Wednesday, November 02, 2011

Liberty Lost

William Fisher

As the country enters its second post-9/11 decade, I asked renowned human rights crusader Chip Pitts about what civil liberties/human rights we’ve collectively lost in the so-called “war on terror” as what was previously legal has now become criminal.

Here’s what he said:

“Virtually all of our most fundamental rights and liberties have been affected for the worse, with little or no awareness among the populace at large. The ignorance is no accident, but the product of conscious mendacity, manipulation and complicity among the leading political parties, all branches of government, defense contractors and the entrenched military-industrial-surveillance complex, and mainstream media – all of which (with occasional notable exceptions) are tragically pulled by various perverse incentives in the direction of trying to out-do each other in pandering to the basest fears and instincts of the American Body Politic”.

He added: “A huge number of legal violations have occurred, ranging from the momentous (illegal war) to the mundane (failure to fully notify the appropriate committees of Congress about the illegal warrantless surveillance as required under the National Security Act), but I’ll limit myself to highlighting the most significant to the rights of the American public.”

How has the ‘War on Terror’ impacted the Rule of Law?

“The first category of infringements I would place under the general rubric of undermining the Rule of Law. Although all the regressions could be put in this category, some strike more than others at the very concept itself. If the Rule of Law means anything, it means that everyone is subject to the same rules of general application and that those rules are fairly applied: a “government of laws, and not of men” as founding father and American President John Adams famously put it.
“Yet we now have a much more arbitrary system of justice, in which people can be deemed second-class citizens and have their assets seized, have their travel and other rights burdened, and be stigmatized, imprisoned, or even killed merely by essentially unreviewable executive fiat.”

That’s the net effect of new approaches including the following, all of which impose serious burdens without the traditional checks and balances and independent reviews previously enshrined in law:

· Asset Seizure section 106 of the Patriot Act, which has led for example to the closure on legally dubious grounds of nearly all of the major Muslim charities in the United States, among other seizures occurring merely upon executive branch “designation”,

· the notoriously error-ridden “watch lists” and “no fly” lists which have thrown certain innocent individuals into a Kafkaesque Hell from which there’s no easy escape, setting a precedent for further pernicious “government by watch-list” that extra-legally allocates benefits and burdens,

· the TSA bodyscanners, which don’t work to detect the plastic explosives which were their supposed reason for being, as noted by sources as diverse as the nonpartisan Government Accountability Office, and CNN’s Dr. Sanjay Gupta – but have been shown to pose risks to privacy and health, disproportionately burdening vulnerable populations including children, the elderly, religious objectors, and the immune-compromised who risk serious harm from the cumulative effects of long-term radiation exposure,

· the reality of profiling on racial, religious, ethnic, and national origin grounds, despite official rhetoric and policies against it, facilitated by reliance on a (likely unconstitutional) broad exception relating to national security and border-related investigations,

· the risk that anyone could be subject to the military commissions regime, a novel secondary justice system in which the executive branch is judge, jury, and executioner and in which a person may find themselves arbitrarily placed without principled distinction simply because they’ve been labeled a “terrorist” or “enemy combatant” (thus US citizen Jose Padilla was shifted at the last minute from the military to the civilian regime after years of being imprisoned, tortured, and denied counsel as an “enemy combatant,” and shoe bomber Richard Reid was tried in civilian court 400 other terrorists, but others find themselves subjected to the lower evidentiary and justice standards of the military regime, without reasoned explanation),

· Assassination (defenders call it legal “targeted killing”) even of US citizens off the battlefield, without due process of law, without lawyers or the right to confront the evidence or witnesses against them, without the right to trial by jury or any of the other protections guaranteed by the US Constitution.
Haven’t we also experienced specific infringements of fundamental rights crucial to our national identity and fundamental values?
“We certainly have. Even a cursory review of the Constitutional protections that have been compromised illustrates the point. For example:

· The First Amendment rights of freedom of speech, press, association, assembly, religion, and petitioning government for redress of grievances, all newly under pressure from widespread warrantless surveillance, secret datamining of private data, surreptitious infiltration of peaceful protest and solidarity groups, President Obama’s increased prosecution of supposedly protected whistleblowers and leakers, and changes in the law allowing criminalization and chilling of such speech and association promoting peace and human rights under the Patriot Act’s “material support” provision (which criminalized “expert advice and assistance” and was upheld in the US Supreme Court’s closely divided, erroneous decision Holder v. Humanitarian Law Project),

· The Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits), Patriot Act provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target), section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere “relevance” standard and probably also being interpreted to allow a secret datamining program some Senators say would “stun” and “anger” the US public if revealed), section 213 (allowing sneak and peek” secret black bag job searches of homes), and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).

· The Fifth Amendment rights to due process of law has been infringed not only by the extreme measure of assassination noted above, but also by increasingly routine arbitrary changes of the rules—contrary to President Obama’s promises -- so as to block accountability for other violations of fundamental rights, as with the use of the state secrets privilege, standing, and other procedural doctrines to completely immunize those who labeled citizens like Jose Padilla “enemy combatants”, or those who tortured, participated in extraordinary rendition (kidnapping and “disappearing” people) to places of torture, and planned and conducted warrantless surveillance,

· The Eighth Amendment rights to freedom from torture and cruel, inhuman, and degrading treatment (also protected by an international treaty, the Convention Against Torture, signed by Pres. Ronald Reagan, and by federal statute), which has been rhetorically embraced by both the Bush and Obama administrations but ignored in practice (especially by the former, but also allegedly to a lesser extent even by the latter, in cases such as those of Bradley Manning, Gulet Muhammed, and in Afghanistan and Iraq).

Have these major infringements spilled over into the routine law enforcement and justice systems of the United States?

“Some of us had naïve expectations that these developments wouldn’t further affect ordinary citizens. We all know that legions of ordinary citizens already have been harmed and had their privacy and liberties infringed by National Security Letters and other Patriot Act provisions, as decades of gradual progress in expanding rights have been undermined and generations who have fought for hard-won liberties have seen both their liberty and their security dramatically reduced this past decade. This category includes:

· The increasing militarization of domestic policing and intelligence gathering, as seen in such developments as the Pentagon’s new Northern Command, the Joint Special Operations Command (JSOC) involvement in domestic intelligence and counterterror efforts, Pentagon involvement in infiltration of domestic peace and anti-war groups, increasing deployment of weaponized drones within US borders as well as at the borders, and the surveillance, biometric, and other equipment and weapons defense contractors have imported from Iraq and Afghanistan into American streets, all as described (among others) by Dana Priest and Bill Arkin in their Top Secret America Washington Post series and book, and all in great tension with our Constitutional regime and historic bias against domestic deployment of military forces as reflected in Posse Comitatus and other laws,

· Although sold as temporary, emergency counterterror measures, these laws and approaches such as the Patriot Act have only become more permanent and used overwhelmingly for routine, domestic law enforcement (such as drug cases and minor offenses) – as repeatedly confirmed in the government’s own reports, such as the recent one described by the ACLU pertaining to “sneak and peek” home search warrants -- again contrary to the basic premises and fundamental laws of our democratic republic and its origins in a Declaration of Independence, Constitution, and Bill of Rights arranged precisely against such arbitrary and unconstrained power.

· The way the laws have, as described above, been used to immunize high officials and the powerful from accountability of any type (no torture victim has received his or her day in US court!) at the very time laws for lesser violations have resulted in the United States carrying the dubious honor of having imprisoned more of its population, in both absolute and percentage terms, than any other nation in the world. This discrepancy remains a substantial driver for the Occupy movement and can be expected to continue to drive social instability, protest, and conflict unless and until the gaps in transparency and accountability are remedied and again realigned with the original, sensible Constitutional vision and allocation of rights and powers.
Chip Pitts teaches human rights and corporate social responsibility law at Stanford Law School and Oxford University, and serves as a volunteer activist for a number of organizations and initiatives seeking to advance human rights, civil liberties, social justice, and economic development.

Egypt’s Democracy: A Sometime Thing

By William Fisher

As Egypt’s military rulers were pardoning 334 of the thousands being held for military trials, the generals may be preparing to administer the coup de grâce to Egypt’s nascent democracy.

The Supreme Council of the Armed Forces (SCAF) has drafted a set of "supra-constitutional" principles that would grant the military outsized influence in writing a new constitution, including the power to object to any article in the new constitution, and keep the armed forces' budget confidential.

Messages of strong condemnation have greeted the move from numerous political forces. The April 6 Youth Movement, Al Wasat Party, Mohammed ElBaradei and the Freedom and Justice Party (FJP) of the Muslim Brotherhood, all have attacked the new proposals as a way for the SCAF to avoid accountability.

The drafting of the “supra-constitutional” amendments is seen as simply one more instance of the Army’s inability to govern in a democratic context. After a honeymoon period brought on because the Army declined to attack the protesters in Tahrir Square last January, the military’s credibility has fallen precipitously.

That downward trajectory has been hastened by a series of SCAF’s self-inflicted wounds. It arrested an estimated 12,000 demonstrators and brought them to trial before military courts. It has also been vilified for failing to lift the so-called Emergency Laws in effect for 30 years under Mubarak. These laws give the police and the security services wide latitude to arrest and detain without probable (or any) cause, and to try lawyerless defendants who are often unaware of the charges against them,

The use of military courts – harkening back to the dark years of the Mubarak regime – has brought noisy and continuous opposition from political parties and social movements of all persuasions.

In the period preceding and following the fall of Mubarak on Febrnary 11, army military police rounded up thousands of peaceful demonstrators and threw them into prisons. There is ample credible testimony regarding their treatment in custody: The women were given “virginity” tests; the men were tortured and there were a number of deaths in detention.

This week’s pardon of a few hundred prisoners seems bizarre, given the total in custody. No explanation was forthcoming regarding how these prisoners were selected to be freed.

On the council's Facebook page, it said the decision reflects its belief in the importance of communication with Egyptian people and the revolution youth. The names of the detainees to be pardoned will be announced later, the statement added.

Meanwhile, Egypt’s “other” government – civilians who have zero independent power and merely put a civilian face on military decisions – have been trying to make the generals look as good as possible.

Deputy Prime Minister Ali Al Selmi held a meeting with over 500 political figures to discuss the constitutional draft. However a number of parties, including the FJP and Salafi groups, boycotted the meeting to protest its inclusion of many former National Democratic Party members.

Responding to the new amendments, the Muslim Brotherhood demanded the dismissal of the entire government if it "continues on this course of action."

Criticism of the SCAF grew even more heated recently after the council
detained activist Alaa Abd El Fattah for 15 days pending investigations into
charges he humiliated the armed forces. The young blogger has refused to speak to military prosecutors or stand trial on the grounds he should be tried in a civilian court, according to the newspaper, “Al-Masry Al-Youm.”

The Project on Middle East Democracy, ordinarily a reliable source, reported that “Thousands gathered on Tuesday in Cairo and Alexandria to demonstrate against the detainment of prominent blogger Alaa Abdel Fattah as well as on going military trials to which civilians are subjected. They also expressed support for Abdel Fattah's decision to refuse questioning by the military prosecution.

Protests in Cairo arrived at the prison where Abdel Fattah is currently being held, while in Alexandria demonstrations were held outside a military headquarters where chants condemning military trials could be heard.

Rights groups, including Amnesty International, as well as presidential hopeful Mohammed Saleem Al Awaa, have all denounced the arrest and demanded Abdel Fattah's immediate release.”

Egyptian Prime Minister Essam Sharaf said in a conference address that the armed forces are trying to transfer power to an elected civilian administration. The armed forces are protecting the current transition period, Sharaf added.

“Egypt is undergoing political developments that aim to achieve more democracy, transparency, and an improved standard of living.”

He said the government is working to make structural reforms to provide more work opportunities, particularly for low-income people. Rights groups and activists have accused SCAF of mismanaging the transition period and making unilateral decisions without consulting political forces.

Farid Zahran, member of the Egyptian Social Democratic Party, said, "The main issue that triggered heated argument was the secrecy clause protecting the military's budget. It would have been acceptable if they suggested that some items are confidential, but the military budget must be made public."