Since September 11, there has been a massive outpouring of legislative proposals and government directives that have extremely negative implications for constitutional rights. We at CCDBR have been trying to keep abreast of this, while carrying out a recent record number of public speaking engagements to a wide variety of audiences. We have summarized the most important federal and state government initiatives on the following three pages. Of course, we are aware that by necessity much is left out, including new initiatives such as: A proposal to deny student visas to any and all students from countries the State Department lists as "supporting terrorism" (even though not one of the hijackers came from such a country), a national identification card proposal, and the latest, which is a proposal by Attorney General John Ashcroft to greatly loosen the rules under which people can be investigated for political associations. We will keep you abreast of developments as fast and completely as we can.
The government has presented a series of new initiatives that it claims are a necessary response to the terrorist attack on New York City and the Pentagon on September 11. These initiatives include, most importantly, THE USA/PATRIOT ACT, SPECIAL MILITARY TRIBUNALS, THE CLAIMED RIGHT OF THE GOVERNMENT TO LISTEN IN ON ATTORNEY-CLIENT COMMUNICATIONS, AND GENERAL ROUND-UPS OF OVER A THOUSAND FOREIGN BORN PEOPLE. In addition, the Illinois General Assembly just passed the ILLINOIS COMPREHENSIVE ANTI-TERRORISM ACT. Let us look at the implications of each of these initiatives.
I. THE USA/PATRIOT ACT This law, rammed through the Congress and signed by President Bush on October 26, met with very little Congressional opposition (one nay vote in the Senate and 66 in the House).
But constitutional rights defenders point to some very problematic features of this law, including:
*Its definitions of terrorism, which are not the same throughout the law, are very broad. It makes no distinction between attacks on civilians and actions carried out against armed forces in a popular rebellion against a tyrannical regime--George Washington was definitely a terrorist, by the criteria of the USA/PATRIOT Act. Further, it includes as terrorism even actions that merely damaged property, without risk to life or limb. Potential abuse: People could be accused of involvement with terrorism because o property damage that happens in the context of protest demonstrations. Such damage is often deliberately carried out by the opponents of the demonstrators in order to incriminate the demonstrators. People who had been involved infighting against foreign dictators will certainly be accused of terrorism, even if no civilians were ever targeted.
*It sharply reduces the due process rights of non-citizens, even those legally in this country. It permits detention and deportation of non-citizens accused of terrorist involvement merely on the say-so of the Department of Justice, nearly eliminating judicial review. Non citizens may now be punished by deportation without the assumption that they are innocent until proven guilty. It allows the holding of non-citizens for up to seven days without being charged (normally, habeas corpus does not let police hold you for more than 48 hours without your being either charged or released). Under certain circumstances, non citizens may be held in jail permanently without a trial if the government claims they are involved with terrorism. (This would happen if the government tried to deport them and their country of origin refused to take them back). Potential abuse: Huge injustices could be carried out against innocent non-citizens on this basis. Further, this is the thin edge of the wedge for taking away the whole concept of "innocent until proven guilty" for the whole population
*It allows the pooling of data among government agencies including the CIA, FBI, INS, IRS, ATF, Secret Service and Others. These will also pool information and carry out joint operations with local police. The CIA is now authorized to operate within the geographical USA. Potential abuse: There will be a multiplier effect of abusive behavior by government agencies: For an abusive INS to pass on data on non-citizens to an abusive FBI is likely to increase the chances and intensity of abuse. Adding the CIA, with its culture of dirty tricks, into this mix sets up potential nightmare scenarios.
*It forces colleges and universities to provide a wide range of data on foreign students to the federal government. This includes not just non-citizens with student visas, but permanent residents with green cards studying in the United States. The government may want to know what programs majors non-citizen students are selecting etc. as well as whether the student is studying full time or has dropped out of school. Potential abuse: This could discourage foreign born students, with student visas or green cards, from taking certain courses, from joining certain on-campus organizations, from speaking out in class, etc. for fear that they could be deported. Further, the government may share information on foreign-born students with repressive foreign governments (as has happened before), leading to the physical endangerment of these students and their families in the home country.
*It greatly increases the government's ability to carry out wiretaps and Internet surveillance. For example, "roving wiretaps" are now legal, meaning that the authorities can get permission to listen to any telephone that a terrorism suspect (defined according to the government's broad criteria) MIGHT use. (Note that this aspect of the law sunsets in four years). Potential abuse: Both the roving wiretaps and the increased Internet surveillance authority could become the basis for out of control fishing expeditions and general purpose political spying unrelated to the prevention of terrorism.
*It permits secret searches of homes and offices. Before, the government could secretly search your home or office under a special internally generated warrant in order to further an intelligence operation, not to gather evidence to prosecute you. Now, they can go into homes and offices, if authorized by a special internal administrative court, without telling you in order to gather evidence to prosecute you. Problem. If you don't know you are subject to a search, you can not challenge the legality of said search. Incriminating evidence could be planted on you through a "sneak and peek" operation to be 'found" later. "Sneak and peek" may well be held to be a violation of the Fourth Amendment at some point, but a lot of abuse could happen until then.
II. SPECIAL MILITARY TRIBUNALS. President Bush has announced that non-citizens accused of terrorism might be tried, at his discretion, by special military tribunals instead of regular courts. Normal due process protections are greatly reduced in such tribunals. For example, evidence might be secret, the accused might not be able to select their own lawyers, hearsay evidence might be permitted, and appeals would be limited. The judges would be US military officers. Such tribunals have been used in the past, for example against Major Andre during the Revolutionary War, against accused Confederate agents and traitors during the Civil War, against accused German spies during World War 11 and against Japanese General Tomoyuki Yamashita after World War II.- Potential abuse: This was already clear in the cases of general Yamashita and others, which many legal scholars have since characterized as a cross between victor's justice and lynch law. First of all, the elimination of important due process protections is troubling in and of itself. More troubling still is the rationale for using these tribunals given by President Bush, Vice President Cheney and Attorney General Ashcroft: It is clear that these high officers of the government disagree with the concept of "innocent until proven guilty" and that they think trials are a sort of favor granted to guilty people, and not a mechanism for determining whether such people are actually guilty or not. Further, Bush, Cheney and Ashcroft have repeatedly made a distinction between US citizens and non-citizens, to the effect that the former deserve due process and the latter do not. Although there is no indication that the government intends to use such tribunals outside the Afghanistan theater of combat, the fact that they could propose this bodes ill for the concept of equal justice for the foreign born.
III. LISTENING IN ON ATTORNEY-CLIENT CONVERSATIONS. The government claims that information necessary to the operation of terrorists is sometimes passed on through jailed terrorists' attorneys, and that therefore the government is going to listen in to a limited number of attorney-client conversations. Evidently, this is already going on, in cases not necessarily directly related to September 11. Potential abuse While the government has not claimed a blanket right of all police to listen in on all attorney-client communications, this decision at a minimum sets a bad precedent for the future, and undermines sixth amendment guarantees of legal representation by the accused.
IV. ROUNDUPS OF THE FOREIGN BORN. After the September I I attacks, the government rounded up 1,100 people at a minimum, mostly on the basis of minor visa problems--problems some of which could have been solved by a phone call, letter or visit to INS in normal times. About 550 of these people are still detained. Ashcroft says that all those still detained are law violators and will be prosecuted. Potential abuse: The problem here is that people were rounded up on the basis of vague suspicions and were not allowed adequate access to their attorneys or families. All people rounded up were Middle Easterners as far as we know. Yet when Timothy McVeigh bombed the Murrah Federal Building in Oklahoma City, there was no general roundup of blond-haired blue eyed young US born men, even though there are clearly more violent people like McVeigh where he came from. This smacks of racial profiling and also represents an erosion of the idea of due process.
V. OFFERING LEGAL RESIDENCE AND CITIZENSHIP TO PEOPLE WHO AGREE TO TURN IN OTHERS SUSPECTED OF HAVING TERRORIST LINKS. Ashcroft has announced that from now on, persons who provide information on others who might have links to terrorism may be given 'favors' from the US Immigration and Naturalization Service (INS) such as being given legal residency status here in the US if they are here without such status. Potential abuse: This gives people a motive to "turn in their neighbors " which could lead to false accusations of involvement in terrorism. Even before September 11, we know of at least one case in which a man was falsely accused of terrorism and spent years in jail because his former wife, embittered by a nasty divorce case, made false accusations against him.
VI. THE ILLINOIS COMPREHENSIVE ANTI-TERRORISM ACT. On Thursday, November 30, 2001, the Illinois General Assembly passed HB 2699, the Illinois Comprehensive Anti-Terrorism Act. Original versions of this bill were even worse than the federal USA/PATRIOT Act. However, a strong lobbying campaign removed much of the worst language from the bill, including language that defined terrorism as including even acts that represent a threat to property, dangerous civil forfeiture language, and other things. Roving wiretaps and enhanced Internet surveillance are approved, but will sunset in two years. Potential Abuse: Illinois and local police can use their new powers for general purpose or politically motivated fishing expeditions. Further, the class of crimes for which the death penalty is mandated and which are classified as "Class X" is now expanded, at a time when there are serious doubts about the Illinois criminal justice system and when are many are calling for the death penalty to be abolished
Excluded from the above synopsis are some measures, including a number in the USA/PATRIOT Act, that are not threats to constitutional rights, e.g. beefing up airport security. However, the items listed above, taken together, represent a very serious erosion of constitutional guarantees, and would never have been accepted by the American people had it not been for the crime against humanity committed on September 11. The general public sees the above measures as necessary responses to the attack on US territory.
It must be noted, however, that a general move toward a more repressive way of governing was already noticeable long before September 11. The following items give evidence to this:
*The passage, in 1996, of two repressive and anti-immigrant laws, the Anti-Terrorism and Effective Death Penalty Act, and the Illegal Immigration Reform and Immigrant Responsibility Act. These two laws established such things as deportation of non-citizens on the basis of secret evidence (which the accused and his/her attorney are not allowed to see), and criminalization of humanitarian aid to organizations the government chooses to list as being terrorist.
*The successful efforts by the City of Chicago to gut the 1981 Alliance to End Repression/ACLU Consent Decree on police spying on constitutionally protected activity. On January 11, 2001 the US Court of Appeals for the 7th Circuit gave the City of Chicago the right to collect political dossiers on all community organizations, to place groups under surveillance based on nothing more than a declaration by the police that they are "extreme" and to film all demonstrations "for training purposes".
*The FBI has been pressuring other city Police Departments to step up their surveillance of dissident groups, in cooperation with the FBI's own agents.
*Police agencies at all levels, including the FBI have been issuing warnings related to the series of protests against corporate globalization, the World Trade Organization and other related social justice issues, which are represented as potential terrorist threats. There have been severe crackdowns on such demonstrations in Los Angeles, Washington, Philadelphia and elsewhere.
Thus, the September 11 attacks provided an opportunity for the government to do some things they wanted to do anyway. And they may well come up with even more repressive measures in the near future.
It is vitally important that people and organizations concerned with constitutional and civil rights monitor the implementation of these new laws and policies, and speak out publicly against the abuses that will occur and are already occurring on their basis.
For more detailed information contact:
THE CHICAGO COMMITTEE TO DEFEND THE BILL OF RIGHTS1325 S. WABASH CHICAGO IL. 60605-2506
(312) 939-0675 FAX (312) 939-7867
CCDBR Thanks the Crossroads Fund and our loyal friends & sustainer members for your financial support in the fight to defend constitutional guarantees..