis. This is a clear use of the current situation to "chill" dissent.


 Bad as the situation is, it is important that we keep things in perspective and try to determine what are real, imminent dangers, and what are long shot dangers--things that might happen but in the short run probably won't.

  This is because it is not good to go around saying that nobody has any constitutional rights ay more.   In the first place, this is not true (not yet, at least), and in the second place,  such overheated and panicky claims would play into the government's hands by frightening people into silence.    We need people to stand up, speak out and fight for social justice, not to become so fearful that they pull back and shut up.   So we need to be able to assess what the risks really are.

  Also, resources for fighting against repression are spread awfully thin.   We need to know where to anticipate real trouble so as to be able to concentrate these resources.

  What groups and sectors are the government, and its right-wing backers, most interested in repressing right now, excluding actual, real terrorists?

 We must not forget that the anti-globalization protests, Seattle through Genoa, threw a big scare into the government and its corporate backers, and led to a lot of  strategizing at all levels of government as to how such protests could be contained in the future. Not only the Middle East situation and the war in Afghanistan, but the Free Trade Area of the Americas, Plan Colombia and the Andean Pact, and similar policies that are very close to the hearts--and wallets--of our leaders are likely to be sore spots.    The US may be getting ready to plunge into the situation in Colombia wholesale, and this will bring objections and protests stateside.  This is a probable danger area of government action to restrict civil liberties.   Likewise, the ongoing situation in Puerto Rico, and especially the continued US bombing of the island of Vieques, will continue to spark protests both in Puerto Rico and in the US, and this will likely stimulate repressive action on the part of the government, which has heavily repressed the Puerto Rican independence movement in the past.


 Even if  fewer people are actually targeted for repression right now than some of us fear, we also have to be concerned with the long term damage to the whole concept of constitutional rights.  The fact that they are actually talking about permitting torture under certain circumstances should wake us up.  The behavior of the Bush administration, and especially of Attorney General Ashcroft, represents a long term institutional danger to the First Amendment, to due process and especially the right to an attorney, to the concept of "innocent until proven guilty", to the concept of equality under the law of both citizens and non-citizens, and even to the separation of powers and the concept of an independent judiciary.   So we have to fight to overturn these trends even if very few people are actually arrested or prosecuted.


LEGAL DEFENSE.   First of all, there are not enough attorney resources to handle, on a pro-bono or low cost basis, a sudden increase in repression of political dissent and of the struggles for social justice.    People involved in social justice struggles who are arrested and charged, who are hauled before politically motivated grand juries, or who are simply subjected to scary harassment, are going to need help.   One government tactic in the past (under McCarthyism in the 1950s, for example) is to try to stop dissent by financially ruining individual and organizational dissenters, and this can be done by forcing them to spend all their money and then some on legal help. Many organizations and individuals have been neutralized in this way, sometimes for years at a time, sometimes permanently.    This is a government tactic that can work even when the prosecutors know that they can not win a case in court.   And groups involved in present-day social justice dissent are very often extremely impecunious.   Even a modest-sized legal bill could put them out of action.  We can not permit this, so we need  to discuss how to increase legal resources proportional to the danger.   We should discuss both how we can build up existing resources, and if any new ones need to be created.

COALITION BUILDING.   As I have spoken recently in Chicago and suburbs on the constitutional rights crisis, I have noticed that I am frequently addressing either people who have been interested in this issue for many years, or people who are involved in the anti-war and anti-globalization movements.  Audiences tend to be composed of white professional people and students, with a representation of Arab-Americans and Muslims also.   Yet there are many other important  segments of the society that either are already taking alarm about the attack on constitutional rights, or are in an objective situation wherein they SHOULD be taking alarm.   Among these are:

 Coalition building is an art and a science.   It requires patient diplomatic work, and above all the recognition that there must be mutual solidarity on the issues most important to each real or potential coalition partner.  For example, to maximize African-American support on the defense of constitutional rights, we must recognize that most African-American activists correctly see police brutality and routine racial profiling as being part and parcel of the attack on such rights.   Likewise, we must understand that labor unions are vitally interested in the RIGHT TO ORGANIZE as a basic human right. The route to unity and solidarity is through the creative combining of the key issues and struggles of each component group.


   At the best of times, the people of the USA are not well educated on constitutional issues.   Even such basics as the 6th Amendment right to an attorney or the presumption of "innocent until proven guilty" are sometimes seen as some kind of "coddling of criminals" or special favors to the guilty at the expense of the victims and the long-suffering, law-abiding public.  The government and the news and entertainment media (think of such things as the Charles Bronson "Death Wish" films or the TV show NYPD Blue) have been committing assault and battery on constitutional rights, and even promoting police brutality and vigilantism,   for a long time.  The status of the rights of the foreign born is even worse, with a tendency to think of all non-citizens as "illegals" who are thought not to have any rights at all.    Also, the unprecedented horror of 9-11 is making people react emotionally, with anger, sadness and fear, and support government actions they might otherwise question. Both government and establishment media are doing all they can to confuse people and get them to accept the previously acceptable, e.g. torture of terrorism suspects.  We have to leave no stone unturned to find ways to turn this trend around, and show people that the defense of constitutional rights is in their own vital interest.


We must increase the following kinds of actions: Let the fight-back begin!