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DEFENDING CIVIL LIBERTIES AGAINST
THE GOVERNMENT’S “WAR ON TERRORISM"
by Robert D. Sutherland © 2003
(A speech delivered at the Unitarian Universalist Church, Bloomington, IL, March 9, 2003. Published through printed distribution on that occasion, and subsequently.)
1. INTRODUCTION. I‘m honored to be asked to speak. This is the second time I’ve spoken here on this topic; I was a panelist one year ago, on Feb. 24, 2002. What concerned me then concerns me now. But since then, things have gotten much worse.
2. TOPIC. I wish to share my perceptions regarding the effects that the “War on Terrorism” is having on the Constitutionally-guaranteed civil liberties which are one of the defining characteristics of our democracy. I want to discuss the potential consequences of those effects on our national life. I want to suggest what should be done by you, by me, by all of us, to preserve our democratic institutions which are currently under threat of being dismantled by our own government.
3. HANDOUT. I have prepared a handout for you to take home which documents the fairly general statements I will be making. To go through a detailed recital of what’s been happening would take an hour rather than the 20 minutes I’ve allowed myself. You have the whole summary in your hands and can study it at leisure. By keeping my comments brief, I hope to allow time for you to ask questions and participate in discussing these matters.
4. TERRORISM. The possibility of terrorist attacks certainly constitutes a threat and a real danger against which we should protect ourselves. The current Administration has made “Homeland Security” a high priority. And because the diffuse nature of the terrorist threat makes it difficult to guard against, the Administration feels that unique and exceptional methods are required for our protection. Accordingly, a number of measures have been enacted or proposed, some as laws, some as executive orders, some as discretionary and regulatory policies—most of the initiatives originating the the Executive Branch (the Attorney General’s Office, the Defense Department, the Immigration and Naturalization Service, the FBI). These are summarized in your handout.
5. ENCROACHMENT. However, in the name of combatting terrorism, the current Administration is actively engaged in promoting laws and implementing policies which undermine the civil liberties enunciated in the Bill of Rights and Fourteenth Amendment; these civil liberties were designed specifically to protect citizens’ freedoms against governmental encroachments. The government is encroaching upon these Constitutional amendments, systematically dismantling the safeguards they provide for our cherished freedoms.
It may be that some of the Administration’s officials truly feel that terrorism is such a threat that civil liberties are subordinate to physical security.
It may be simply that some are ignorant, and insensitive to the importance of the Bill of Rights and Fourteenth Amendment in defining our unique democracy.
It may be that, for whatever personal or ideological reasons, some officials are callously indifferent to them.
And, on the part of some, it may be that the encroachments are by conscious design.
While acknowledging that terrorism is clearly a danger, I feel that our own government is by far the greatest threat to the democratic principles upon which the United States was founded.
These initiatives, these complex laws and regulations, these planned computer systems for generating total information files on all U.S. citizens, these innovative devices for arresting people on suspicion and holding them without charge or judicial review for indefinite periods, these summary deportations, these elaborate schemes for mass surveillance of citizens, including all electronic communications, these moves to have agencies and processes in the Executive Branch operate in secrecy without Congressional oversight—these were planned, discussed, orchestrated, and promulgated by large numbers of people in a relatively short span of time.
I think we are witnessing what is, in effect, a coup which is disrupting the Constitutional checks and balances of the three branches of government in favor of the Executive, is creating a total surveillance police state where government works in secrecy and rules through fear, intimidating people through unpredictable Red and Yellow Terror alerts, the onus of being thought unpatriotic if one dissents or criticizes, and the danger of being suspect or deemed guilty because of personal associations. Fear produces a chilling effect on expression, leading to self-censorship, and a chilling effect on association, where caution and distrust replace networking and community.
These will be the consequences if the “War on Terrorism” is allowed to undermine and destroy the civil liberties which are the pillars of our democratic society. I am far more afraid of our government’s actions in the name of “Homeland Security” than I am of a potential terrorist threat. There are some encouraging signs that some Senators and representatives, some Federal judges, some think-tank pundits, and some journalists, both liberals and conservatives, are getting frightened also, and are speaking out and taking actions to slow or stop certain of the initiatives launched by the Administration. Now, what can you, and I, and all of us do to preserve our civil liberties? (See ETHICAL RESPONSES TO TERRORISM at the end of this handout.)
Endangered by the Administration’s “War on Terrorism” are civil liberties pertaining to:
PRIVACY
DUE PROCESS
FREEDOM OF EXPRESSION
FREEDOM OF ASSOCIATION
EQUAL JUSTICE UNDER THE LAW
Jeopardized in the Bill of Rights are Amendments 1, 2, 4, 5, 6, 8, 10 and also Amendment 14.
FIRST AMENDMENT. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.
SECOND AMENDMENT. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
FOURTH AMENDMENT. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
FIFTH AMENDMENT. No persons shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
SIXTH AMENDMENT. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.
EIGHTH AMENDMENT. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
TENTH AMENDMENT. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
FOURTEENTH AMENDMENT. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
COMPARABLE SITUATIONS FROM OUR NATION’S PAST:
1798. Alien & Sedition Acts: prosecutions for dissent, for criticism of government, for opposing enforcement of Federal law (John Adams, President); two-year time limit; lapsed under Jefferson in 1800.
1861-64. Lincoln’s suppression of Copperhead dissent; closure of newspapers; suspension of habeas corpus.
1882. Chinese Exclusion Act (Chester Arthur, President); immigration halted.
1917-18. Espionage and Sedition Acts: Prosecution of dissent and of opposition to US entry into World War I; mass arrests and deportations of foreign radicals and trials of radical labor union members (IWW); Radical Socialist leaders sentenced to prison for making anti-war statements (Kate Richards O’Hare, Rose Pastor Stokes, and Eugene V. Debs). Coercion of people to buy Liberty Bonds; censorship.
1919. Palmer Raids, targeting “anarchists”, socialists, Bolsheviks; mass arrests, wiretapping,seizures of documents, detentions, deportations; curtailment of eastern European immigration (A. Mitchell Palmer, Attorney General; Woodrow Wilson, President)
1942. Roundup and internment in concentration camps of Japanese Americans and Germans (both pro- and anti-Nazi). In Executive Order 9066, Franklin Roosevelt empowered the Army to arrest 110,000 West Coast Japanese Americans without warrants or indictments for immediate transport to prison camps.
1947-1953. Anti-Communist hysteria: the (McCarran) Internal Security Act, House Un-American Activities Committee hearings on Hollywood’s film industry (Parnell Thomas), imprisonment of citizens who did not comply with the Committee's demands; Joseph McCarthy’s hearings in the US Senate; chilling effect on association; black-listing; ruined careers. (Presidents Harry Truman and Dwight Eisenhower)
1956-1972. THE FBI’S Counter Intelligence Program (COINTELPRO); mass illegal surveillance of individuals, groups, and organizations; harassment and disruption of the Civil Rights Movement, the Anti-Vietnam War Movement, and activities of other groups deemed to be a threat to order and the status quo; use of infiltrators, agent provocateurs, disinformation, smear campaigns. Surveillance files collected on thousands of law-abiding individuals and groups. (J. Edgar Hoover, Director of the FBI; Presidents Dwight Eisenhower, John F. Kennedy, Lyndon Johnson, Richard Nixon)
2001— . The USA PATRIOT [Anti-Terrorism] Act {HR 3162; Public Law 107-56}
In late October 2001, with no exhaustive committee hearings and virtually no debate, this new Federal law was enacted extremely rapidly in a climate of anger and fear; in the House, only 66 representatives voted against it; in the Senate, only 1—Russ Feingold. The Act gives exceptional powers to the President and the Attorney General, with very little Congressional oversight built in. It empowers the government to arrest and detain large numbers of people indefinitely on the basis of suspicion alone and to keep hearing procedures secret; it allows people who have had associations with suspected terrorists to be regarded as suspects themselves; it authorizes the overt ad covert surveillance of ordinary citizens and organizations, including the use of roving wiretaps, clandestine searches of property, scrutiny of financial records, and monitoring of e-mails and tracing of library and Internet use; it makes possible the confiscation of personal papers and computer equipment on the basis of hearsay and allegations of suspicious activity.
The granting of such exceptional powers to the Justice Department and its investigative branches, to the Secret Service, the Immigration Service, various governmental regulatory agencies, and to Federal, State, and local law enforcement without the safeguards of meaningful Congressional or public oversight creates the potential for abuse. The main mischief will be in the definitions employed, the interpretations, the evolving scope, and the applications of the Act’s provisions by those empowered to enforce them. The likelihood is that, in order to be on the “safe” side, those empowered to use and enforce the law will be inclined to interpret its provisions and apply its sanctions broadly, not narrowly. This tendency can only be reinforced by media reports of polls indicating that, in order to be “secure” from terrorists, 70% of American citizens are willing to give up some of their civil liberties.
History provides ample evidence that under such circumstances abuses will occur. The abuses may stem from ignorance, from excessive zeal, from fear, from hate, from racial and xenophobic prejudice, or from the personal ideologies and agendas of the people empowered to enforce the law.
Some disturbing things already are afoot. Over 2,000 people, mostly non-citizens, have been arrested and detained as suspected terrorists or persons having possible knowledge of terrorist activity. In many cases, their identities and charges remain unknown because of secrecy in the proceedings. Some have been released, but others may be held in custody indefinitely, or deported for reasons never made public. When everything is sealed off from public view, it’s difficult to know whether abuses are occurring.
Wishing to limit the information available to press and public under the Freedom of Information Act, Attorney General Ashcroft has sent a directive to all government agencies urging them to provide FOIA petitioners as little information as possible with the assurance that his office will back them in their actions.
Moreover, Ashcroft wants to officially reinstate the FBI’s license to spy on citizens and domestic organizations, unleashing a replay of J. Edgar Hoover’s COINTELPRO. (In passing the USA PATRIOT Act of 2001, the Senate insisted that a four-year limit be put on wiretapping and electronic surveillance provisions, with review required for their renewal. The President and Attorney General acquiesced to this compromise for the bill to pass, but it wasn’t what they wanted. They wanted the wiretapping and electronic surveillance provisions in perpetuity.) (Why did they not want a four-year duration with review?)
Definitions of familiar words are becoming slippery. Prisoners taken in the Afghanistan War and transported to Guantanamo Naval Base in Cuba have been defined as ‘illegal combatants’ rather than as ‘prisoners of war’ with the consequence that they do not have to be treated under the humane provisions accorded prisoners of war by the Geneva Convention. Unilaterally, the President has decreed that non-citizen terrorists can be tried by military tribunal, where proceedings are secret, there is no civil appeals process, and death can be the penalty.
The definition of ‘terrorist’ remains sufficiently vague as to be expandable; the danger, of course, is that dissent, criticism of government policy, and opposition to aspects of the War on Terrorism might themselves be classified as subversive, unpatriotic, “un-American” threats to national security.
On December 6, 2001, in his testimony before the Senate Judiciary Committee, Attorney General Ashcroft said: “We need honest, reasoned debate; not fear mongering. To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists—for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends. They encourage people of good will to remain silent in the face of evil.” [Italics are my addition.]
Under the terms of the USA PATRIOT Act of 2001, people who aid and abet terrorists, or provide them support, are themselves to be considered terrorists.
In 2002, President Bush attempted to create Operation TIPS (Terrorism Information and Prevention System), a program which would have increased clandestine surveillance of all citizens by recruiting one million volunteers—including letter carriers, utility workers, cable installers, etc. whose jobs allow them access to private residences—to report suspicious activities, thus allowing people’s homes to be secretly searched without cause or warrants. This could result in unreasonable and unwarranted charges against innocent people, or getting their names entered onto secret lists. In approving the “Homeland Security Act” Congress did not authorize TIPS, but a version of it is being reintroduced in Ashcroft’s draft of the “Domestic Security Enhancement Act” which will greatly expand the surveillance provisions of the USA PATRIOT Act of 2001.
In late 2002, the Immigration and Naturalization Service (INS) decreed that all males age 16 or over who were last admitted as “nonimmigrants” and who are citizens or nationals of certain listed countries must report for registration in person, to be interrogated under oath, photographed, and fingerprinted. Penalties for failure to comply can lead to deportation. The countries listed are: Iran, Iraq, Libya, Sudan, Syria, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. This process has resulted in hundreds of people being detained, arrested, and deported for minor immigration infractions, and is clearly a case of discriminatory profiling. Various deadlines have been set for specific groupings of countries, and all persons affected are to have registered by March 26, 2003.
In late 2002, the development of the Defense Department’s Total Information Awareness program (TIA) became publicly known. The TIA program would allow the government to collect and store information on every person in the U.S. through a computerized data-mining system which would access people’s communications (telephone use, e-mails, and web searches), credit card use and financial records, purchases, prescriptions, medical histories, travel. The data would be scrutinized for patterns to determine if the person fits the profile of “terrorist.” The person in charge of the TIA program at the Pentagon is former admiral John Poindexter, a key player with Oliver North in the Iran-Contra scandal in the Reagan Administration, who was convicted of lying to Congress, obstructing a Congressional investigation, and destroying documents. In early 2003, Congress stopped the funding, and Senator Feingold introduced a bill called the “Data-mining Moratorium Act” would would terminate such activity and halt any similar program of the Department of Homeland Security until Congress authorizes such activity.
In February, 2003, the Transportation Security Agency announced the implementation of the Computer Assisted Passenger Pre-screening System II (CAPPS II), which will be pilot tested at selected airports in March, 2003. The program will conduct secret background checks on all airline passengers, labeling them respectively as a “green,” “yellow,” or “red” security risk. “Red” would be reserved for people on terrorist watch lists. “Yellow” is not well defined; those people would be subject to extra-intensive security screening. “This system threatens to create a permanent blacklisted underclass of Americans who cannot travel freely,” said Katie Corrigan, ACLU Legislative Counsel. “Unfortunately, history suggests that the government will be capricious, unfair and politically biased in deciding who to stamp as suspect. Anyone could get caught up in this system, with no way to get out.” Similar in concept to the Pentagon’s TIA, the CAPPS II program would collect and store information on people’s credit card and consumer-purchase data, financial records, housing information, communications and Internet use, law enforcement and legal records. A “yellow” code in a person’s file could be shared with other government agencies at the Federal, State, and local level, with intelligence agencies such as the CIA, and with foreign governments and international agencies—all of which could use them for various purposes, including employment decisions and the granting of government benefits. Says Barry Steinhardt, Director of ACLU’s Technology and Liberty Program, “Once the infrastructure for a system of government files and security ratings on American citizens is built, it won’t be limited to air transportation for very long. Nothing like it has ever been done in this country.” Apparently George Orwell’s Big Brother was twenty years early.
In February, 2003, a draft version of the Justice Department’s projected legislation called the “Domestic Security Enhancement Act” (or, PATRIOT Act II) became public. This draft greatly broadens the provisions of the PATRIOT Act of 2001. It removes checks on government power by making it easier to initiate surveillance and wiretapping. It shields Federal agents from criminal prosecution if, while engaged in illegal surveillance without a court order, they are following orders of high Executive Branch officials. It broadens the definition of ‘terrorism’ to make surveillance of protesters easier. It expands the scope of national search warrants so they don’t have to meet even the broad definition of terrorism in the PATRIOT Act of 2001. It allows government a presumptive authority to arrest those whom it suspects of terrorism and hold them without bail in pretrial detention. It gives the government secret access to credit reports and other sensitive information without consent and without judicial process, allows for the sampling and cataloguing of innocent Americans’ genetic information without court order and without consent, and permits sensitive personal information about U.S. citizens to be shared with local and State law enforcement without any connection to anti-terrorism efforts. It terminates court-approved limits on police spying, which were initially put in place to prevent McCarthy-style persecution based on political or religious affiliation, and permits searches, wiretaps, and surveillance of U.S. citizens on behalf of foreign governments. It provides for summary deportations without evidence of crime, criminal intent, or terrorism of persons whom the Attorney General says are a threat to national security. It further criminalizes association by broadening the crime of “providing material support to terrorism”, even if support is not given to any organization classified as “terrorist.” And, most disturbing of all, it gives the Executive Branch the power to strip native-born citizens of their rights of citizenship if they provide support to unpopular organizations labeled as terrorist by our government, even if they support only the lawful activities of such organizations. Stripping away a person’s citizenship in effect makes the person a stateless “alien”, subject to deportation or indefinite imprisonment in the U.S. as an “undocumented alien.” Ashcroft has said that this draft is not legislation to be proposed, but only an internal document for discussion among his staff.
These are some of the governmental attacks on the Bill of Rights and Fourteenth Amendment that have been occurring. They raise some fundamental questions.
What price “security”? If the cost entails giving up the liberties and openness that define the United States as a democratic society, what has been gained? More to the point, what has been lost?
A key danger is that we will move from a relatively open society, with citizens having knowledge of governmental actions, to a closed society, where government works in secrecy. Even if some (few) provisions of the USA PATRIOT Act of 2001 are required to be reviewed after a period of four years, what of that? Four years can witness a great deal of damage to the Constitutional fabric and the freedoms that have been the defining tenets of American democracy. Once Constitutionally-guaranteed civil liberties are gone, it will be very difficult to get them back.
It should remembered that “Necessity” has always been the plea of tyrants; that tyranny can come through enactment of laws as well as through usurpation. People should be skeptical and cautious when draconian measures are “justified” as being “necessary” to achieve “the greater good.” When someone in authority says, “We have no choice but to...” and “You’re either for us or against us,” I would urge that the ethical and truly patriotic response is to question those statements, the depth of analysis behind them, and what motives and agendas they are being used to serve.
The text of HR 3162 (USA PATRIOT Act of 2001) may be read at the following website: http://thomas.loc.gov/
Analysis of the “Homeland Security Enhancement” raft by Timothy H. Edgar, ACLU Legislative counsel, a document on which I relied for my summary, may be found on the following website: ACLU: http://www.aclu.org (a good site for Constitutional issues)
ETHICAL RESPONSES TO TERRORISM REQUIRE THAT WE AS CITIZENS:
Not give way to panic, and not allow fear to shape our behaviors;
Not allow our internal priorities and values as a nation to be deflected or debased;
Avoid ethnic, racial, religious profiling, stereotyping, and prejudice; continue working locally to improve race relations, and with the schools and other institutions to maintain a commitment to and encouragement of diversity;
Defend First Amendment protections for freedom of association and expression, including dissent, peaceful demonstrations, and criticism of government policy;
Insist that, while terrorism is fought, governmental leaders and law enforcement officials honor and preserve Constitutional civil liberties contained in the Bill of Rights and Fourteenth Amendment; and if they do not do so, challenge them openly and, if necessary, take them to court for violations, and/or vote them out of office;
Become as well informed as possible, and stay vigilant; act individually in speaking out and contacting congressional representatives and other officials to make our views known on pending legislation or programs and join in solidarity with others for collective action.
Robert D. Sutherland, American Civil Liberties Union (Central Illinois Chapter)
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