Source: Op-Ed News.Com

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

Part One   Part Two  Part Three

By Abdus-Sattar Ghazali

 August 25, 2011

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]

(This is part one of a three-part series.)

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]

References 

[1] One Nation Indivisible, under God, with Liberty and Justice for All: Civil Rights for Arabs, Muslims, and South Asians by Prof. Gary Orfield – May 2003

[2] New target of rights erosions: U.S. citizens By Glenn Greenwald – May 13, 2010.

[3] Ibid.

[4] Top Ten Abuses of Power Since 9/11 by ACLU

[5] Civil Liberties in Obama’s America by Anthony Gregory – March 20, 2010.

[6] Ibid.

August 26, 2011

(This is part two of a three-part series.)

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. Peacemaking and whistleblowing has been virtually criminalized. FBI agents encouraged to search your trash, public databases just to sniff around for crime. Obama administration wants to read your email and search your laptops.

Criminalizing peacemaking 

In June 2010, the Supreme Court exposed Americans to jail sentences of up to 15 years just for giving advice to groups the U.S. government considers untouchable. In the course of arguing the Holder v Humanitarian Law Project case in the Supreme Court, Georgetown Law Professor David Cole warned that the federal law against providing “material support” to U.S.-designated terrorist groups could be used to improperly target and prosecute a whole range of humanitarian, human rights and peace advocacy groups based on protected exercise of speech and other First Amendment rights.

The Patriot Act has broadened the “material support” concept to encompass “expert advice and assistance” to “foreign terrorist organizations” as designated by the Secretary of State. As journalist Courtney Martin noted, “The definition of material support includes everything from providing aid to distributing literature to political advocacy.”

During arguments in February 2010, Solicitor General Elena Kagan, defended the law and urged a broad interpretation that would allow prosecution of a U.S. citizen who filed a legal brief on behalf of a terrorist organization. “What Congress decided,” Kagan told the court, “is that when you help Hezbollah build homes, you are also helping Hezbollah build bombs.”

In Holder v. Humanitarian Law Project, the court ruled that the USA Patriot Act’s expanded definition of “material support” for “foreign terrorist organizations” passes Constitutional muster. The broad wording of the statute not only makes it a crime to support violent activities, but also prohibits Americans from offering “services” or “training, expert advice or assistance” to any entity designated as a terrorist group.

In a 6-3 opinion written by Chief Justice John G. Roberts Jr., the court essentially dismissed a challenge to the material support law brought by the Humanitarian Law Project. The project wanted to advise the Kurdistan Workers’ Party (PKK) — which for years has been on the U.S. terrorist list — on filing human rights complaints with the United Nations and conducting peace negotiations with the Turkish government.

Justice Breyer, who was joined in dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor, proposed a narrower interpretation of the material support law: Individuals should not be subject to prosecution unless they knowingly provided a service they had reason to believe would be used to further violence.

The Supreme Court decision essentially makes advocacy of peace and humanitarian issues illegal with respect to the 40 or so designated groups.

To borrow Joshua Holland, the material support law essentially criminalizes promoting dialogue in conflict zones and undermines efforts to provide nonviolent solutions to previously violent groups, equating such actions with trafficking weapons.

All kinds of missionaries, fair-election proponents and humanitarian workers could be placed in jeopardy. People like Three Cups of Tea author Greg Mortenson could be in trouble since he has had to meet with a variety of foreign country nationals in war zones to successfully formulate consensus to build schools for girls in Pakistan and Afghanistan. So could former President Jimmy Carter who engages in pro-democracy efforts to monitor election fraud in many places in the world.

Civil liberties advocates said they also feared repercussions for U.S.-based critics of the Israeli government, who might be charged with aiding Hamas, which Washington has designated as a terrorist group. One such critic is former President Jimmy Carter, whose private Mideast diplomatic efforts have included contact with Hamas.

The ruling “threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence,” said Carter, whose organization filed arguments with the court.

Since 2001, Islamic charities have struggled to deal with the uncertainty caused by the material support provision. According to the Bill of Rights Defense Committee, “Muslims fulfilling their obligation to contribute to [charity]“risk inadvertently supporting a current or future [Foreign Terrorist Organization]. In 2004, in order to avoid this, Muslim leaders asked the DOJ for a list of acceptable charities. The DOJ responded that their request was “impossible to fulfill’ and that it was “not in a position to put out lists of any kind, particularly of any organizations that are good or bad.’” Several people have already been jailed in the United States for their charitable activities in the Islamic world. [1]

Criminalizing Whistleblowing 

As Tom Burghardt, the San Francisco Bay Area-based activist reports [2]:

The National Security State’s assault on our right to privacy comes hard on the heels on moves in Congress, spearheaded by troglodytic Republicans (with “liberal” Democrats running a close second) to criminalize whistleblowing altogether.

In February 2011, the Muslim-hating Rep. Peter King (R-NY) introduced the SHIELD Act in the House, a pernicious piece of legislative flotsam that would amend the Espionage Act and make publishing classified information, and investigative journalism, a criminal offense.

Also in February, legislation was introduced in the Senate that “would broadly criminalize leaks of classified information,” Secrecy News reported.

Sponsored by Senator Benjamin Cardin (D-MD), the bill (S. 355) “would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement,” Secrecy News disclosed.

In an Orwellian twist, Cardin, who received some $385,000 in campaign swag from free speech advocates such as Constellation Energy, Goldman Sachs and Patton Boggs (Mubarak’s chief lobbyist in Washington) according to OpenSecrets.org, said that the bill would “promote Federal whistleblower protection statutes and regulations”!

As Secrecy News points out, the bill “does not provide for a ‘public interest’ defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation.” In other words, you don’t need to know about government high crimes and misdemeanors. Why? Because we say so.

In November 2010, shortly after WikiLeaks began publishing Cablegate files, King fired off a letter to Secretary of State Hillary Clinton and Attorney General Eric Holder demanding that WikiLeaks be declared a “foreign terrorist organization” and the group’s founder declared a “terrorist ringleader.” We know the fate reserved for “terrorists,” don’t we? 

Obama Wants to Read Your Email [3] 

The Obama U.S. Department of Justice (DoJ) also wants another new law too. This one would require Internet companies to retain data and records of user activity online. In doing so, the Obama administration is supporting measures advocated by the Bush administration that pose a grave threat to free speech and the freedom of the Internet. The sweeping legislation would cover cell phone service, Internet records, and email.

Data retention legislation would jeopardize the privacy of millions of Americans who use the Internet. The Electronic Frontier Foundation (EFF) notes, “A legal obligation to log users’ Internet use, paired with weak federal privacy laws that allow the government to easily obtain those records, would dangerously expand the government’s ability to surveil its citizens, damage privacy, and chill freedom of expression.”

Once again, congressional Republicans are more than happy to cooperate in passing such a dangerous law; anything to go after those awful terrorists — even if it shreds the U.S. Constitution.

Laptops Galore [4] 

Although they can cite no legal basis for their high-handed actions, the U.S. Department of Homeland Security claims that its agents have the right to look though the contents of a international traveler’s electronic devices, including laptops, cameras and cell phones, and to keep the devices or copy the contents in order to continue searching them once the traveler has been allowed to enter the U.S., regardless of whether the traveler is suspected of any wrongdoing.

Documents obtained by the ACLU in response to a Freedom of Information Act (FOIA) lawsuit for records related to the DHS policy reveal that more than 6,600 travelers, nearly half of whom are American citizens, were subjected to electronic device searches at the border between October 1, 2008 and June 2, 2010.

No law authorizes this power nor is there any judicial or congressional body overseeing or regulating what DHS is doing.   And the citizens to whom this is done have no recourse — not even to have their property returned to them.

FBI agents encouraged to search your trash, public databases just to sniff around for crime  

The Federal Bureau of Investigation plans to issue new rules for its agents saying, essentially, that they can and should dig through our trash and search databases if people who aren’t suspects but who are simply being assessed or looked at. The new FBI trash-digging policy will be a part of the agency’s updated Domestic Investigations and Operations Guide, a source tells the New York Times. The changes apply not to criminal investigations but, apparently, to agents’ ability simply to sniff around “proactively,” according to the Times. The paper states that some agents wanted the trash-sifting powers so they could use evidence found among refuse to pressure people to snitch on others.

The F.B.I. recently briefed several privacy advocates about the coming changes. Among them, Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union, argued that it was unwise to further ease restrictions on agents’ power to use potentially intrusive techniques, especially if they lacked a firm reason to suspect someone of wrongdoing. “Claiming additional authorities to investigate people only further raises the potential for abuse,” Mr. German said, pointing to complaints about the bureau’s surveillance of domestic political advocacy groups and mosques and to an inspector general’s findings in 2007 that the F.B.I. had frequently misused “national security letters,” which allow agents to obtain information like phone records without a court order. [5]

Some of the most notable changes apply to the lowest category of investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and without firm evidence for suspecting criminal or terrorist activity. Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.   Mr. German said the change would make it harder to detect and deter inappropriate use of databases for personal purposes. [6]

The new rules will also relax a restriction on administering lie-detector tests and searching people’s trash. Under current rules, agents cannot use such techniques until they open a “preliminary investigation,” which — unlike an assessment — requires a factual basis for suspecting someone of wrongdoing. But soon agents will be allowed to use those techniques for one kind of assessment, too: when they are evaluating a target as a potential informant. Agents have asked for that power in part because they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others.  [7]

Freedom of Speech Curbs [8] 

As Geoffrey R. Stone, a professor of law at the University of Chicago and the chairman of the board of the American Constitution Society, wrote in the New York Times on January 3, 2011:

The so-called Shield bill, now introduced in both houses of Congress in response to the WikiLeaks disclosures, would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, “in any manner prejudicial to the safety or interest of the United States,” any classified information “concerning the human intelligence activities of the United States.”

Although this proposed law may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked. At the very least, the act should be expressly limited to situations in which the spread of the classified information poses a clear and imminent danger of grave harm to the nation.

And finally, a central principle of the First Amendment is that the suppression of free speech must be the government’s last rather than its first resort in addressing a problem. The most obvious way for the government to prevent the danger posed by the circulation of classified material is by ensuring that information that must be kept secret is not leaked in the first place.

If we grant the government too much power to punish those who disseminate information, then we risk too great a sacrifice of public deliberation; if we grant the government too little power to control confidentiality at the source, then we risk too great a sacrifice of secrecy. The answer is thus to reconcile the irreconcilable values of secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate information to the public.

Obama reverted to Bush detention policy in virtually every way 

After week one in the White House, Obama reverted to Bush detention policy in virtually every way. One of the first major disgraces concerned detainees at Bagram, the prison camp in Afghanistan, where Bush began shipping more detainees after Guantanamo was no longer his lawless playground, and where Obama has increased funding and the prison population. Four men sued for habeas relief. Justice John Bates, a federal judge appointed by Bush found that habeas should apply, in limited capacity, to Bagram, given that the Supreme Court ruled that it extended to Guantanamo. Obama’s administration appealed this ruling, using Bushian reasoning down the line. [9]

Bagram is even worse than Guantanamo, where at least the CRST process existed, and the military commissions have freed hundreds of people. Bagram is simply a dungeon beyond the law, and Obama has basked in it with only a little criticism from the left. As for Guantanamo, Obama had promised to close it by January 2010. It is not closed and current plans indicate it will be closed, perhaps around the end of Obama’s first term. There is talk of bringing Gitmo to the mid-west, which raises other concerns of setting the precedent that you don’t need to go to Cuba to find an American legal black hole. A cry for justice in the spirit of “Yes We Can” has morphed into a totalitarian-style five-year plan. And the abuses there have only gotten worse. [10]

Raymond Azar, Obama’s first rendition victim, was not even an alleged terrorist or belligerent. He was accused of a white-collar crime that shouldn’t even be a crime — failing to come forward regarding very minor corruption in defense contracting. But for an alleged white-collar non-crime, this Lebanese man working at Sima International was arrested in Afghanistan and, according to his testimony, taken to Bagram, deprived of sleep, stripped naked, subjected to extreme temperatures and stress positions, deprived of food, confined in a metal box and railroaded into a plea bargain lest he never see his family again. [11]

References

[1] How Easy Is It for Peaceful People to Violate the Patriot Act? By Joshua Holland

[2] The Obama Administration’s War on Civil Liberties by Tom Burghardt – Feb 21, 2011

[3] Civil Liberties We Are a Police State Bob Bauman – March 23, 2011

[4] Ibid.

[5] F.B.I. agents get leeway to push privacy bounds, New York Times — June 12, 2011]

[6] Ibid.

[7] Ibid.

August 28, 2011

(This is the final part of the three-part series.)

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 FBI is now investigating domestic peace activists and under the cover of studying “violent radicalization,” the already-fluid definition of “terrorism” is being broadened to encompass political activity and protest by dissident groups.

Mother Jones reports that after years of emphasizing informant recruiting as a key task for its agents, the FBI now maintains a roster of 15,000 spies — many of them tasked with infiltrating Muslim communities in the United States. Not surprisingly, the Associated Press reveals that the New York City Police Department have carried out covert surveillance on Muslims with the help of the CIA.

FBI now investigating domestic peace activists 

In the early morning of Sept. 24, 2010, the FBI agents raided homes of peace activists in Chicago and Minneapolis, issued subpoenas to 14 activists, and tried to question others around the country, including prominent antiwar organizers in North Carolina and California.

The raids were conducted under the pretext of investigating potential “material support” and “terrorism” charges. The targeted individuals included leaders of the Arab American Action Network, the Colombia Action Network, and the Twin-Cities Anti-War Committee. The FBI has said no arrests have been made, and there was there no “imminent danger” to the public. Instead it has claimed it is currently looking for evidence in an ongoing investigation for possible “material support” for terrorism.

The documents, which are not labeled as classified, suggest that activists’ involvement with people in Colombia sparked the investigation.

“The captioned case was initially predicated on the activities of Meredith Aby and Jessica Rae Sundin in support of the Revolutionary Armed Forces of Colombia (FARC), a U.S. State Department designated foreign terrorist organization (FTO), to include their previous travel to FARC-controlled territory,” one document says. “Since opening the original investigations, an additional 16 Subjects in six FBI Field Divisions have been identified.”

The document goes on to say that people in the Minneapolis, Chicago, Phoenix, Detroit, Los Angeles and Charlotte, N.C., divisions have “provided and/or conspired to provide material support to the FARC and/or the Popular Front for the Liberation of Palestine, also a U.S. State Department designated FTO.”

The documents given to the AP also include a strategic plan for the FBI’s raid, a subpoena, and a list of questions that agents would presumably use in an interview.   The subpoena, which was made public previously, orders Kelly to appear before a grand jury and bring information relating to any trips to Colombia, the Palestinian territories, Jordan, Syria or Israel. It also commands him to bring records relating to the Middle East and Colombia.

The documents include a list of over 100 questions.   The top of the list says the questions “pertain to a terrorism investigation.” Many deal with activities of the Freedom Road Socialist Organization, to which Kelly and Sundin both belong.

Former Reagan official Paul Craig Roberts believes that the US government by raiding the homes of anti-war activists is establishing in the mind of the public that anyone who criticizes the War on Terror is aligned with terrorists. He further argues that under the rubric of terror the government has stripped Americans of their civil liberties.

To borrow Kristen Boyd Johnson, there are two sides of the terror coin, after all: the people who want to kill you and the people who dislike the United States being at war all the time. Keep tabs on them both. Hell, just keep tabs on everyone. Everyone is now a terrorist.

Top Secret America

On July 19, 2010, the Washington Post published the first installment of its Top Secret America project, a two-year investigation into the national security buildup in the United States that followed the Sept. 11, 2001, terrorist attacks.

“The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work” the Post’s Dana Priest and William Arkin write. “After nine years of unprecedented spending and growth, the result is that the system put in place to keep the United States safe is so massive that its effectiveness is impossible to determine.”

Here are just a few of the investigation’s findings included in the online report [1]:

* “Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.”

* “An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.”

* “In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings — about 17 million square feet of space.”

Moreover, the Post writes, “51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks,” and “Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year — a volume so large that many are routinely ignored.”

The Violent Radicalization and Homegrown Terrorism Prevention Act 2007 

Perhaps more disturbing still is “The Violent Radicalization and Homegrown Terrorism Prevention Act of 2007″ (read Thought Control Act). The bill was passed on Oct 23, 2007 by a margin of 404-6 where as the Senate version of the bill is still awaiting action.

Under cover of studying “violent radicalization,” the bill would broaden the already-fluid definition of “terrorism” to encompass political activity and protest by dissident groups, effectively criminalizing civil disobedience and non-violent direct action by developing policies for “prevention, disruption and mitigation.”

Despite the fact that the legislation has not been signed into law, the Department of Homeland Security is moving towards implementing a provision of the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007.   One of the bill’s provisions gives the Department of Homeland Security the authority to fund a University based Center of Excellence to study ways to thwart what the government believes are extremist belief systems and radical ideologies of individual Americans.

The “Violent Radicalization and Homegrown Terrorism Prevention Act of 2007″ creates a ten member new commission which will study how to prohibit “. . . . .the process of adopting or promoting an extremist belief system . . . . .to advance political, religious, or social change.. . . .” Spreading these beliefs to “advance political, religious, or social change” is defined as “radicalization.” If you are trying to educate your fellow countrymen, to democratically influence popular opinion, then you may find yourself accused of “facilitating ideologically-based violence.”

It also establishes a Center of Excellence for the Prevention of Radicalization and Home Grown Terrorism that will study the social, criminal, political, psychological and economic roots of the problem to provide further suggestions for action to address these dangers.

The DHS is already funding a Center of Excellence to study thought criminals in the United States at the University of Maryland.

Under cover of studying “violent radicalization,” both bills would broaden the already-fluid definition of “terrorism” to encompass political activity and protest by dissident groups, effectively criminalizing civil disobedience and non-violent direct action by developing policies for “prevention, disruption and mitigation,” Tom Burghardt argues and calls it COINTELPRO 2.0.

The bill’s language hides its true intent 

The bill’s vague and open-ended language hides its true intent as to what “violent radicalization” and “homegrown terrorism” are? It will be whatever the administration says they are. Violent radicalization is defined as “adopting or promoting an extremist belief system (to facilitate) ideologically based violence to advance political, religious or social change.” [2]

Homegrown terrorism is used to mean “the use, planned use, or threatened use, of force or violence by a group or individual born, raised, or based and operating primarily with the United States or any (US) possession to intimidate or coerce the (US) government, the civilian population….or any segment thereof (to further) political or social objectives.” [3]

Along with other repressive laws enacted after 9/11, the new law may be used against any individual or group with unpopular views – those that differ from established state policies. Prosecutors henceforth will be able to target believers in Islam, anti-war protesters, web editors, internet bloggers and radio and TV show hosts and commentators with views the bill calls “terrorist-related propaganda.” [4]

Many observers fear that the proposed law will be used against U.S.-based groups engaged in legal but unpopular political activism, ranging from political Islamists to animal-rights and environmental campaigners to radical right-wing organizations. There is concern, too, that the bill will undermine academic integrity and is the latest salvo in a decade-long government grab for power at the expense of civil liberties. [5]

American Muslims alarmed at CIA-NYPD covert surveillance 

The seven-million strong Muslim American community was alarmed at the revelation that the New York City Police Department have carried out covert surveillance on Muslims with the help of the CIA. An Associated Press (AP) report recently published by the Washington Post [6] exposed the NYPD spy program, which is allegedly being conducted with the assistance of individuals linked to the CIA.

Following a month-long investigation, the AP reported that the NYPD is using covert surveillance techniques “that would run afoul of civil liberties rules if practiced by the federal government” and “does so with unprecedented help from the CIA in a partnership that has blurred the bright line between foreign and domestic spying.”

The AP report follows a recent Mother Jones [7] revelation that after years of emphasizing informant recruiting as a key task for its agents, the FBI now maintains a roster of 15,000 spies — many of them tasked with infiltrating Muslim communities in the United States. “In addition, for every informant officially listed in the bureau’s records, there are as many as three unofficial ones, according to one former high-level FBI official, known in bureau parlance as “hip pockets.” The informants could be doctors, clerks, imams. Some might not even consider themselves informants. But the FBI regularly taps all of them as part of a domestic intelligence apparatus whose only historical peer might be COINTELPRO, the program the bureau ran from the ’50s to the ’70s to discredit and marginalize organizations ranging from the Ku Klux Klan to civil-rights and protest groups.”

The AP investigative report revealed that the NYDP has dispatched teams of undercover officers, known as ‘rakers,’ into minority neighborhoods as part of a human mapping program. The report said: The NYDP have monitored daily life in bookstores, bars, cafes and nightclubs. Police have also used informants, known as ‘mosque crawlers,’ to monitor sermons, even when there’s no evidence of wrongdoing. The NYPD officials have scrutinized imams and gathered intelligence on cab drivers and food cart vendors, jobs often done by Muslims. Many of these operations were built with help from the CIA, which is prohibited from spying on Americans but was instrumental in transforming the NYPD’s intelligence unit, the AP report added.

Indiana Supreme Court rules against Fourth Amendment 

Indiana ‘s highest court has turned against our rights and the Constitution of the United States. The Supreme Court of Indiana decided on May 12, 2010 that the Fourth Amendment of the U.S. Constitution does not apply to the citizens of Indiana.

The Fourth Amendment to the United States Constitution, vacated by the Indiana Supreme Court, says: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Indiana Supreme Court, in a 3-2 decision, ruled that cops can force their way into your home without a search warrant. Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled that Hoosiers have no right to resist unlawful police entry into their homes.

Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all; a homeowner cannot do anything to block the officer’s entry.

The court’s decision stems from a Vanderburgh County case in which police were called to investigate a husband and wife arguing outside their apartment. When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.

Disastrous fallout of the ruling:   Radio host Mike Church has reported on his website that Newton County Sheriff Department head, Don Hartman Sr., contends the ruling means that random house to house searches are now possible. “According to Newton County Sheriff, Don Hartman Sr., random house to house searches are now possible and could be helpful following the Barnes v. STATE of INDIANA Supreme Court ruling issued on May 12th, 2011. When asked three separate times due to the astounding callousness as it relates to trampling the inherent natural rights of Americans, he emphatically indicated that he would use random house to house checks, adding he felt people will welcome random searches if it means capturing a criminal.”

In other words, the Fourth Amendment is dead, at least for the time being, in Indiana — and at least one “law officer” is ready to start searching houses at random. All he needs now is an excuse.

At the original trial, Barnes wanted the jury to be apprised of the Fourth Amendment’s limitations on police conduct regarding unlawful entry into his home. His tender instructions to the jury: “When an arrest is attempted by means of a forceful and unlawful entry into a citizen”s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.” The court refused to allow the reading, and Barnes was convicted of battery on a police officer, resisting law enforcement, and disorderly conduct.

Justice Robert Rucker and Justice Brent Dickson, dissented from the ruling, saying the court’s decision runs afoul of the Fourth Amendment of the U.S. Constitution.” In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally — that is, without the necessity of a warrant, consent or exigent circumstances,” Rucker said. “I disagree.”

Conclusion: Defending Our Civil Liberties 

Rights can never be taken for granted, Prof. Gary Orfield [8] argues by adding: In a nation that rightly proclaims its commitment to freedom across the world, our freedoms at home are our most precious asset and any threat to them undermines our credibility everywhere in an age of instant global communication. Prof. Orfield reminds us that the history of the United States is that rights are not given, they are won and they must always be defended.

The core challenge during the Obama era to civil liberties is to rollback the repressive policies of the Bush regime, while fighting any further erosion of constitutional rights. Many Americans resisted the attacks on civil liberties during the Bush administration. Over 400 local governments and several states passed resolutions supporting the Bill of Rights and objecting to parts of the Patriot Act and other post-9/11 laws, executive orders, and policy changes. Some cities passed ordinances directing police to facilitate, not impede, peaceful demonstrations.

Attacks on civil liberties are not minor infringements on the rights of a few extremists. Today they affect a vast cross-section of Americans. It will not be too much to say that the chilling effect of denials of our democratic freedoms curtails political debate within the U.S.

To borrow Paul Craig Roberts, an Assistant Secretary of the Treasury in the Reagan Administration, [9] today Americans are unsafe, not because of terrorists and domestic extremists, but because they have lost their civil liberties and have no protection from unaccountable government power. One would think that how this came about would be worthy of public debate and congressional hearings.

References

[1] Washington Post - July 19, 2010
[2] The Violent Radicalization and Homegrown Terrorism Prevention Act 2007 by Abdus Sattar Ghazali OpEd Nov 26, 2007
[3] Ibid.
[4] Ibid.
[5] Is America Already a Police State? by Nathan Coe – March 20, 2009
[6] With CIA help, NYPD built secret effort to monitor mosques, daily life of Muslim neighborhoods by Matt Apuzzo and Adam Goldman – Washington Post — August 24, 2011
[7] The Informants by Trevor Aaronson — Mother Jones – September/October 2011 Issue
[8] One Nation Indivisible, under God, with Liberty and Justice for All: Civil Rights for Arabs, Muslims, and South Asians by Prof. Gary Orfield – May 2003
[9] 9/11 After A Decade: Have We Learned Anything?   By Global Research — August 24, 2011

 

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