Tuesday, June 12, 2012
The following article originally appeared in the pages of Prism Magazine.
By William Fisher
There are people like Mitt Romney who say things like fear makes us stronger. They reason that, if we are motivated by fear, say, of the “war on terrorism,” fear may be the emotion that gets us galvanized, but if the result is the strongest military in the world, no one will attack us. Millions of Americans believe this.
But there are many other points of view. Prof. David Cole of the Georgetown Law School reminds us of one of them: Historically, fear has caused the US to restrict civil liberties and abuse human rights during wartime.
It is now more than a decade since the tragic attacks of September 11, 2001. There are many who contend that the dangerous erosion of our freedoms began that awful day and have only accelerated since then.
George W. Bush’s Attorney General, John Ashcroft, began the “war on terrorism” by having the FBI and local law enforcement round up hundreds of “Middle-Eastern-looking” men (many of them not Muslims but Sikhs) and jailing them without charges or access to lawyers or families.
From that point forward, the downward spiral of repression has gathered speed. The USA PATRIOT ACT was printed at 3:00am for a vote that took place at 11:00am that same morning. With the passage of this act, the U.S. federal government was given the ability to wiretap, conduct electronic surveillance, pry into private medical records, and to access financial records such as bank and credit card statements. They were even given the power to look into public library records.
On October 26, 2001, President George W. Bush signed the Patriot Act into law. For many Americans – those who are politically aware and politically active – life has never been the same since. America was on its way to becoming a quasi-police state. The Surveillance State!
For millions of other Americans – the uninformed, the uncaring, the ignorant – life-as-usual was often tinged with fear and anger at the inhumanity of the World Trade Center attacks. That fear and anger were fed by our government. It assured that our officials would get everything they demanded in the way of material and human and financial resources to vanquish this new enemy.
Or as linguistics professor George Lakoff puts it, “The word terror activates your fear. The war on terror is not about stopping you from being afraid, it's about making you afraid.”
September 11 and the USA patriot Act began a process that would strip American democratic values to the bare bone, threatening to leave only the shell of a once-great nation.
Many with this point of view believe it will be generations before these basic American values will be restored, if ever.
Scott Horton, lawyer-journalist who writes for Harper’s.com, told Prism, “ Participation in discussions and decision-making about vital national-security issues is a fundamental part of any democracy. Indeed, if the people don't have the right to some say about decisions to go to war or make peace, then no matter what it proclaims their country isn't really much of a democracy.”
He added, “Since 9/11, all aspects of national-security decision making have been progressively enshrouded in secrecy and the public's right to know about them and have some say about what is done have been radically reduced. The extremes this process has reached became clear last spring, when the president committed U.S. forces to extended hostilities in Libya with no public discussion, no Oval Office speech announcing he was doing it, and no consultation with or approval from Congress.”
He concluded, “It established war-making as a unique presidential prerogative--the president would consult his shadowy top-secret-clearance holding national security experts, but no one else really had anything to say about it. This is the most fundamental loss of civil liberties we have seen in the last several decades; it is a subversion of the very essence of our democracy.”
Bruce Fein, one of the country’s outstanding Conservative attorneys and a member of the Reagan Administration, is particularly alarmed about the Obama Administration’s claim to be able to use unmanned drones and other methods to kill America’s enemies, including US citizens, and its support of indefinite detention without charge or trial of allies of Al Qaeda.
He told Prism,”The right to life has been extinguished by President Obama’s unilateral and limitless power to assassinate any person he says is a national security threat. The right to liberty has been extinguished by the President’s NDAA authority to detain for life without accusation or trial any person he decrees is substantially aiding an associated force of Al Qaeda. These time honored rights tracing back to Article 39 of the Magna Charta of 1215 will be restored only when the political culture embraces liberty rather than domination, control, and a futile quest for a risk-free existence as the nation’s signature.”
A similar sentiment was voiced by Prof. Jonathan Hafetz of Seton Hall law school. “One of the most basic freedoms that we have lost since 9/11 is the principle that no person should be imprisoned on suspicion of wrongdoing without being charged and provided a fair trial. The continued practice of indefinite detention and the use of military commissions rather than federal courts to try terrorism suspects has undermined a proud tradition dating back more than 200 years and undermined respect for the rule of law. It was an unnecessary step and one that will come back to haunt us,” he told Prism.
Kevin Johnson, dean of the law school at the University of California, Davis, worries about another by-product of fear: immigration.
He told Prism, “I believe that the post-September 11 ‘war on terror’ had a serious impact on the civil rights of immigrants and certain groups of U.S. citizens. Initially, the U.S. government imposed immigration and other restrictions on Arab and Muslim non-citizens. The concern with ‘terrorism’ morphed into a call for tighter enforcement of the U.S./Mexico border, even though there have been no documented efforts by terrorists to come into the country through the southern border.”
He continued: “The result has been greatly increased border enforcement efforts, record levels of detentions, and record levels of removals of non-citizens from the United States. For fiscal year 2010, the Obama administration deported nearly 400,000 non-citizens, with well over 99% having nothing whatsoever to do with terrorism. Many of them were guilty of relatively minor crimes but were picked up by local police and turned over the federal authorities under programs like Secure Communities. Families have been torn apart as non-citizen parents have been deported and U.S. citizen children have remained in the country (or effectively deported with their parents).”
He adds, “The ‘war on terror’ in transforming the public view of immigration has made comprehensive immigration reform extremely difficult for Congress to pass, which has had negative impacts on Latino and Asian immigrants and their families in the United States.”
Another perspective is offered by Colonel Morris D. Davis, a faculty member at the Howard University School of Law, US Air Force officer and lawyer who was appointed to serve as the third Chief Prosecutor in the Guantanamo military commissions. He resigned from that position and retired from active duty in October 2008.
Col. Davis told Prism, “A real challenge would be to name a liberty that has not been diminished. Think back to before September 11, 2001: extrajudicial assassination of U.S. citizens by order of the President, warrantless wiretapping, indefinite detention without charge or trial, impunity for torture, the use of state secrets and qualified immunity to block an aggrieved party from his or her day in court, a government groping before you can board an airplane, profiling people and infiltrating groups because of religious beliefs; those types of things were unimaginable…or at least they were in America.”
He added, “We went from being the “land of the free and home of the brave” to a nation of the constrained and the cowardly.”
Prof. Peter Shane of the Ohio State and Harvard law schools, put it this way: "What seems to me to have been lost -- or at least severely compromised -- since 9/11 is a sense that government actors who violate civil liberties in the alleged name of national security ought to be held to account. In the wake of FBI and CIA abuses during the Vietnam Era, we had the Church Committee investigation, which not only created a clear historical record of those abuses, but also laid the groundwork for what became the Foreign Intelligence Surveillance Act.”
He concluded: "In the wake of the Bush Administration's seeming disregard for law, we have had no equivalent effort. As a result, we, as Americans, can hardly have an intelligent, democratic debate about whether and how our civil liberties have been compromised and what to do about it. It is our national complacency in the absence of accountability that I find most troubling."
Among the most comprehensive worry-lists comes from Chip Pitts, former head of Amnesty USA and currently a lecturer at Stanford and Oxford.
He spoke to Prism from South Korea. “I believe it’s clear that in response to the increasingly common global issues of growing inequality, persistent poverty, shrinking economic opportunity, evaporating job security, and corrupt money in politics used to buy power, governments around the world have taken exactly the opposite approaches of what they should have.”
He continued: “Instead of listening to and responding to the legitimate tragically taken the opportunity to diminish meaningful rights to peaceful dissent and protest (including by ridiculous “free speech zones” that completely neuter protest and by threats of arrest or imprisonment even for non-violent actions). I’ve now seen this in a number of countries around the world, including here in South Korea as well as the US and in Europe, applied against diverse movements such as Occupy, Los Indignatos, the Russian dissidents, the remnants of the Arab Spring, and now the Canadian students and their allies.”
Sounding a note of caution, he said, “Everyone should be extremely disturbed by this growing tendency of governments, following the US lead, to casually change laws to allow repression, to import weapons from theaters of war abroad for use by police departments and ‘joint task forces at home, and generally to kill or chill dissent by threats and use of force, arrest, application of the ‘terrorist label, and now even indefinite detention and assassination without due process of law.”
Pitts asks, “What will it take to reverse the losses? An even more effective, democratic, cross-coalition, grassroots US and global people’s ‘movement of movements’, powered by privacy and rights-respecting new media social networks which allow individuals and groups to support each other and come together to creatively use the framework of the Universal Declaration of Human Rights to strategize, take common action, and peacefully deploy both classic and new techniques of non-violence that attract ever-greater numbers to the cause of a more sustainable and just, rights-based economy and politics.”
“The movement will be driven mainly by the 99%, but will also include current members of the 1% who prefer peaceful evolution to violent revolution. It will either dramatically transform or more likely sidestep the existing establishment parties, and connect people from diverse countries and perspectives globally who are ready for change – and see the urgent need for change before we have another financial crisis and even more repressive cycles of chaos and repression.”
There are also virtually endless lawsuits by groups who charge the corruption of their rights of citizenship. One of them is Muslim Advocates, which filed an unprecedented lawsuit against the New York Police Department challenging its policy of targeting innocent American Muslims for surveillance based on their faith. It is the first lawsuit by victims of the NYPD's discriminatory spying program.
As documented by the Associated Press, American Muslims were targeted in New York City, as well as in towns, mosques, businesses, and college campuses throughout the northeast, including New Jersey. Records show that the NYPD took copious notes on the details of American Muslims’ daily lives. Examples of the NYPD spying program include photographing an elementary school for girls, eavesdropping on grocery store patrons, and photographing attendees of Friday prayers as well as their license plates.
Author Nick Meyer addressed yet another related issue. He wrote:
“The attorney-client privilege assuring confidentiality between the two parties is one of the most cherished rights of the American law system, but according to internationally recognized lawyer, author and professor Francis A. Boyle of the University of Illinois-Champaign law school, government agents violated that privilege in a jarring summer 2004 visit.
Speaking to The Arab American News, Boyle confirmed to Meyer that he was visited by two agents from a joint FBI-CIA anti-terrorist fusion center located about a 90-minute drive away in Springfield, Ill. in his office in Champaign, who attempted to persuade him to become an informant on his Arab American and American Muslim clients.
Meyer writes that Boyle repeatedly refused their requests to violate his clients' constitutional rights, only to find himself placed on the U.S. Government's terrorist watch list.
Boyle told Prism there are several no-fly lists and he was on all of them. He said he was told he would stay on the watch list forever until the agencies that "put me on there took me off."
The USA PATRIOT ACT was printed at 3:00am for a vote that took place at 11:00am that same morning. With the passage of this act, the U.S. federal government was given the ability to wiretap, conduct electronic surveillance, pry into private medical records, and to access financial records such as bank and credit card statements. They were even given the power to look into public library records.
On October 26, 2001: President George W. Bush signed the Patriot Act into law.
In the early days after the attacks, we were constantly reminded that America is not only the land of the free, but also the home of the brave. On the evening of attacks, President Bush addressed the nation, and stated, “Our country is strong. Terrorist acts can shake the foundation of our biggest buildings, but they cannot touch the foundation of America.”
Which caused the American Civil Liberties Union (ACLU) to remark: “We could not have imagined that in the decade to follow, our country would engage in policies that directly defied American values and undermined our Constitution. We lost our way when, instead of addressing the challenge of terrorism consistent with our values, our government chose the path of torture and targeted killing, of Guantánamo and military commissions, of warrantless government spying and the entrenchment of a national surveillance state, all of which now define the post-9/11-era. That is not who we are, or who we want to be.”
Ten years later, our nation still faces the challenge of acting, not out of fear, but out of courage and confidence.
To quote the ACLU again, “The way forward lies in decisively turning our backs on the policies and practices that violate our greatest strength: our Constitution and the commitment it embodies to the rule of law. It is that strength which is the best rejoinder our nation has to violence and to those who advocate it. Liberty and security do not compete in a zero-sum game; our freedoms are the very foundation of our strength and security. Consistent application of the law is what ensures that practices don't change simply because of a change in the White House.”
This does not suggest that we should simply let terrorists – foreign or home-grown – run amok in our country. These miscreants must be caught and held to account. But a smarter stragegy rather than our current kitchen sink approach might enjoy a more substantial level of success.
Our choice is not between safety and freedom; in fact it is our fundamental values that are the very foundation of our strength and security.
Quoting George Lakoff again: “The word terror activates your fear. The war on terror is not about stopping you from being afraid, it's about making you afraid.”