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Civil Liberties and America’s War on Terrorism
By Mary-Kate Smith, Winsted
While it is important for our governors to take action to protect the safety of Americans, those actions must be carefully planned so that they do not trample on hard-won civil rights and liberties. Of concern is whether the government response to the tragedy of September 11, 2001 has been implemented with this in mind.
On May 30, Attorney General John Ashcroft announced revisions to the FBI guidelines. Mr. Ashcroft claims that these new measures are necessary to protect Americans’ democracy and freedom. He argues that the new guidelines support four main principles. First, the FBI’s highest priority is the war against terrorism. Second, the FBI must investigate aggressively, in advance, in order to prevent terrorism. Third, superfluous red tape must be removed so that it does not "interfere with the effective detection, investigation, and prevention of terrorist activities." (This means that special agents in charge of field offices can authorize specific anti-terrorism measures without approval from headquarters.) Fourth, the new guidelines expand the FBI’s ability to seek information from all lawful sources to which the FBI was limited in the past, including foreign intelligence and domestic commercial databases.
The surveillance guidelines that Mr. Ashcroft issued allow the FBI to monitor Internet sites, libraries, churches and political organizations, whether or not there is evidence of criminal activity. The guidelines also license the FBI to access commercial data such as credit card usage and pharmaceutical prescriptions.
Mr. Ashcroft and the Department of Justice have received extensive criticism for these new guidelines. Critics argue that these revisions not only disregard but threaten core civil liberties which are at the heart of our democracy. Moreover, critics maintain that the FBI’s failure to properly analyze and share information does not justify broadening the scope of the FBI’s surveillance capabilities.
Criticism has been levied from both sides of the political spectrum, most notably from House Judiciary Committee Chair James Sensenbrenner (R-WI), a conservative Republican. Sensenbrenner stated that he supported the former guidelines as an important limitation on FBI investigatory practices. He worries that the new guidelines could turn back time to the counter-intelligence programs of the 1960s and 1970s when the FBI spied extensively on civil right activists, religious organizations and peace activists, including Martin Luther King, Jr. Sensenbrenner warns that "these important safeguards of American privacy and freedom should not be significantly altered without careful consideration and a full explanation of the reasons for any changes."
Sensenbrenner’s words are reassuring, but are puzzling in light of the USA Patriot Act and military tribunals. Within a month after the atrocities of September 11, 2001, Mr. Ashcroft drafted the USA Patriot Act, which is an enormous 342-page document that Congress rapidly passed. According to the Congressional Record, the bill was introduced in the House of Representatives on October 23, 2001 and passed the next day. On October 25, the Senate considered and passed the bill; it became law on October 29. It is difficult to imagine that our representatives read, understood and considered this law in such a short period of time. Nevertheless, the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001" is now law.
The Act’s purpose is to "deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." The Patriot Act gives the federal government the power to detain an individual up to seven days without charges if that individual is suspected of being a terrorist. Additionally, the law gives the federal government enhanced surveillance power that expands its authority to intercept oral, wire and electronic communications relating to terrorism and computer fraud offenses. These enhancements have been criticized as undermining U.S. constitutional protections because they disregard civil liberties and current due process requirements.
In November 2001, President George W. Bush issued a military order that authorizes special military tribunals to try foreigners who are suspected of terrorism. The military order calls for secret trials and ignores due process and evidentiary rules that are generally recognized in criminal cases in the United States courts. Additionally, under the military order, the detainees’ right to appeal the decision of the military tribunal to the United States, any foreign nation, or to any international tribunal is denied.
Since the attacks on the World Trade Center and the Pentagon, 1,200 Muslim and Arab immigrants have been detained and were deprived of contact with their families and lawyers for several months. Many of them were prosecuted in secret trials. The United States government has approximately 325 detainees in custody even though only one of them, Zacarias Moussaoui, is accused of terrorism. Most of the others are charged only with overstaying their tourist visas or similar violations.
More recently, the Administration announced its plan to create a new Homeland Security Department that will combine 22 individual agencies and federal programs into one department. Many worry that the new department will not have any meaningful effect because the plan does not fully integrate the CIA and FBI. Under the plan, the new department will not have authority over the FBI and CIA, but will only analyze intelligence submitted by the FBI, CIA and other sources.
We need to remember the long-standing law that separates the FBI and the CIA to protect citizens from a centralized secret police. The National Security Act of 1947, which first established the CIA, provides that, "The Agency shall have no police, subpoena, or law enforcement powers or internal security functions." The CIA is also prohibited from gathering intelligence on U.S. persons. Although the law has been amended over the years, the general intent to prevent a secret national police force remains the central theme. Indeed, White House chief of staff Andrew Card maintains that the Administration excluded the FBI from the plan so that the new department does not become a Soviet-style secret police.
It is troubling that a so-called Homeland Defense Department has the authority to gather information from all intelligence departments as well as from other data collection agencies, analyze it, and then potentially employ the information to enforce internal security functions against citizens.
One of the most disturbing reactions to the tragedy of September 11, 2001 is Mr.Ashcroft’s statement to the Senate Judiciary Committee in December 2001. He stated that critics who "scare peace-loving people with phantoms of lost liberty only aid terrorists, for they erode our national unity and diminish our resolve." In effect Mr.Ashcroft has labeled dissent or criticism of government policies as unpatriotic, risky, and a threat to national security. The Attorney General forgets that without public debate and a knowledgeable citizenry, our civil rights, liberties and democracy erode. We need to remind the Attorney General of the words of Benjamin Franklin: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Will these measures actually make us safer? Read my next submission to The Voice.
Ms. Smith is an intern at the Office of the Community Lawyer in Winsted, and a student at the University of Connecticut Law School.
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