Civil Rights on the War Bonfire
Monday, September 24 2001, 4:23 PM
As war begins, the lawlessness of the terrorist attacks is being met by governmental lawlessness. But where the World Trade Center / Pentagon terrorists began and ended their deeds in lawlessness, the Bush administration is leading the U.S. government from lawfulness into lawlessness. If the purpose of law is to expand human freedom, the current legal direction lies in diminution of freedom. Lawlessness is arriving as a domestic and foreign assault on legal ideas that endorse freedom and human rights.
Domestically, the U.S. stands poised to adopt a drastically dismissive policy towards civil liberties. A vague criminal standard of "terrorism" is emerging, rather than the specification of named crimes or conspiracy to commit those crimes. Under Department of Justice proposals incorporated in the Anti-Terrorism Act of 2001, which will likely be enacted by a supine Congress, an array of new measures will come into force.
Wiretapping orders will become available on demand for government investigators, based on no evidence beyond a claim of terrorist association. The probable cause standard for obtaining wiretap orders that presently holds in criminal cases will become history, replaced by a new standard of relevance to a criminal investigation. The judicial function of authorization for wiretapping will be marginalized; government investigators themselves increasingly will decide themselves what is relevant.
Investigators will not even need to bother with the courts to obtain business records: an administrative subpoena will suffice. The Internet is already being saddled up with Carnivore monitoring software, an invasion of free speech and privacy for which its proponents now have a national security excuse. This is only part of a new culture of personal invasion. The Anti-Terrorism Act would create a new category of secret searches where government agents conduct furtive searches without providing notice or presenting a warrant.
Under Bush administration proposals, fear of foreigners and foreign-ness is finding legal endorsement. Immigration law will now permit indefinite detentions of non-citizens without trial on the Attorney-General's order, together with summary administrative deportations. Non-citizens will not have access to the U.S. courts to defend themselves against the charges on which they are being deported: the bill explicitly denies habeas corpus to non-citizens. The bill would retroactively punish with deportation all non-citizens who made contributions to what the government now decides are terror-linked organizations, even though such contributions were legal under U.S. law and contributors did not know of any underground connection with a terror group.
The INS will be able to have access to and use the intelligence files of foreign intelligence agencies to process U.S. immigration applications, creating substantial jeopardy for political refugees who fled because they opposed their governments. This means that repressive governments participating in the new U.S.-led grand coalition against terrorism will be able to obtain political payback against dissidents who have fled to the United States. For example: Kurds applying for political asylum in the United States will have to not only supply the facts of their application, but also contend with Turkish intelligence files. Repressive governments will gain an officially-sponsored voice against their own exiled dissidents.
Such demands for an integration of security mechanisms are globalizing the homeland in "homeland security." EU governments are duplicating many of the above initiatives by "streamlining" and "fast-tracking" due process throughout Europe and opening new information monitoring initiatives. Global labor flows, already severely limited, will be further conditioned by official suspicion of prevalent political opinion within an immigrant group.
In the U.S., educational institutions -- whose seminar rooms are about the last conceivable refuge for terrorists planning the lucha armada -- will receive special attention. New legal authorization will be given to any federal officer, as authorized by the Attorney-General, to obtain, use and disseminate confidential student records. There will be no requirement for court authorization or notification, and records may be accessed "upon determining that so doing can reasonably be expected to assist in investigating or preventing a Federal terrorism offense." In short, educational privacy will end.
This is only a first list of demands. There is every reason to anticipate that the Bush administration will continue to bulldoze through civil liberties. Attempts to control terrorism through targeted legislation produce their own rising dynamic, as the history of the Emergency Regulations in British colonies showed, beginning in Ireland. There is no act of terror that does not fit existing definitions of criminal acts: the new definition of a "Federal terrorism offense" is simply a list of existing federal crimes. Rather, 'terror' is a political name that describes a political effect. An expanding rubric of 'terror' targets suspect ethnicities and tangential groups pursuing legal activities. A culture of terror suspicion takes on a life of its own, searching for the next source of identifiable suspicion and demanding new police powers.
The new Office of Homeland Security will be a major beneficiary of these expanded legal powers and culture of anti-terror. This is the first cabinet-level office in U.S. history to be established with such amorphous purposes. The Orwellian term "homeland security" has emerged from a murky recent origin in right-wing think-tank circles. As a reactionary and repressive ideology, it speaks a language of control and anti-subversion, not social justice. Within this ideology, the function of legislation and the legal system is to enable investigation, uncover signs of suspicious deviance, and create Damoclean legal threats for targeted political associations. A Thermidorean bureaucracy of "homeland security" experts promotes this ideology and its legislative means, patriotically embracing American capitalism as the best of all possible systems and demanding the constriction of civil liberties as a small price to pay for American freedom.
All of this is reminiscent of the Palmer era in U.S. legal history. A. Mitchell Palmer, the Wilson administration attorney-general who wreaked havoc against civil rights during World War One and after, was a man who spoke with love-it-or-leave-it patriotism, a grim small-mindedness, an evangelical passion against social tolerance, and blinkered cultural xenophobia. A nativist and anti-Reds rhetoric of hatred shaped Palmer's assaults against civil liberties during World War One and afterwards.
Substitute "terrorists" for "Reds" and the rhetoric of Palmer and John Ashcroft read as near-identical screeds against evil. Ashcroft now proposes to do the same damage to civil rights in the United States as Palmer once did in his raids and deportations of wrong-thinking aliens. With Ashcroft's new legislative initiatives on board a Congressional express train, civil liberties in this country have faced few bleaker propects than at present.
Such domestic disregard for the protective function of law finds its mirror in the increasingly disarrayed state of international law. One of the most profound ideas to emerge from World War Two was the emergence of an international human rights culture and legal system. Although regularly and thoroughly violated by nearly all nations, it has represented one of the great hopes to emerge from the twentieth century. International law and human rights enactments set a threshold standard of respect towards the rights of individuals, minority groups, and nations.
In its unleashed rage, nothing could be further from the mind and policy of the Bush administration. It is far more interested in international war coalitions than international law. Although the Taliban government is a despicable pack of theo-fascists that violates its citizens' human rights as a matter of daily practice, it is fully within reason for them to ask for evidence upon which to honor an extradition demand for Osama bin Laden and his Al-Qaeda associates.
For its part, the Bush administration is ready to send in the bombers without meeting a minimum of due process before launching retaliatory state violence. With breathtaking imperial arrogance, presidential spokesman Ari Fleisher stood before the media and stated, in so many words, that secret evidence will remain secret even though a global war is in bloom on the basis of that evidence. "To demand evidence is not helpful," stated Condoleeza Rice, directing that same denial at the U.S. public's right to know. Eventually the Bush administration will be forced to provide some version of the available evidence, but their initial reaction reveals an underlying belief that their concept of national security trumps all other public interests.
There are legitimate U.S. interests at stake of self-defense and prevention of future attacks of criminal terrorism which end in the mass murder of its citizens. Those interests do not relieve the United States of a legal and ethical duty to take all measures to avoid using violence before undertaking military action. By so far refusing to open a legal process and stay the arrival of warplanes until that process proves futile, the Bush administration reveals its basic policy motivation: naked revenge and re-assertion of American imperial power. Retribution is to international law as lynching is to domestic law.
The ascendant ideologies of domestic and foreign security share a nexus in privileging the rights of a state over the collective rights of its citizens. The U.S. government is willing to go to war on the basis of secret evidence, deport people on secret evidence, conduct secret searches, and examine and exchange personal files in secret. These security ideologies establish themselves atop a rationalization that a necessary balance exists between security and individual rights, a false equation.
In Ex parte Milligan, when the Supreme Court restored habeas corpus in 1866, it rejected precisely this equation. "[The Constitution's framers] knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, whenever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation." Rash people throw legal rights onto the war bonfire, with terrible consequences for human lives.
The Bush administration has no inherent right to join Osama bin Laden in a culture of lawlessness, one that destroys civil liberties -- life itself foremost among them. Civil liberties are not ahistorical; they emerged and continue to develop from a history of activism and struggle against authority that ignores or overrides individual rights. The administration's Anti-Terrorism Act, currently before Congress, betrays that history and needs vigorous opposition from anyone concerned to affirm and expand civil liberties.
Joe Lockard is a member of the Bad Subjects Collective.