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 Editor in chief: 
Abdus Sattar Ghazali

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Mertze Dahlin   

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September 1, 2011

2001-2011: A decade of civil liberties’ erosion in America

The people can always be brought to the bidding of the leaders. Tell them they are being attacked, and denounce the peace-makers for lack of patriotism and for exposing the country to danger. [Nazi leader Herman Goering]

By Abdus Sattar Ghazali

Prof. Gary Orfield of the UCLA Civil Rights Project wrote in May 2003: “The loss of civil rights often begins with the reduction of rights in a time of crisis, for a minority that has become the scapegoat for a problem facing the nation. The situation can become particularly explosive in a time of national tragedy or war. But when civil rights for one group of Americans are threatened and the disappearance of those rights is accepted, it becomes a potential threat to many others.”  [1]

Prof. Orfield wrote this while commenting on the plight of Arabs and Muslims who were the immediate target of Patriot Act provisions and other legislations in the aftermath of 9/11. However his prediction proved correct about the erosion of civil rights of all citizens. In the last ten years we have seen a steady erosion of the fundamental rights and civil liberties, all in the name of national security.

The gradual erosion of our civil liberties came in the shape of Warrantless Wiretapping, abuse of the USA PATRIOT Act, the National Security Entry/Exit Registration System (NSEERS), the Real ID Act, the Military Commissions Act, No Fly and Selectee Lists, Abuse of Material Witness Statute, Attacks on Academic Freedom and monitoring peaceful groups.

The so-called War on Terror has seriously compromised the First, Fourth, Fifth and Sixth Amendment rights of citizens and non-citizens alike. From the USA PATRIOT Act's over-broad definition of domestic terrorism, to the FBI's new powers of search and surveillance, to the indefinite detention of both citizens and non-citizens without formal charges, the principles of free speech, due process, and equal protection under the law have been seriously undermined.

As Glenn Greenwald pointed out, the most disgraceful episodes in American history have been about exempting classes of Americans from core rights, and that is exactly what these recent, terrorism-justified proposals do as well.  Anyone who believes that these sorts of abusive powers will be exercised only in narrow and magnanimous ways should just read a little bit of history, or just look at what has happened with the always-expanding police powers vested in the name of the never-ending War on Drugs, the precursor to the never-ending War on Terrorism in so many ways. [2] 

To quote Glenn Greenwald again: “A primary reason Bush and Cheney succeeded in their radical erosion of core liberties is because they focused their assault on non-citizens with foreign-sounding names, casting the appearance that none of what they were doing would ever affect the average American.  There were several exceptions to that tactic -- the due-process-free imprisonment of Americans Yaser Hamdi and Jose Padilla, the abuse of the "material witness" statute to detain American Muslims, the eavesdropping on Americans' communications without warrants -- but the vast bulk of the abuses were aimed at non-citizens.  That is now clearly changing.

“The most recent liberty-abridging, Terrorism-justified controversies have focused on diluting the legal rights of American citizens (in part because the rights of non-citizens are largely gone already and there are none left to attack).  A bipartisan group from Congress sponsors legislation to strip Americans of their citizenship based on Terrorism accusations.  Barack Obama claims the right to assassinate Americans far from any battlefield and with no due process of any kind. 

The Obama administration begins covertly abandoning long-standing Miranda protections for American suspects by vastly expanding what had long been a very narrow "public safety" exception, and now Eric Holder explicitly advocates legislation to codify that erosion. 

“John McCain and Joe Lieberman introduce legislation to bar all Terrorism suspects, including Americans arrested on U.S. soil, from being tried in civilian courts, and former Bush officials Bill Burck and Dana Perino -- while noting (correctly) that Holder's Miranda proposal constitutes a concession to the right-wing claim that Miranda is too restrictive -- today demand that U.S. citizens accused of Terrorism and arrested on U.S. soil be treated as enemy combatants and thus denied even the most basic legal protections (including the right to be charged and have access to a lawyer). This shift in focus from non-citizens to citizens is as glaring as it is dangerous.” [3]

With the victory of Democrats and election of Obama in 2008, it was hoped that the Bush era of warrantless wiretapping, indefinite detention, torture and police statism would recede. Obama was voted into office on promises that included undoing abuses carried out under the Bush administration - promises to protect privacy, to end government-sanctioned torture and rendition programs and to end the use of military commissions for non-enemy combatants – but his administration has toed the Bush era policies.

According to July 2011 ACLU report "Establishing the New Normal," the current White House has not just failed to meaningfully follow through on its promises, but has also taken abusive policies, and, as shown in the case of targeted and interminable detentions, eroded civil rights to unprecedented levels.  The ACLU enumerates the following top ten abuses of power since 9/11: [4]

1. Warrantless Wiretapping — Soon after the September 11 terrorist attacks, President Bush issued an executive order that authorized the infamous National Security Agency (NSA) warrantless wiretapping program. This secret eavesdropping program allowed the surveillance of certain telephone calls placed between a party in the United States and a party in a foreign country without obtaining a warrant through the Foreign Intelligence Surveillance Court.

In December 2005, the New York Times reported the National Security Agency was tapping into telephone calls of Americans without a warrant, in violation of federal statutes and the Constitution. Furthermore, the agency had also gained direct access to the telecommunications infrastructure through some of America's largest companies. The program was confirmed by President Bush and other officials, who boldly insisted, in the face of all precedent and the common understanding of the law, that the program was legal.

During the presidential campaign season, Obama’s campaign promised that he would vote to filibuster any bill that gave amnesty to telecom companies that had cooperated with Bush's illegal NSA warrantless wiretapping program. But then Obama voted to legalize the program, to give immunity to the government and its connected telecoms. He voted for cloture — against filibuster. And now this issue is not even being debated. We have a Bushian surveillance state approved by both political parties. It is a bipartisan feature of leviathan, much like Social Security or the war on drugs.

2. Torture, Kidnapping and Detention — In the years since 9/11, our government has illegally kidnapped, detained and tortured numerous prisoners. The government continues to claim that it has the power to designate anyone, including Americans as "enemy combatants" without charge. Since 2002, some "enemy combatants," have been held at Guantanamo Bay and elsewhere, in some cases without access by the Red Cross. Investigations into other military detention centers have revealed severe human rights abuses and violations of international law, such as the Geneva Conventions. The government has also engaged in the practice of rendition: secretly kidnapping people and moving them to foreign countries where they are tortured and abused. It has been reported the CIA maintains secret prison camps in Eastern Europe to conduct operations that may also violate international standards. Congress made matters worse by enacting the Military Commissions Act, which strips detainees of their habeas rights, guts the enforceability of the Geneva Conventions' protections against abuse, and even allows persons to be prosecuted based on evidence beaten out of a witness.

3. The Growing Surveillance Society — In perhaps the greatest assault on the privacy of ordinary Americans, the country is undergoing a rapid expansion of data collection, storage, tracking, and mining.

Today the government is spying on Americans in ways the founders of our country never could have imagined. The FBI, federal intelligence agencies, the military, state and local police, private companies, and even firemen and emergency medical technicians are gathering incredible amounts of personal information about ordinary Americans that can be used to construct vast dossiers that can be widely shared with a simple mouse-click through new institutions like Joint Terrorism Task Forces, fusion centers, and public-private partnerships. The fear of terrorism has led to a new era of overzealous police intelligence activity directed, as in the past, against political activists, racial and religious minorities, and immigrants.

This surveillance activity is not directed solely at suspected terrorists and criminals. It's directed at all of us. Increasingly, the government is engaged in suspicionless surveillance that vacuums up and tracks sensitive information about innocent people. Even more disturbingly, as the government's surveillance powers have grown more intrusive and more powerful, the restrictions on many of those powers have been weakened or eliminated. And this surveillance often takes place in secret, with little or no oversight by the courts, by legislatures, or by the public.

4. Abuse of the Patriot Act — In 2001, just 45 days after 9/11, Congress passed the USA PATRIOT Act severely limiting the constitutional rights of immigrants and US citizens. The Act permitted non-citizens to be jailed based on mere suspicion without charges and detained indefinitely. It broadened the definition of activities considered “deportable offenses,” including defining soliciting funds for an organization that the government labels as terrorist as “engaging in terrorist activity”. The PATRIOT Act also subjected lawful advocacy groups to surveillance, wiretapping, harassment, and criminal action for legal political advocacy, expanded the ability of law enforcement to conduct secret searches and engage in phone and internet surveillance, and gave law enforcement access to personal medical and financial records. Related executive orders barred press and the public from immigration hearings of those detained after September 11th, allowed the government to monitor communications between federal detainees and their lawyers, and ordered military commissions to be set up to try suspected terrorists who are not citizens.

On May 26, 2011, Congress, rejecting demands for additional safeguards of civil liberties, approved a four-year extension to key provisions of the Bush era Patriot Act that will allow federal investigators to continue to use aggressive surveillance tactics in connection with suspected terrorists. One of the sections of the Patriot Act extended by Congress (Section 206) is the "roving wiretap" power, which allows federal authorities to listen in on conversations of foreign suspects even when they change phones or locations. Another provision, Section 215 of the Patriot Act, gives the government access to the personal records of terrorism suspects; it's often called the "library provision" because of the wide range of personal material that can be investigated. The third provision extended for four year is Section 6001 of the Intelligence Reform and Terrorist Prevention Act. In 2004, Congress amended the Foreign Intelligence Surveillance Act to authorize intelligence gathering on individuals not affiliated with any known terrorist organization, with a sunset date to correspond with the Patriot Act provisions.

5. Government Secrecy — The Bush administration has been one of the most secretive and nontransparent in our history. The Freedom of Information Act has been weakened , the administration has led a campaign of reclassification and increased secrecy by federal agencies (including the expansion of a catch-all category of "sensitive but unclassified"), and has made sweeping claims of "state secrets" to stymie judicial review of many of its policies that infringe on civil liberties.

The July 2011 report by the American Civil Liberties Union, “Drastic Measures Required,” illustrates the vast and systemic use of secrecy, including secret agencies, secret committees in Congress, a secret court and even secret laws, to keep government activities away from public scrutiny. “Our government has reached unparalleled levels of secrecy,” said Laura W. Murphy, director of the ACLU Washington Legislative Office. “Though this administration’s attempts to be transparent are laudable, the reality has been that it is just as secretive as its predecessor. Congress has the tools to curb this excessive secrecy but it must be more aggressive in using them. It’s time to drastically overhaul the way our government classifies information.

6. Real ID — The 2005 Real ID Act, rammed through Congress by being attached to a unrelated, "must pass" bill, lays the foundation for a national ID card and makes it more difficult for persecuted people to seek asylum. Under the law, states are required to standardize their driver’s licenses (according to a still undetermined standard) and link to databases to be shared with every federal, state and local government official in every other state Real ID requires people to verify legal residence in the US in order to get a driver’s license, permits secret deportation hearings and trials, reduces judicial review of deportation orders and makes non-citizens (including long-time permanent residents) deportable for past lawful speech or associations.

7. No Fly and Selectee Lists — The No-Fly list was established to keep track of people the government prohibits from traveling because they have been labeled as security risks. Since 9/11 the number of similar watch lists has mushroomed to about 720,000 names, all with mysterious or ill-defined criteria for how names are placed on the lists, and with little recourse for innocent travelers seeking to be taken off them. The lists are so erroneous several members of Congress, including Senator Ted Kennedy (D-MA), have been flagged.

8. Political Spying — Government agencies — including the FBI and the Department of Defense — have conducted their own spying on innocent and law-abiding Americans. Through the Freedom of Information Act, the ACLU learned the FBI had been consistently monitoring peaceful groups such Quakers, People for the Ethical Treatment of Animals, Greenpeace, the Arab American Anti-Defamation Committee and, indeed, the ACLU itself.

9. Abuse of Material Witness Statute — In the days and weeks after 9/11, the government gathered and detained many people — mostly Muslims in the US — through the abuse of a narrow federal technicality that permits the arrest and brief detention of "material witnesses," or those who have important information about a crime. Most of those detained as material witnesses were never treated as witnesses to the crimes of 9/11, and though they were detained so that their testimony could be secured, in many cases, no effort was made to secure their testimony.

The government has found alternative ways to hold people indefinitely without charge, sometimes simply because they believe the person might do something in the future. They have used immigration detention to target certain groups based on racial or religious profiling, abused federal grand jury conspiracy charges, and held activists on the vague charge of “material support.” [The Center for Constitutional Rights]

10. Attacks on Academic Freedom — The Bush administration has used a provision in the Patriot Act to engage in a policy of "censorship at the border" to keep scholars with perceived political views the administration does not like out of the United States. The government has moved to over classify information and has engaged in outright censorship and prescreening of scientific articles before publication.

The following two measures may be added to this list of abuse of power:

1.  In August of 2002 the Department of Justice initiated the National Security Entry/Exit Registration System (NSEERS) "special registration" program requiring nearly 85,000 men from 24 Muslim countries and North Korea to voluntarily report to INS facilities for "special registration" which entailed fingerprinting, photographing, and questioning about their immigration status. The men were required to appear for annual interviews if they stayed in the US for more than one year and to register with immigration officials when they leave the country.

While no terrorist has been found through the program 13,000 of the men who voluntarily reported ended up in deportation proceedings due to their immigration status. In December 2003, the NSEERS program was supplemented by US-VISIT, a program that takes biometric measurements of people entering the US from certain countries including fingerprints and face scans.

On April 27, 2011, The Department of Homeland Security (DHS) announced the end of the National Security Entry-Exit Registration System (NSEERS). This special registration process is no longer required. 

2. In October of 2006 The Military Commissions Act (MCA) was signed into law, effectively creating a separate system of justice for non-citizens. The act denies non-citizens the right to challenge their detention in court, allows any non-citizen to be tried by military commission and permits indefinite detention of non-citizens. The act will also allow non-citizens to be convicted on the basis of coerced testimony, hearsay evidence and warrantless searches, and sanction interrogation practices that amount to torture. This law effectively abolished habeas corpus for individuals declared "enemy combatants" by the U.S. government.

The American Civil Liberties Union (ACLU) reports that “the Military Commissions Act gives the president absolute power to decide who is an enemy of our country and to imprison people indefinitely without charging them with a crime.” According to ACLU’s MCA fact sheet: “This law removes the Constitutional due process right of habeas corpus for persons the president designates as unlawful enemy combatants. It allows our government to continue to hold hundreds of prisoners more than four years without charges, with no end in sight.”

Senator Obama voted against the Military Commissions Act of 2006, which stripped the federal judiciary over habeas corpus review power over aliens detained abroad. Obama gave a speech that September on the Senate floor pleading his colleagues to amend the bill and restore habeas corpus. He criticized the Detainee Treatment Act and lamented the procedural inadequacy of the Combatant Status Review Tribunals. He pointed out the irony of the multi-tiered judicial processes used to process so-called enemy combatants. [5]

Obama appealed to habeas corpus many times in public, casting his lot with these principles that were part of the "Anglo-American legal system for over 700 years." "The great traditions of our legal system and our way of life" were at stake, he boldly said. He repeatedly said we must close down Guantanamo, and he would do so. He cheered on the Boumediene v. Bush decision in 2008 that overturned the military commissions act's worst elements and extended habeas to Guantanamo. He pointed out that the commissions were not even yielding many convictions, and consistently decried the "legal black hole" of having a system unchecked by habeas corpus, prisoner of war protections or the Geneva Convention. [6]

Continued on Page two