Assault on America II


It took exactly eight days for the war on terrorism to come home. September 11 exposed the nation‘s multi-billion dollar spy apparatus as bureaucratic, sluggish, and quarrelsome, with a weakness for high-tech goodies and Cold War paradigms as anachronistic as a Russian-English dictionary. No matter. Immediately blame fell on our open society, in the form of the USA-PATRIOT Act of 2001. Faster than you could say bin Laden, freedom became a synonym for a straightjacket on police authority. Too much surveillance was not nearly enough. The Bush administration, with the pitiful acquiescence of both parties, rapidly expanded the powers of government to snoop on ordinary citizens, to employ preventive detentions and “disappearances” (a method pioneered by the fascist generals in Argentina), and conduct unwarranted searches and seizures -- all under the aegis of the PATRIOT Act, the “anti-terrorism” bill that could have been dreamed up by Tom Clancy, which won approval last month on a vote of 357 to 66 in the House, 99-1 in the Senate.

“The power President Bush is wielding today is truly breathtaking,” Tim Lynch, director of the Project on Criminal Justice at the libertarian Cato Institute, told the Washington Post. “A single individual is going to decide how much privacy American citizens are going to retain.”

Not satisfied with the most sweeping extension of law enforcement authority since World War II, the White House has moved unilaterally to expand the President’s retributive prerogatives. The week before Thanksgiving, the president decreed that “the principles of law and the rules of evidence” that are the bulwark of American justice will not apply to foreigners charged with terrorism. In his emergency order Bush claimed the privilege to disregard the courts and establish military tribunals -- commissions appointed by the Secretary of Defense that would sit in judgment of noncitizens dragooned whenever the president determined that he, and he alone, had “reason to believe” malefactors were “engaged in, aided or abetted, or conspired to commit acts of international terrorism.” Even threatening “to cause...injury to...the United States” might lead to summary trial.

“Foreign terrorists who commit war crimes against the United States,” Attorney General John Ashcroft announced soon afterward, “are not entitled to and do not deserve the protections of the American Constitution.” If the administration‘s predilection was for frontier justice -- “dead or alive” were the words the president used on September 12 -- then the venue was well-chosen. The administration, in effect, is prosecutor, judge, jury, and, executioner. All kinds of evidence normally excluded from civilian courts -- even confessions obtained under torture -- may be admissible. Among the safeguards Bush’s tribunals would abolish are the right of the accused to confront his accusers, representation by legal counsel of his choice, and the right to appeal. Unanimous verdicts, too, are gone; if a third of the jurists vote to acquit, too bad. Secret evidence may be introduced, just as it was under the Taliban. The trial may be held anywhere -- aboard an aircraft carrier in the Indian Ocean, say -- and a death sentence may be carried out and the corpse dumped overboard, without a whisper that the proceeding took place. Hardly the standard of justice set at Nuremberg, prompting conservative columnist William Safire to write, “a president of the United States has just assumed what amounts to dictatorial power.”

The offending foreigner need not worry, however, about fairness. The president‘s order demands that the accused be “treated humanely, without any adverse distinction based on race, color, religion, gender, birth, (or) wealth.” The chief executive also guarantees “a full and fair trial.”

The Bush administration, says Peter Maguire, author of Law and War: An American Story, prefers military tribunals because such proceedings practically ensure conviction. “Military justice is described as ’a good trial and a better hanging,‘” McGuire says. “It’s just a swift prelude to execution.”

Military tribunals would also advance a second administration goal. Hauling members of al Qaeda, or even bin Laden, before a drumhead court would be a direct assault on the growing body of human rights law that has emerged out of the a international tribunals for war crimes in Bosnia, Kosovo, Croatia and Rwanda, and out of the example of the Spanish pursuit of Chilean dictator Augusto Pinochet in England -- a case with strong family ties to Bush. Military tribunals, McGuire says, are “a preemptive act, a slap in the face of human rights groups, the United Nations and international criminal courts. Bush has taken the issue out of their hands.”

Senator Patrick Leahy (D-Vermont), the chairman of the Judiciary Committee, began hearings Wednesday to review the Bush maneuver. “The Administration has sought and Congress has created new criminal offenses specifically aimed at terrorists, anticipating that they will be . . . prosecuted as regular criminals, not war criminals,” he said on November 14. “There has been no formal declaration of war, and in the meantime, our civilian courts remain open and available to try suspected terrorists. All this raises questions about whether the President can lawfully authorize the use of military commissions.”


Unless Congress or the Supreme Court intervenes, the Bush administration may continue to swat aside the nuisance of civil liberties. Earlier this month, Bush issued an executive order allowing a sitting president to block release of a predecessor‘s records, undermining a law Congress passed giving citizens access to the historical record. Libraries nationwide have been summarily ordered by various federal agencies to destroy public documents -- including registers of toxic polluters -- in the name of national security. On October 31, in an order not reported until this week, Attorney General John Ashcroft usurped the power to keep foreigners in jail even after immigration courts have ordered them released for lack of evidence. Nothing more than the attorney general’s consent is required to keep a foreigner behind bars indefinitely. Also on October 31, in a little-noticed filing in the federal register, Ashcroft skirted the usual waiting period for public comment and arrogated to himself the power to eavesdrop on attorney-client communications. Anyone in federal custody, including those held by the INS solely on immigration charges, is now subject to the abrogation of this 6th Amendment right of counsel, so long as the Attorney General believes a “reasonable suspicion exists” that an inmate might “use communications with attorneys or their agents to facilitate acts of terrorism.” No charges need be filed, no court order is required, no probable cause is necessary. Just the Attorney General‘s say-so, and a warning to the attorney and client that their conversations are being monitored.

These may be the tools of the banana republic and the kangaroo court, but they dovetail neatly with fine-print provisions of the PATRIOT Act. Although the potential of putting massive amounts of information about the private lives of Americans into government cyberfiles grabbed headlines, the Act sanctions far more draconian police practices. Notably, it has made “black bag” operations legal. The government may break and enter into anyone’s home without the occupant ever being told the entry has occurred. To do so, federal attorneys need simply claim that the intelligence is for a “significant purpose” in a criminal investigation. Never mind probable cause, the strict standard in criminal cases. Now it‘s send in the plumbers. Who decides to suspend the 4th Amendment? The Foreign Intelligence Surveillance Court, a secret court of seven judges meeting in a sealed room in the bottom of the Department of Justice. According to Michael Ratner of the Center for Constitutional Rights, of the 13,000 authorizations requested of that court since it was created 20 years ago, only one has been turned down.

Consider the bill’s definition of “terrorism.” “Acts dangerous to human life that are a violation of the criminal laws . . . (and) appear intended to intimidate or coerce the civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination or kidnapping” are crimes punishable by twenty years in a federal penitentiary. “This turns civil disobedience, a respected manner of dissent, into a most serious crime of domestic terrorism,” says Ratner. “It equates protest to the people behind the bombing of the World Trade Center.”

Finally, apart from what the attorney general has arrogated to himself by decree, the PATRIOT Act lets Ashcroft detain immigrants indefinitely, without charges. A person may be held incommunicado for seven days. Then, if the attorney general deems that person a suspected terrorist or a threat to national security, the confinement may continue until the state decides otherwise. Six-hundred-forty-one foreigners are being held by the Bush administration, mostly on minor immigration charges. Emboldened by the PATRIOT Act, the administration now refuses to disclose any details on 548 of the people, other than nationalities and charges. And, government officials have even suggested that drugs and pressure tactics such as those employed by the Israeli interrogators -- in other words, torture -- ought to be used during interrogation.

“There is no doubt that if we lived in a police state, it would be much easier to catch terrorists,” Russ Feingold (D-Wisconsin), the Senate‘s lone dissenter, said in opposition to the USA-PATRIOT Act. “But that probably would not be a country in which we would want to live. Preserving our freedom is one of the main reasons that we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people.”


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