Operation Enduring Liberty (or otherwise known as the Ashcrap fascist regime act)
by David Cole
The Nation Feature Story
June 3, 2002 Edition
Those who believe that civil liberties are a bedrock of a healthy and secure democracy are beginning to
win support in cases stemming from the events of September 11. As shock has given way to a renewed
appreciation for the rule of law, courts have stood up to Attorney General John Ashcroft and for civil liberties
from Detroit, Michigan, to London, England.
In recent weeks:
* a federal judge in New York threw out an indictment against Osama Awadallah, finding
that he was threatened and denied access to a lawyer in prison and that the government had
violated the "material witness" statute in detaining him;
* a New Jersey state court ruled that the identity of all people detained in its state
facilities must be disclosed, including the many who have been held on secret immigration
charges in the September 11 investigation;
* a federal court in Detroit declared unconstitutional Ashcroft's decision to try in secret all
people picked up on immigration charges in the September 11 investigation;
* a federal judge criticized the government's efforts to bar John Walker Lindh's lawyers
from interviewing witnesses held at Guantánamo Bay who the government admits have
information tending to show that Lindh is innocent; and
* a federal judge in the District of Columbia questioned the government's closure of the
Holy Land Foundation, the nation's largest Muslim charity, without notice, a hearing or even a
formal charge that it had engaged in illegal activities.
Ashcroft is losing even in London, where a judge in April dismissed extradition proceedings against Lotfi
Raissi, an Algerian man whom US authorities had initially identified as the "lead instructor" of some of the
September 11 hijackers but ultimately could not even prove had falsified an application for a pilot's license.
New challenges are being filed almost daily. In April the Center for Constitutional Rights filed a
nationwide class action contesting the government's pretextual use of immigration authority to detain Arab
and Muslim foreign citizens long after they have agreed to leave the country. The center has also brought
two suits claiming that the detentions at Guantánamo Bay violate constitutional and international law. A
lawyer for a terrorism suspect has sued Ashcroft over his new policy authorizing government officials to
listen in on attorney-client conversations without probable cause or a judicial warrant. And an Indian man
apprehended on September 12 with box cutters, and still being held, recently challenged the government's
conduct in holding him for nearly two months without access to a lawyer.
The more candid of the Administration's defenders might now concede that civil liberties have been
curtailed. But if we have prevented another terrorist attack, who's to say it's not worth the cost? The trouble
is, one cannot know what might have happened had the government respected basic principles like due
process, political freedom and the rule of law. But a single fact suggests that the claims of efficacy are
overstated: Of the more than 1,500 people arrested since September 11 in the dragnet investigation of that
day's crimes, not one has been charged with any involvement in the crimes under investigation.
Still, don't expect government officials to be chastened. If anything, as the articles in this week's issue
make clear, the war on terrorism continues to expand, most significantly at the state and local level. State
legislatures are enacting copycat antiterrorist legislation, often going further than Congress did in the
Patriot Act. The Justice Department is encouraging further mission creep, seeking to entice local police
into enforcing immigration law. And the District of Columbia is installing high-powered public surveillance
cameras, despite evidence from England that such cameras have done virtually nothing to make the
populace more secure.
The rule of law has never been more critical, as the government's treatment of the Guantánamo
detainees illustrates. Held at Guantánamo Bay, the detainees are not officially in US territory, and the
government argues that they therefore have no constitutional rights. The government also maintains, in
contravention of most international law experts, that the detainees have no rights under the Geneva
Conventions, the treaty governing detention during wartime. And in any event, the United States is not
about to let itself be sued over the matter, having recently "unsigned" the treaty creating the International
Criminal Court.
Freed of legal niceties, the government has held the Guantánamo detainees for more than six months
without charges or individualized hearings, has asserted the authority to try them on classified evidence in
military courts with no appeal to an independent court, is considering expanding the definition of war crimes
to include guilt by association because it has so little evidence of individual wrongdoing, and says it intends
to hold them until the war on terrorism ends even if they are acquitted.
The last point is especially critical for rights at home and abroad. National-security types often assure
us that wartime diminutions of civil liberties are only temporary. But this is likely to be a permanent war.
Defense Secretary Donald Rumsfeld has said that the war will not be over--and the prisoners on
Guantánamo will not be released--until there are no terrorist organizations of potentially global reach left in
the world. Given that modern technology gives practically everyone "global reach," that day will never come.
Much as one would wish it so, politically motivated violence directed at civilians by desperate people can
no more be extirpated than can "evil" itself. The only certainty is that we will see further erosions of our
privacy, our freedoms and our principles.
In light of what lies ahead, the initial judicial response to the Ashcroft agenda is encouraging. But we
must not rely exclusively on the courts. Popular resistance is critical, from the Portland police who refused
to carry out the FBI's interviews of Arab immigrants, to the hard work of human rights groups and journalists
in bringing abuses to light, to the thousands of teach-ins held on college campuses. Unless we understand
that respect for basic human rights is as integral to our security as fighting terrorism, we are in danger of
losing sight of what we are fighting for.
CC |
