|Montreal, January 17, 2004 / No 136|
by Ralph Maddocks
Reading the various newspapers from around the world it seems that everywhere one looks there is evidence of a gestating police state. That totalitarian governments could take over in places like Britain is unsurprising, since its parliament is able to legislate about any matter it chooses. This is in contrast to countries such as the USA which have written constitutions and Supreme Courts to enforce them. The US courts could be expected to strike hard and repeatedly against some of the more repressive acts of the state. Sadly it appears otherwise.
The US Supreme Court refused recently to oblige the US government's Justice
Department to disclose the names and other information about the many hundreds
of people it rounded up after the events of 9/11. As is often the case,
the Court gave no explanation for refusing to accept the appeal which had
been brought by the "Center for National Security Studies," a Washington,
DC, think tank representing Arab-American groups and some civil rights
activists. This refusal brought into clear focus the quote from James Madison's
letter to Thomas Jefferson in 1798, "the loss of liberty at home is to
be charged to provisions against danger, real and pretended, from abroad."
which appears on the Website of the Center for National Security Studies.
The Fourth, Fifth and Sixth Amendments to the US Constitution would seem to be extremely clear about search and seizure, speedy jury trials and rights to Grand Juries and the like. Nor does the constitution make any distinction between "persons" who may be of a particular ethnic origin or unusual appearance. The constitution does mention citizens in some cases, but the Fourth amendment clearly states and applies to "persons." To get around this, the FBI has been using the term "detainees," which if nothing else supports the definition of the word person to mean citizen and non-citizen alike. Even despite a law requiring most aliens to be deported or released within 90 days, an audit last year by the inspector general at the Justice Department found "significant problems" with the detentions, including allegations of physical abuse. The report found also that many of the 762 illegal aliens, held until cleared by the FBI of any terrorism connections, were incarcerated for many months, hardly a normal definition of the word speedy.
That the Supreme Court feels it unnecessary yet to insist upon the constitutional rights of "persons" is not just appalling in itself, it effectively allows the US executive to do exactly as it pleases without ever being held to account. As the Director of the Center for National Security Studies remarked, "The Justice Department is keeping the names secret to cover up its misconduct – holding people incommunicado and without charges. The cover-up maintains the fiction that the government was going after terrorists when it instead was rounding up hundreds of innocent Arabs and Muslims." She said also, "Without action by Congress or the public, the Justice Department will be free to repeat these abuses in the future." Judging by the apathy of most US citizens and virtually all of their elected representatives, it look as though the porcine population of the USA will be indulging in complex aerial acrobatics long before this happens.
Other decisions by the Supreme Court though will involve the question of prisoners' rights in the context of anti-terrorist efforts. This is the first time that the Supreme Court will review the constitutionality of the White House's war on terror laws that have grown from the September 11, 2001, attacks. In one case, the high court will listen to arguments about the rights of prisoners held overseas at a US Navy base in Guantanamo Bay, Cuba. Additionally, justices will consider whether so-called "enemy combatants" who are also US citizens deserve to have their appeals heard by federal courts. In this case, an American suspect named Yasser Hamdi was captured on the battlefield in Afghanistan and is being held in secret military custody. How the Hamdi case differs in any meaningful way from that of the Californian, John Walker Lindh, now serving 20 years in a federal prison in Victorville, California is beyond the understanding of this chronicler. Another US citizen, Jose Padilla, is also not yet charged with any crime and is being held in US custody indefinitely and without access to a lawyer.
The record of the US Supreme Court thus far is hardly encouraging. They have refused to hear cases, filed on their behalf by a group of clergy, lawyers and civil rights advocates, involving the Guantanamo detainees. The court has appeared to be extremely unwilling to interfere with the enforcement of various Justice Department policies, and in May last rejected an appeal to allow public access to closed hearings involving hundreds of the so-called "special interest" immigrants. Many of these immigrants being of Muslim or Arab descent who were detained in virtual secrecy shortly after 9/11. In March last, the justices also refused to hear an appeal from the ACLU regarding government surveillance powers, which were much increased with passage by Congress of the USA Patriot Act.
Other matters pending are the requirement of male visitors to the US from certain countries, most from the Middle East and South Asia, to register with the government and to provide fingerprints and photographs. Families of the men, as well as some legal groups say this policy represents "racial profiling," with no clear justification for the war on terror. In addition, there are other challenges to the detention policy of mostly Muslim immigrants. The Justice Department claims though that most of those picked up shortly after the September 11, 2001, attacks have since been deported, or had their cases resolved. But civil rights groups are afraid of a new wave of immigrant roundups by the government.
The trial of Zacarias Moussaoui, an admitted al Qaeda operative, who is accused by the government of having a role in the September 11, 2001, conspiracy remains stalled. Here the court may eventually have the final word about whether Moussaoui can call as witnesses and question other alleged terrorists who may be helpful to his case. One possible outcome of this case, given the euphemistic tendencies of the Bush administration, is that after exhausting the judicial appeal process the government could well end up sending him to trial before a military court in Guantanamo.
Some claim that in the course of this undeclared war on terror, the courts may establish new legal precedents by simply making them up as they go along. This may be why the Supreme Court seems not to be eager to bypass the ongoing process and is letting the lower courts examine these cases before becoming involved themselves. Hardly an encouraging thought, certainly not for those being held in Mr. Bush's legal limbo.
The Supreme Court has had nothing to say about President Bush's issuing his own warrants. A move clearly designed to avoid the Fourth Amendment rights of a "person" to protection against unreasonable search and seizure. The Bush warrants come from his controversial "military order" issued on November 13, 2001, which allow the president to make a determination that a non-citizen may be involved in certain illegal activities. Then the federal police agents are required to detain that person "at an appropriate location designated by the Secretary of Defense outside or within the United States." The detainee cannot challenge the legality of the arrest in court and may only file appeals with the official who ordered his arrest in the first place. Since the "official" in this case is the president who issued the order for his or her arrest, this makes a total mockery of the Fourth Amendment which was expressly designed to make such a procedure impossible in the USA. Some argue that since this presidential order applies only to non-citizens it is thus constitutional, but the Supreme Court has always affirmed the plain reading of the US constitutional text. Where the constitution uses the words citizen or person it is clear from their context that the words mean exactly what they say. The Fourth Amendment makes mention only of people and persons, so no ambiguity is possible.
The sacrosanct principle of keeping client-attorney conversations private was abandoned by the Bush administration in November 2001 when it bypassed Congress and issued a "rule" with respect to the internal operations of federal prisons. Prisons maintain two sets of telephones, one for prisoner-visitor conversations which are always monitored, and a second set of unmonitored telephones reserved for prisoner – attorney communication. At present this limitation is confined to a small group of detainees and could be expected to prevent a real terrorist from passing vital information to his lawyer. If this precedent is expanded, again by presidential fiat, to cover all prisoners in federal prisons it will mark one more milestone in the creation of a police state.
The introduction by the Bush administration, eagerly abetted by Congress naturally, of freedom destroying measures such as secretive subpoenas, arrests, trials and deportations have done nothing to ensure that another terrorist attack will not take place. No thorough official public investigation has been held to investigate the events leading up to and including the atrocities of 9/11. No determination of the efficiency or negligence of law enforcement or the intelligence community has taken place yet in public. Hundreds, if not thousands, of questions remain unanswered still, all providing fodder for the doubters and conspiracy theorists. Politicians world-wide seem to believe that passing more and more freedom-destroying laws and spending increasingly large sums of money on police and para-military organisations will convince their populations that something useful is being done. No answers to the dissemination of anthrax powder have ever been made public. While nuclear suitcase bombs may be theoretical, phials of biological or chemical agents are easy to transport undetected, and relatively easy to distribute by introducing them into the air distribution system of some railway station or sports arena.
When will we hear calls for a "national police force"? National police forces are the hallmark of totalitarian states, no self respecting dictator should ever be without one. Already the Department of Justice is creating and funding what it is pleased to call "joint task forces" of federal, state and local police. What about the involvement of the US military in Homeland Security? US airports seem home to many of them these days. The Posse Comitatus Act of 1878 was supposed to keep the military out of any involvement with law enforcement. Yet the last two decades have seen its limitations reduced as the military trains state and local SWAT teams. The army is increasingly involved in the unwinnable war on drugs and we can expect to see more Waco type events as the influence of the military increases. It will be recalled that on that occasion, Delta Force commanders were advising the FBI in their use of tanks and grenade launchers to remove a group of religious men, women and children from a building. A misadventure which left some 80 people dead, among them 27 children.
New travel restrictions, biometric scans and the like, are yet one more ingredient in the creation of this Festung Amerika. Changing terror alerts from one colour to another may eventually annoy rather than make the people feel that their government is protecting them. Colour coded cards have been introduced for the travelling public. When will an ID card be introduced? Certainly not in this election year, but afterwards the odds are high that it will appear soon. We are likely to hear some seductive story about the present use of driver's licences and Social Security cards and numbers to identify people, so why not replace them all with a super card which will include all this information – plus a little biometric stuff on the side of course – and take up less space in your wallet as well. The government's effectiveness in making adults as malleable and vulnerable as little children will, by and large, depend upon the ability of that government to instill a sense of insecurity by its use of the personal information it has collected and collated.
Even if one believes that the government really has "intelligence" showing an imminent attack, it is quite unlikely that it will be able to stop it. The accompanying of civilian airliners with F-16s is likely to result in the shooting down of a civilian aircraft with the loss of a few hundred visitors, or returning residents, plus the loss of life involved on the ground where the aircraft falls, saving perhaps a building or two and some innocent civilians in the process. Stopping aircraft from flying because they contain Chinese ex-restaurateurs and Welsh insurance salesmen with unpronounceable names is not likely convince anyone that the intelligence received by the operatives of Homeland Security is being interpreted by anyone of outstanding intelligence.
Not to be outdone by the Americans in the "Create Your Own Police State" contest, the UK which already has four million CCTV cameras in place, or one per 14 inhabitants, watching the public at large has introduced a new bill called the Civil Contingencies Bill (CCB). This piece of legislation, introduced by Mr. Blair and his Home Secretary, David Blunkett, proposes to tackle the threat of international terrorism by extending internment without trial from foreign terror suspects to all British subjects! This rather Draconian move could result in many Britons falling under suspicion and spending years in prison without any charges being laid.
Another proposal from the enlightened Mr. Blunkett is to give the police the right to detain anyone in the vicinity of a suspected bio-terrorist attack. The bill, gives the authorities new powers to deal with civil emergencies and terrorist attacks, proposing to give police the right to impose no-go areas, destroy private property without compensation and ban peaceful protests. Temporary legislation could be put in place without parliamentary approval allowing ministers to order any sort of action by police, military or the civil service. It would mean that a September 11 type attack in Britain would be dealt with in a very radically different way from the approach taken by authorities in New York. In Britain, police could order people to leave the zone affected at gunpoint, and take over the public transport system to get them out. An exclusion zone around the target site could be set up for an unlimited time, and anyone trying to approach it shot.
UK civil rights groups had believed that they had fought off the most serious threats to human rights contained in the government's original anti-terror proposals, presented last summer. Now they think that
The latest proposal clearly threatens the judiciary, and England's second most senior judge, the aptly named Lord Justice Judge, commented: "There are nasty people out there and there is no guarantee that because we are Great Britain none of them will ever, ever come to power."
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