The Declaration of Independence heralded the values of freedom, justice and equality in a country whose government was accountable to the people. The Constitution and the Bill of Rights enshrined these and other principles, which became the hallmark of this country. We extolled the virtues of our legal system and held it as a model to others.
Across 200 years, the progress has been steady in affirming constitutional rights and embedding the rule of law in our society.
Among the memorable road hazards of that historic trip are: Lincoln’s suspension of habeas corpus during the Civil War, Roosevelt’s internment of Japanese-Americans, Sen. Joseph McCarthy’s witch hunt for Communists or their sympathizers among Americans of all walks of life but particularly among intellectuals and the movie industry.
But the nation has never before seen a more systematic erosion of civil rights than after 9/11. This has taken the form of undermining the legal system, coupled with egregious governmental abuses of power, all in the name of combating terrorism.
The targets of these measures have been Arabs and Muslims, but the effects extend to everyone.
The erosion actually started in 1996 with anti-terrorism and immigration legislation. Permanent residents who were recognized by the Constitution’s equal-protection clause as having most of the rights enjoyed by citizens were stripped of them. Non-citizens could be arrested and deported on “secret evidence,” which revoked the constitutional right to confront and cross-examine evidence presented against them.
This was precisely the practice used by dictatorial regimes the U.S. has repeatedly denounced since the Cold War.
After Sept. 11, 2001, the administration embarked on a series of measures that started with a wave of arrests of aliens whose status was irregular. But the administration’s campaign only focused on people of Arab origin and others who were Muslims. Their numbers were not confirmed, their status undisclosed, and their cases’ outcomes have not been revealed.
The Justice Department’s inspector general reported that many cases were unjustified and many individuals were harshly treated, something heretofore deemed shocking by our legal standards.
Two years later the U.S. Circuit Court of Appeals for the District of Columbia, in a 2-1 decision, reversed an earlier federal court ruling ordering the government to release the names of hundreds of people detained after Sept. 11. One of the concurring judges wrote that “America faces an enemy just as real as its former Cold War Foes, with capabilities beyond the capacity of the judiciary to explore.”
Judge refuses to cave in
The government contended that the disclosure of even one name would compromise national security. In a courageous dissent, however, Judge David Tatel wrote that the majority’s “uncritical deference” to the government’s vague assertions not only contravened the purpose of the Freedom of Information Act but prevented the American people from discovering whether the present administration “is violating the constitutional rights of hundreds of persons whom it has detained in connection with the terrorism investigation.”
The war in Afghanistan brought about another type of violation, the placing of enemy war prisoners in Guantanamo Bay, Cuba. Their detention without due process is in clear violation of our international legal obligation under the Third Geneva Convention.
The convention requires the U.S. to properly adjudicate their status as prisoners of war and to treat them well. It also provides for their release after the conflict ends. The conflict is over, but they are still detained. Moreover, they were treated in a manner that may fall in the category of torture: sensory deprivation, prolonged hooding and solitary confinement, degrading and humiliating treatment.
All of that was glossed over and no one from the U.S. media or human rights organizations was allowed to go inside, view the conditions of detention and talk to the detainees.
Among the detainees are people ages 15 to 95, including some who were sick. Secretly, some of them were released to avoid embarrassment, and soon the remaining ones will be released or tried by military commission before which their rights to a fair and impartial defense will not be guaranteed.
U.S. courts have shockingly refused to review this situation on the fictitious grounds that Guantanamo Bay, a territory leased from Cuba by the U.S., is not part of the U.S. Our courts found that they are not competent to examine what our troops are doing to their prisoners.
That is simply absurd, and judges with moral courage must reverse this position.
The arrests and indictments under the USA Patriot Act, which Atty. Gen. John Ashcroft is defending in a series of appearances around the nation, turned out in some cases to be media blitzes. At his October 2002 appearance in Chicago, Ashcroft claimed that contributions of a Chicago-area Muslim charity had been converted into “terrorist blood money.”
The proceedings did not prove what had been proclaimed. Nevertheless, the funds were seized. Its president, Enaam Arnaout, had no choice but to plead guilty to a single count of “racketeering conspiracy,” totally unrelated to funding terrorism. The charge arose out of the fact that he provided legitimate humanitarian assistance to the Afghan rebels who fought the Soviet Union’s occupation of Afghanistan, this at a time when the rebels were also being supported by the U.S.
He also provided legitimate assistance to the Bosnians fighting for their independence–a cause that the U.S. also supported.
But because he did not disclose that assistance to the corporate directors and funders of the charity, the behavior was deemed a crime. Before and during his trial, Arnaout was kept in solitary confinement 23 hours a day, with one hour a day to view sunlight from the rooftop of a federal detention center.
In another case of abuse of power, University of South Florida professor Al Arian is being held on charges of conspiracy to provide “material support” to the Palestinian Islamic Jihad.
50-count indictment
According to the 50-count indictment, Al Arian is also charged with conspiracy to commit racketeering, conspiracy to murder and maim persons abroad, conspiracy to violate a 1995 executive order forbidding transactions with organizations the government deems “specially designated terrorists,” and obstruction of justice.
For now, he is held in solitary confinement, and, in order to see his wife and children, under guard supervision and through a glass partition, he must submit to a strip search before and after the visit. This is clearly abuse of power designed to degrade and humiliate a person, a violation of the Constitution.
In another case, a Detroit jury earlier this month acquitted two of four defendants on charges that they provided “material support” to terrorists. The four men, Arab immigrants, were alleged to have been part of a sleeper cell that aided terrorists by fundraising and manufacturing false documents.
Then there is the case of the so-called Lackawanna Six, who were said to be a sleeper terrorist cell. This too proved false, but the defendants had no choice but to plead guilty to lesser charges. Last but not least are the cases of two U.S. citizens, Jose Padilla and Yaser Esam Hamdi, who are held without charges, without visitation rights and without access to counsel for an indefinite period of time.
Controversial Bush order
Both are held under a controversial presidential order declaring them “unlawful enemy combatants.”
No one knows exactly what it means, but it places them outside the protection of the Constitution. There is no constitutional basis for the president to suspend the rights of U.S. citizens.
While the ACLU and other organizations have opposed these unconstitutional measures, the organized bar has been circumspect. The media has occasionally discussed these cases, but in a guarded manner, seldom denouncing them.
What is at issue is not only the specifics of these and other cases of violations of the Constitution and abuses of power, but the broader issue of the rule of law’s fate in this country. For sure, throughout our history, there have been many miscarriages of justice against individuals and classes of people, particularly people of color, but never before has there been such an insidious and systematic undermining of the rule of law and due process of law.
This is what we must be concerned about.
Now we learn that some 5,000 Iraqis have been held as prisoners without any legal process.
What has the notion of laws come to?
After the Nazi regime, a story spread throughout the world about a Protestant pastor by the name of Martin Niemoller, who said, “At first they came for the Jews and I did not speak out–because I was not a Jew. Then they came for the Communists, and I did not speak out–because I was not a Communist. Then they came for the Catholics, and I did not speak out–because I was a Protestant. And then they came for me, and by that time there was no one left to speak out.”
