Hundreds of people held without charges for months at a time, secret warrants issued for library records, U.S. citizens snatched by federal agents on U.S. soil and held as "enemy combatants"-- waves of repression since September 11 bring back memories of intense earlier repression--the Palmer raids and mass deportations of the 1920s, the concentration camps for Japanese Americans during WW2, McCarthyite witchhunts of the 1950s, and COINTELPRO in the 1960s.
Many parallels come to mind. Nonetheless, some truly unprecedented changes are under way today in the U.S. legal system. Constitutional principles that were supposed to be bedrock to the U.S. system of justice are being jettisoned in key respects--including due process, probable cause, right to counsel, and judicial independence.
Limits placed on law enforcement spying on political activities in the 1960s and '70s have been lifted, and detention without charges, massive surveillance without criminal suspicion, and prosecutorial overreaching are now facts of life in America.
Non-citizens have been the first targets. The government has thrown overboard the long-standing principle that non-citizens in the U.S. generally have the same legal rights and protections as citizens (except for the right to vote and laws governing their immigration status). And then, the "logic of the logic" starts to extend the legal changes to citizens as well.
The single largest new piece of legislation so far is the USA Patriot Act. It was passed barely six weeks after September 11 in an atmosphere of fear and intimidation, as the anthrax scare forced many in Congress out of their offices.
The USA Patriot Act breaks down old walls between domestic and foreign intelligence, treating the "homeland" as another battleground of an international war. It puts the powers of the Foreign Intelligence Surveillance Act (FISA) at the disposal of domestic law enforcement agencies. It further undermines the Fourth Amendment protection against unlawful search and seizure, along with the distinction between law enforcement and political suppression. Everything from our e-mail traffic, to the videoed images of our daily life, to formerly secret grand jury testimony is now available to local cops and the CIA alike.
The Justice Department's June 2003 report to Congress on its use of these powers revealed that 10 FBI field offices have monitored mosques in their jurisdictions. It did not reveal how many agents have now infiltrated how many religious communities. Information on other kinds of surveillance done under the USA Patriot Act remains classified, so we don't know any details of them either.
While the people are opened up to scrutiny, the government acts in secret. The government has the power to prosecute anyone who reveals what records government agents are taking or who they're targeting. Secret warrants, secret detentions, secret court hearings, evidence secret even from the defendants--the list is long and growing.
The alleged thoughts inside people's heads are now an element defining how the state can prosecute various actions.
"Domestic terrorism," as defined in the USA Patriot Act, is a violation of any criminal statute if that violation is "dangerous to human life" and "appear[s] to be intended to influence the policy of a government by intimidation or coercion." So intentions are key, and it's the government who'll determine what those intentions are.
A wide range of activities could be seen as attempts to influence government policy, including militant protests, strikes, and civil disobedience. As a result, "terrorism" essentially means whatever the government says it means.
People who plan or participate in determined protest actions could also become targets of the spying and surveillance sanctioned by the USA Patriot Act. .
The crime of "harboring a terrorist" is defined in the USA Patriot Act as a failure to notify the FBI if you have "reasonable grounds to believe" that someone is about to commit a terrorist offense.
These two new crimes, "domestic terrorism" and "harboring a terrorist," will not expire automatically -- they are permanent features, blatantly injecting the government's evaluations of the defendant's political motivation into the Federal criminal code. And there is no statute of limitations on prosecution; a person can be charged and tried at any time for allegations of past actions.
The Patriot Act opens up huge categories of financial records to government surveillance, from credit reports to bank accounts.
The secretary of the treasury can now issue his own list of "suspected terrorists" whose transactions banks are required to monitor and report back on to the government, all without the knowledge of the targets.
The accounts of non-profit and charitable organizations are singled out as particularly important to monitor.
All assets that the government claims will be used to support terrorist activities can be seized under the Patriot Act, based at most on probable cause that a crime had been or was about to be committed and without an actual criminal conviction .
This can be a powerful tool for shutting down a wide range of political and humanitarian organizations, especially those with international ties
In December 2001 the government seized the assets of the three largest Muslim charities in the U.S.- -without any criminal charges, without a judge's review, without a single "day in court."
The Patriot Act amended the International Emergency Economic Powers Act to give the government the right to seize assets "pending investigation" of any foreign person or organization that the President determines has "planned, authorized, aided or engaged in" hostilities against the U.S.
The three Muslim charities were deemed to fit that description, even though they were based in the U.S., because they were involved in charitable projects overseas. Trucks pulled up to their offices and hauled away every stick of furniture, every piece of paper and every computer hard drive on their premises, putting them out of business and putting the names of contributors in the government's hands.
Such complete seizure of assets was called a "general warrant" when the King of England used it against the American colonists, and it has been illegal since the Bill of Rights became law.
The Fourth Amendment to the Constitution requires that a warrant be based on "probable cause" that a crime has been or is about to be committed (not just a hunch). A warrant previously had to describe the place to be searched and specifically mention the people or things to be seized. But none of that applied in the raids on the charities.
When attorneys for one of the Muslim charities asked to see the warrant against their client, they were told it was secret. This made it impossible to challenge whatever allegations might have been made to obtain the warrant. This is an extreme example of denial of due process--the principle that legal proceedings must be conducted according to established rules, including notice of charges--and the right to a fair hearing before a tribunal with the power to decide the case.
The criminalization of international political and humanitarian ties did not begin with the USA Patriot Act. The 1996 Anti-Terrorism and Effective Death Penalty Act resurrected guilt-by- association when it expanded the definition of "material support" for international terrorism to include all kinds of support to any organization designated as "terrorist."
A previous distinction between an organization's legal or humanitarian work and its illegal or armed actions was abolished. So a donation to a hospital in the West Bank that might have some affiliation to the Palestinian party Hamas, for instance, now became "support for terrorism." And since Hamas is deeply involved in providing social services to Palestinians, it is now hard to know when a contribution to Palestinian social services risks a criminal charge of "support for terrorism."
The 1996 law made an exception for medical or religious materials. The Patriot Act abolishes even that distinction. It also expands the definition of "support" to include "expert advice or assistance"--commentators have pointed out that this could include any kind of humanitarian assistance, even efforts at peace negotiation.
The secretary of state can designate a group as "terrorist" if its activities "threaten the national security, foreign policy, or economy of the U.S." This definition is so vague and so broad that it can include any group not in favor with the government.
Most of the more than 30 groups designated to date have been Middle Eastern, many Palestinian, but they have included the Communist Party of Peru and the New People's Army of the Philippines as well.
The most serious post-9/11 prosecutions for "material support of terrorism" have been under this 1996 statute, buttressed by expanded post-9/11 police powers. The government does not need to prove that the defendants supported any acts of violence, only that they are linked in some way to a group alleged to have committed them.
The Lackawanna 6, Muslim men of Yemeni descent born in the U.S., were held for months without bail on the evidence of foreign travel, Islamic beliefs, and a statement by one of the accused that they had visited an al-Qaida training camp. They were not charged with planning, let alone carrying out, any specific act of violence. There was not even an allegation of membership in al-Qaida. Their mere presence at the training camp was considered "material support." Similar prosecutions against U.S. citizens are underway in Oregon, Florida, California, and elsewhere.
As David Cole of Georgetown University law school has pointed out, noncitizens are living under what amounts to martial law under the terms of the USA Patriot Act. And many of these restrictions on non-citizens are rather openly based on ideology and political belief.
One section of the Patriot Act creates a very broad class of non-citizens who can be deported or barred from entering the U.S. simply for political associations or political statements they have made. This revives a law from the McCarthy era but applies such powers even more broadly.
For example, this provision was used to bar Bernadette Devlin MacAlisky, a former member of the British parliament and prominent Irish opponent of British rule in Northern Ireland, from entering the U.S.
Any non-citizen who represents "a political, social or similar group whose public endorsement of acts of terrorist activity the secretary of state has determined undermines the United States efforts to reduce or eliminate terrorist activities" can also be deported or barred from entering the U.S.
Non-citizens can also be deported for supporting organizations that have not been designated "terrorist" by the government. This makes a mockery of the legal requirement of prior notification. It is unjust and profoundly dangerous if people can be punished for actions that have never been officially declared illegal!
Attorney General John Ashcroft has issued regulations empowering his agents to monitor lawyers' discussions with their clients in prison. This includes conversations with pre-trial detainees who have not been convicted of anything, immigration detainees, and material witnesses who aren't even accused of any crime. This can all be done without the prosecutor having to obtain a court order and without a court monitoring how the Justice Department uses the information gained from such spying.
In important areas, the role of the courts is being increasingly reduced to rubber- stamping executive branch actions. Dubbed "court stripping," this trend shrouds executive branch actions in greater secrecy and denies the government's targets an opportunity to present their case to the public in open court.
At the same time, executive branch interference in the judicial process is growing more blatant. In the case of Jose Padilla, government lawyers are arguing that once the President, in his function as military commander-in-chief, designates someone an "enemy combatant," the courts have nothing to say about it and no right to review that designation. In other words, the executive branch says it has the right to simply bypass all the usual legal and judicial procedures and simply imprison people without charges or trials.
Jose Padilla, a U.S. citizen, was seized while traveling through Chicago's O'Hare airport. He has already been held for over a year in a military prison without charges, without any hearing, without the presentation of any evidence against him, and without access to the outside (including family and legal counsel).
On June 23, 2003, Bush announced that he had designated a third "enemy combatant," Ali Saleh Kahlah al-Marri. He had been scheduled to go on trial next month in federal court in Illinois on criminal charges. Now he has been removed from the court's jurisdiction, transferred to a military brig in South Carolina, and cut off from all contact with the outside, including his lawyers. The government can make any allegation against him it wants, without the need to present evidence or give him an opportunity to respond.
This is a huge expansion of the executive's reach, right into the workings of the courts and criminal justice system. Federal prosecutors can now threaten to impose such detention, in order to force defendants to plead guilty in regular court.
In the case of Lynne Stewart, a respected New York criminal defense lawyer, the court granted a prosecution motion that the Justice Department may do background checks on "persons associated with the defense" and the court's own personnel. The court also agreed that the Justice Department may then determine whether the defense team can see classified documents that are submitted to the court for review.
Stewart was charged with "terrorist conspiracy" (under the 1996 Anti-Terrorism and Effective Death Penalty Act) solely for her work representing Sheik Omar Abdel Rahman. By making those charges, the attorney general threatens the right to counsel and a competent defense for anyone targeted in the government's "war on terrorism."
Information sharing among federal and local law enforcement authorized by the Patriot Act is another unprecedented incursion on what were thought to be basic principles.
This is especially true in regard to formerly secret grand jury testimony. Grand juries have almost unlimited power to subpoena testimony and records. In the past they have operated under strict rules of secrecy, supposedly to encourage witnesses to make full disclosures. Grand juries have often been used to harass political activists, such as opponents of the Vietnam War and Puerto Rican independentistas .
Several grand juries around the country have been investigating Arab-American and South Asian communities since 9/11. Now, the Patriot Act allows disclosure of grand jury testimony to federal law enforcement, including FBI and CIA, with mere notice to a judge after the fact.
This places new, unchecked powers in the hands of government agents. CIA and FBI agents can now, for instance, work through cooperative prosecutors and use the powers of grand juries to compel testimony and records without judicial oversight. The once-secret investigations of grand juries can become fishing expeditions for government agents.
"Things are bound to be vastly different...The America we have known will not exist in the same way anymore."
Bob Avakian "The New Situation and the Great Challenges," March 17, 2002
Cases challenging various provisions of the Patriot Act and other government actions since 9/11 are making their way through the federal courts. The record is mixed so far: some victories have been won in lower courts, only to be overturned on appeal. Decisive tests at the highest levels may lie ahead. Meanwhile, public debate has started over the erosion of civil liberties, and alarm is growing, including even among conservative groups.
Over 120 towns and cities across the country, and the state legislatures of Hawaii, Alaska, Vermont, and New Mexico, have passed resolutions calling for the repeal of the USA Patriot Act and non- cooperation with unconstitutional federal government actions based on it.
Yet it has to be said that there is still far too little understanding of the seriousness of this moment. There are a great many illusions about what these changes will mean and how permanent they may prove to be. It is absolutely necessary to look with open eyes at the powers the government has already acquired and even greater powers that it is proposing and even demanding. It would be very dangerous to assume that "the pendulum" will somehow swing back and the extremism of this moment will prove temporary.
In February, an internal document of the Justice Department was leaked to the press--outlining a draft for a new Domestic Security Enhancement Act, known as Patriot 2. Their vision has many of the markings of a permanent police state.
To name a few of its proposals:
Embarrassed by this leak, the Department of Justice tried to deny that this draft legislation represented their actual plans.
But on June 5, Attorney General John Ashcroft went before the House Judiciary committee. He defended all the extreme actions and changes that have been made over the last two years. He insisted that all the Patriot Act powers should be made permanent and demanded more powers for federal prosecutors and police in matters related to this "war on terrorism"-- including expanded power to hold suspects without bail, charge people linked to targeted groups as "material supporters," and execute more of those convicted in "terrorist"-related charges.
Intense as the changes have been, this government thinks they are just getting started.
This article is posted in English and Spanish on Revolutionary Worker Online
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