If you're a citizen—and if you haven't tried to organize any major protests lately—you might easily have missed the rupture. It's the liberties of noncitizens that have been most severely curtailed in the past year. In immigrant communities, the tear feels seismic.
Midwood, Brooklyn, home to some 150,000 Pakistanis, saw two planeloads of its young men sent home in August after long detentions by the Immigration and Naturalization Service.
The annual Pakistani festival days later drew less than half the usual crowd of 80,000, according to Asghar Choudhri, president of the Pakistani-American Federation of New York. "People are too afraid to come out," he explains.
"It's like a third-world country here. They come get you, throw you in jail, and you can't say anything." Because he is a U.S. citizen, Choudhri says his neighbors, terrified of lingering too long in public, often ask him to pick up groceries or run other errands for them. Local businesses have been closing in droves.
Polls have shown that at least 40 percent of Americans are willing to give up some civil liberties for the sake of security, but as constitutional lawyer David Cole has pointed out, so far it's not our own freedom we've been sacrificing.
If history is any guide, that could quickly change. From the invoking of the 1798 Enemy Alien Act during the 1941 internment of Japanese American citizens to McCarthy's use of the tools of 1919 Palmer Raids in the witch-hunts of the 1950s, the Feds have repeatedly sharpened their teeth on immigrants before closing their repressive jaws on all dissidents and undesirables. Indeed, many of the post-9-11 provisions swept into place by Ashcroft—such as those for the tracking and eventual punishment of would-be perpetrators of "domestic terrorism"—focus primarily on citizens.
Balanced against security concerns at a time of war, the old dictum holds, civil liberties spring back to full force when danger has passed. In an endless "war on terrorism" that soon might include attacks on Iraq, those springs could get mighty rusty.
Power Grab: Kicking Over Checks and Balances
In the fearful weeks immediately after September 11, Congress and the American people gave the Bush administration the benefit of the doubt, supporting a rash of new measures to get to the bottom of the heinous attacks and to protect us from "sleeper" cells hatching plots on our shores, as well as from enemies preparing strikes from afar.
On September 14, Congress quickly passed the Authorization for Use of U.S. Military Force resolution, granting the president carte blanche to wage war against anybody he deemed responsible for the hijackings.
And in October, with hardly enough time even to read the 342-page document, much less debate it, lawmakers rushed through sweeping anti-terrorism legislation whose very name and jingoistic acronym—the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (or USA Patriot) Act—made it unassailable.
Scores of state and local copycat laws soon followed.
Meanwhile, Attorney General Ashcroft granted himself and the agencies he oversees a spate of new powers.
By decree, he suspended attorney-client privilege.
Soon after, he unilaterally removed restraints on the FBI that had been put in place after the excesses of the 1960s and '70s, unleashing agents to sniff around community meetings, political gatherings, religious services, and even your e-mail messages and Web site visits, without having any evidence, nor even a good hunch, that anything illegal is afoot.
Not to be outdone, Bush issued a few executive orders of his own. One called into being military tribunals in which "enemy combatants" could be arrested, tried, convicted, and sentenced to death entirely in secret and with no opportunity for judicial review. Another rescinded the planned release of the papers of former presidents, effectively closing the public record.
Civil libertarians, immigrant advocates, and human rights activists frantically sent up warning flares, highlighting various ways the new laws, regulations, and acts of fiat threatened various constitutional protections. "There is no doubt that if we lived in a police state it would be easier to catch terrorists," said Russell Feingold, who braved the only nay vote on the USA Patriot Act in the Senate. "That would not be America."
The Big Chill
Perhaps it wasn't America in those late months of 2001 as a disquieting chill wafted in with the winter wind. During the past year, thousands of immigrants were swept up and disappeared into detention and secret trials; racial profiling turned from an increasingly discredited and offensive means of crime-fighting into a brazen national policy; the military tribunals were established with no public outcry (and two American citizens tagged as "enemy combatants" have been denied a full and fair trial); some officials even called for using torture to get detainees to confess—or at least recommended outsourcing interrogations to countries that aren't so squeamish about applying physical pressure.
If you had a problem with any of that, you were advised to keep it to yourself, as the president's spokesperson Ari Fleischer warned that Americans should "watch what they say." And if anyone dared to point out the totalitarian tone of this remark, or to question government measures that paid little heed to the Bill of Rights, the attorney general had a quick rebuke: "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists."
The frost trickled down from government into all areas of civic life—even those most depended upon to keep debate open and vigorous. Newspaper columnists, cartoonists, and an irreverent TV talk-show host were fired for questioning whether the men who slammed airplanes into the World Trade Center and the Pentagon were actually cowards, or whether the president, who hid out in some cushy compound while the towers crumbled, was genuinely brave.
At the University of South Florida, Sami Al-Arian, a tenured associate professor of computer science—and a founder of the campus's Islamic studies center—was fired in December for having expressed hotheaded anti-Israel views a dozen years ago.
The anti-multi-culti American Council of Trustees and Alumni—with the VP's wife Lynn Cheney and Democratic senator Joseph Lieberman in the forefront—attacked colleges and universities as the "weak link" in America's response to September 11, asserting in an overheated report that "when a nation's intellectuals are unwilling to defend its civilization, they give comfort to its adversaries" and naming more than 40 professors for uttering such seditious statements as "We need to understand the reasons behind the terrifying hatred directed against the U.S. and find ways to act that will not foment more hatred for generations to come."
Dredging up the old statements, The O'Reilly Factor and local Florida shock-jocks had recklessly denounced Al-Arian for fomenting jihad under the Tampa palms, and he soon found himself unemployed.
College frosh A.J. Brown opened her door in Durham, North Carolina, one October evening as she was getting ready for a date to find a couple of local secret service officers who had been tipped off about the "un-American" propaganda in her apartment—a poster, it turned out, protesting the record number of executions in Texas under Bush's governorship. Brown told The Progressive magazine that the officers asked whether she had any pro-Taliban material.
"No," she replied. "I think the Taliban is just a bunch of assholes." That, apparently, sufficed to show how united Brown stands: after 40 minutes in her apartment, the officers left.
Other outlandish cases of repression and neighborly ratting crept into national consciousness—or at least were splashed across lefty Web sites—as the year wore on: the guy in San Francisco who got a visit from the FBI after he'd questioned Bush's motives for the war in a conversation at his gym; the student teacher in Maine sacked for giving a lesson on Islamic culture in a 10th-grade world history class; the two men in Chicago who were subjected to interrogations by cops and a federal postal inspector because at their local post office, they'd requested stamps that were not emblazoned with the American flag.
Death of Due Process & Flouting the First Amendment
Our attorney general's name doesn't lend itself as readily as Joe McCarthy's to the mellifluous abstract noun that came to define the witch-hunts, loyalty oaths, and blacklisting of the '50s: "Ashcroftism" is not likely to enter American parlance. But if it did, the term would describe not only the climate of enforced conformity, but the administration's high-handed disregard for the most fundamental of constitutional protections: First Amendment rights to free association and free speech and the Fifth Amendment right to due process.
The most egregious breach has been the roundup and "preventive detention" of thousands of Muslim, Arab, and South Asian immigrants under an unprecedented veil of secrecy. (The exact number cannot be known; the government stopped releasing its running tally in November at 1147.) By now the vast majority has been deported or released without yielding any information about or connections to Al Qaeda.
The USA Patriot Act allows the attorney general to function as prosecutor, judge, and jury when it comes to incarcerating and deporting noncitizens. All he has to do is say he has "reasonable grounds to believe" that they have engaged in "terrorist" activity, and he can throw them in the clinker for a week before issuing any charges. Such detainees have no opportunity to mount a defense against their classification as "terrorist"—nor even to know why the attorney general has so branded them. What's more, the detainees cannot be released from detention—even if they prevail in immigration hearings—until the AG lifts the designation.
That's not so easy: The act defines terrorism broadly as the use of a "weapon or dangerous device (other than for mere personal monetary gain)" and expands "terrorist activity" to include providing material or other support to a "terrorist organization," even if that support goes to legitimate, nonviolent efforts by a political group that may also have a military wing.
Under this Orwellian twisting of terminology, grabbing a bottle in the midst of a barroom brawl could be deemed terrorism. So could sending schoolbooks to Afghanistan's Northern Alliance, should the old warlords fall out of favor with the U.S. Merely associating with activists from such groups could be grounds for deportation.
Of course, Ashcroft has gone even further without having to invoke the USA Patriot Act. He simply changed the regulations that govern INS detention. By declaration, he expanded from 24 to 48 hours the period the INS can detain someone without charges, and added that in times of emergency, an unspecified "reasonable" period of time was permissible, giving agents leave to incarcerate first and then dig up minor immigration violations as justification.
The End of Privacy
A man approaches a librarian to ask for help finding a text. "These books are no longer available," she replies, in a pinched, Peter Lorre-like voice. "May I have your name please?" A couple of suited thugs take the library patron away.
The scene comes from one of a series of patriotic public service announcements produced for the Fourth of July by the Ad Council, which feature creepy Big Brother scenarios followed by the legend "What If America Weren't America?
Freedom: Appreciate It, Cherish It, Protect It." Trouble is, the library segment is no fantasy.
As far as she knows, there aren't yet any goons stalking the stacks, says Emily Sheketoff, executive director of the Washington office of the American Library Association. But under the USA Patriot Act, law enforcement officials can force librarians (and booksellers) to hand over records of who checked out what books, and what Web sites they visited without the high bar of "probable cause" required for searches under the Fourth Amendment. Librarians, furthermore, must not tell anyone such records have been requested—not even the patron being investigated. If they refuse to fork over the records, they can go to jail.
"What books you read gets very close to what thoughts you think," says Sheketoff. "This is very dangerous."
It's not the only way Ashcroft has found to bore into people's privacy. The USA Patriot Act authorizes, among other intrusive instruments, roving wiretaps and "sneak-and-peak searches"—covert snooping in your home or office that you might not even get to know about for 90 days. In the meantime, the FBI could plant a "Magic Lantern" on your computer, recording all your keystrokes for your snoop's next visit.
Meanwhile, when he unilaterally lifted restraints on the FBI, Ashcroft reopened the door for COINTELPRO—counterintelligence program—the massive FBI spying operation against law-abiding civil rights, anti-war, and other activists run by J. Edgar Hoover from the mid '50s to the early '70s. In 1976, after a year-long investigation, the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Frank Church, blasted COINTELPRO for methods "indisputably degrading to a free society" in "a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association."
Though Church promised that "never again will an agency of the government be permitted to conduct a secret war against those citizens it considers a threat to the established order," COINTELPRO is, for all intents and purposes, back with a vengeance.
Those activists old enough to remember the snitches in their midst in the '70s have long suspected that something akin to COINTELPRO never entirely went away. Acting in the open, they have not much worried. "We've just always assumed they were watching us," says Father Roy Bourgeois, 63, founder of the Schools of the Americas Watch, which organizes a protest every November at Fort Bening, where U.S. officers have trained death squad generals and torturers from Latin America.
What did surprise Bourgeois was that this past November, the school sought an injunction against the annual nonviolent demonstration of some 10,000 protesters. "They said it was not appropriate during the war on terrorism," Bourgeois recalls, "and people started to say that we were siding with Al Qaeda by exercising our rights to assembly and speech. We said, we too want to close down terrorist training camps, and we should start with the one in our own backyard."
Some 36 demonstrators were prosecuted for a trespassing misdemeanor in November—and 29 are about to go to federal prison, for sentences ranging from three to six months.
Might they be tarred in the future under the Patriot Act as "domestic terrorists"? Bourgeois shrugs off the possibility, noting that the SOAW demos are thoroughly nonviolent. But the amorphous definition— "acts dangerous to human life that are a violation of the criminal laws" that "appear to be intended . . . to influence the policy of a government by intimidation or coercion"—can describe any civil disobedience action in which an overheated cop gets into a tussle with a hepped-up protester.
Meanwhile, since last September, funds and technology have poured from the Justice Department and FBI into local police departments to help them beef up their "red squads"—cops who infiltrate political groups and collect data on their members, even when there's no illegal activity.
It's not lost on protesters who showed up for the Republican convention in Philadelphia in 2000 that the Pennsylvania governor who coordinated the FBI and local and state police to infiltrate, tap, disrupt, and covertly snoop on demonstrators at the time was none other than Tom Ridge, head of the new Homeland Security Department. Under his watch, legitimate protests were broken up, their leaders were arrested, and bail was set as high as $1 million. In the end, 95 percent of the charges against protesters were thrown out.
Ashcroft to Congress: Drop Dead
After nearly a year of unbridled expansion of executive powers, some checks and balances are finally beginning to kick in. In recent weeks, a series of heartening court decisions has slammed the Ashcroft strategy of surveillance overkill and unwarranted secrecy.
Ruling late last month that the government could not close deportation hearings against Rabih Haddad, a Muslim community leader in Michigan, the Sixth U.S. Circuit Court of Appeals asserted, "The executive branch seeks to uproot people's lives, outside the public eye and behind a closed door." But, wrote Judge Damon Keith, "when government begins closing doors, it selectively controls information that rightly belongs to the people. Selective information is misinformation."
More surprising, the secret court that oversees the Foreign Intelligence Surveillance Act (FISA), deciding whether information gathered for foreign intelligence can be forwarded to criminal prosecutors, rebuked the administration for seeking broader powers under the USA Patriot Act.
In an unprecedented public statement, the FISA court said it had documented more than 75 cases of the FBI misleading the court in trying to justify its need for wiretaps and other electronic surveillance. Given this track record, the FISA court concluded that the FBI could not be trusted with looser policies that, it said, "are not reasonably designed" to protect the privacy of law-abiding citizens.
Meanwhile, after a summer recess, Congress, like a creature evolving out of the primordial ooze, is beginning to walk upright, and may soon even develop a spine—if for no other reason than its members being rankled by the arrogance of Ashcroft.
Every time legislators have tried to assert the oversight they are paid to exercise, the attorney general has essentially told them to drop dead. In June the committee on the judiciary submitted 50 questions to the attorney general on the implementation of the USA Patriot Act.
How many times has the Department of Justice authorized the surveillance of facilities used by American citizens and resident aliens, and what assurances are in place to make sure such orders "are not sought solely on the basis of activities protected by the First Amendment?" goes one typical question. And the typical answer came back last in July: That's classified information.
Congress won't keep pushing—especially not right before an election—without pressure from the public.
Like any muscle, democratic freedoms atrophy if they are not exercised. That's what Sacramento Bee publisher Janis Besler Heaphy wanted to tell graduates at California State University when she was invited to give a commencement address last December.
"The Constitution makes it our right to challenge government policies,"
she said. "Our culture makes it our duty.
But the students didn't hear her.
Notes: The Corporation
They drowned her out and drove her from the stage with their patriotic shouting.
When the State allows the formation of a corporation it may control its creation by establishing guidelines (statutes) for its operation (charters). Corporations who use the roads in the course of business do not use the roads in the ordinary course of life. There is a difference between a corporation and an individual. The United States Supreme Court has stated:
When stopped by the police
"...We are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for examination on the suit of the State. The individual may stand upon his Constitutional Rights as a Citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to investigation, so far as it may tend to incriminate him.
He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life, liberty, and property. His Rights are such as the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his Rights are the refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under warrant of law. He owes nothing to the public so long as he does not trespass upon their rights.
"Upon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation.
There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that the State, having chartered a corporation to make use of certain franchises, could not in exercise of its sovereignty inquire how those franchises had been employed, and whether they had been abused, and demand the production of corporate books and papers for that purpose."
Hale vs. Hinkel, 201 US 43, 74-75
Corporations engaged in mercantile equity fall under the purview of the State's admiralty jurisdiction, and the public at large must be protected from their activities, as they (the corporations) are engaged in business for profit.
"...Based upon the fundamental ground that the sovereign state has the plenary control of the streets and highways in the exercise of its police power (see police power, infra.), may absolutely prohibit the use of the streets as a place for the prosecution of a private business for gain. They all recognize the fundamental distinction between the ordinary Right of the Citizen to use the streets in the usual way and the use of the streets as a place of business or a main instrumentality of business for private gain. The former is a common Right, the latter is an extraordinary use. As to the former, the legislative power is confined to regulation, as to the latter, it is plenary and extends even to absolute prohibition. Since the use of the streets by a common carrier in the prosecution of its business as such is not a right but a mere license of privilege."
Hadfield vs. Lundin, 98 Wash 516