The War on Terrorism: A Threat to Freedom and the Rule of Law

Michael Ratner is a human-rights attorney and president of the New York–based Center for Constitutional Rights.

I am writing this article in unimaginable times. Since 11 September of last year, I have watched with shock and dismay as rights and legal protections embedded in the United States Constitution and in international law have been swept aside by a so-called war on terrorism. Fundamental legal protections that once limited arbitrary executive and government power to act against individuals have been discarded. Courts, which once stood as a safeguard against governmental lawlessness, have surrendered to new “anti-terrorist” measures. The laws of war themselves, fashioned over hundreds of years, have been swept aside. And people’s rights, struggled for and embodied in documents such as the Magna Carta, the French Declaration of the Rights of Man and of the Citizen, the Bill of Rights of the Constitution of the United States, and the International Covenant on Civil and Political Rights, are in jeopardy. We are truly entering a dark period.

 

I live a few blocks from the World Trade Center and saw first-hand the devastation and human suffering caused by the attacks of 11 September. Like everyone in New York City, I would like to live once again in a safe city. We want those who attacked us arrested and punished, and we want the network that plotted to harm us eliminated, so we will be safe from future attacks. But because safety at home has become such a paramount concern for those living in the United States, there appears to be broad popular support for the new anti-terrorism measures—even those that curtail freedom and constitutional rights.

 

Unfortunately, as long as people feel unsafe and subject to attack, they will accept severe restrictions upon their liberties and those of others, hoping that limits on their rights will somehow keep them safe. But it is hard to argue that building a Fortress America will really prevent another terrorist attack. The United States has 7,500 miles of border with Canada and Mexico and thousands of miles of coastline, most of it not patrolled. There are more than ten thousand air flights a day in the United States. Eleven million trucks and over two million rail cars cross into the United States each year, as do millions of non-citizen visitors. Terrorists intent on harm can easily slip into the country. This is not to say that good law enforcement has no role, but rather that all the laws in the world will not really make the United States safe.

 

If the US government truly wants its people to be safer and wants terrorist threats to diminish, fundamental changes in its foreign policies will be necessary. Although those changes are not discussed in this article, they concern the current role of the United States in the Middle East and elsewhere. As the ancient Arab proverb declares, “He who plunders others always lives in terror.” The United States’ actions in the Middle East, particularly its unqualified support for Israel, its embargo of Iraq, its bombing of Afghanistan and its actions in Saudi Arabia, continue to anger people and fertilise the ground where terrorists of the future will take root.

 

But there is very little room left in the United States for those who question the new anti-terror initiatives, or who identify problems with US policies as central to stopping terror. At this moment, all such criticism is considered the equivalent of support for those who attacked the United States. In December John Ashcroft, attorney-general of the United States, testified before a congressional committee that “to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists”. He went on to say that criticism of the administration “gives ammunition to America’s enemies and pause to America’s friends”.¹ Similarly, White House spokesman Ari Fleisher warned “all Americans … to watch what they say [and] watch what they do”.²

 

My own experience has borne out the degree to which the government’s message is being heard by citizens. Often, in media interviews, I raise questions regarding the treatment of the Guantanamo detainees, the detention of non-citizens within the United States, the use of military tribunals or the questioning by law enforcement officials of thousands of non-citizens. Typical of the hate mail I receive for expressing such sentiments is: “Why don’t you go over to Afghanistan and live with the murderers and try to protect them over there? You don’t belong in this country.”

 

Without basic alterations in US policies, I believe there is little hope of ending the draconian curtailment of liberties in the United States and elsewhere. People will continue to live in fear and accept restrictions on their freedoms in the belief that it will make them safer. The struggle to regain lost liberty and the struggle to create a more just world abroad are really one struggle—and that is not just rhetoric. We and our children will not be safer and freer until the world is as well. In the current climate, it will obviously not be easy to change substantially the course the United States and its allies have embarked upon. Yet the situation is not utterly hopeless. The US administration has been forced to modify certain of its more draconian proposals, such as its refusal to apply any part of the Geneva Conventions to combatants captured in Afghanistan. It will most likely have to reduce—though not eliminate—the unfairness of secret trials before military tribunals. Following a great uproar in the press, it has apparently closed the disinformation and propaganda office it had established at the Pentagon.

 

These changes in policy have resulted, in part, from dissent within the United States, including even that of pragmatic voices within the US armed forces. More importantly, however, it has been the countries of Europe, some of which still take the rule of law seriously, that have pressed these modifications upon the United States.

 

The following sections of this article discuss some overall themes that characterise the current period, and analyse more closely some of the new “anti-terror” laws and restrictions, particularly those in the United States. I hope that voices around the world, particularly in Europe, can respond to these issues in ways that genuinely help to transform current US policies into more just ones.

Overview: After 11 September

The first US government reaction to 11 September was, and remains, to make war abroad. To fight this war, the US Congress on 14 September, in a resolution entitled “Authorization for Use of United States Military Force”, gave the president unbridled power to go to war. He was authorised to attack any nation, organisation or person involved in any way in the 11 September attacks, whether directly or by harbouring others involved in those attacks. No nation, organisation or person was named; the decision about who was guilty was left solely up to the president. He can use military force whenever he wants anywhere in the world. The resolution has no time limit; the war may never be over.

 

The second reaction was for the US government to begin a permanent war on terror at home, by building a fortified surveillance and national security state. However, even on its own terms, the claimed necessity for this home war is problematic. The legislation and other governmental actions to step up domestic surveillance are premised on the belief that intelligence agencies failed to stop the 11 September attack because they lacked the spying capability to find and arrest the conspirators. Yet recently it has come to light that nine of the hijackers were asked for identification and searched on 11 September because they fitted profiles based on appearance, ethnicity or erratic behaviour, but none was arrested. Two of them were even on a FBI terrorist watch list. Only now is Congress considering a limited, mostly secret, investigation of what went wrong, headed by a former CIA official. Thomas Powers, a respected critic of the intelligence agencies, emphasised the importance of conducting such an investigation before any new intelligence powers are granted:

 

The bid for increased surveillance and intelligence gathering will become a very big mistake if Congress grants the FBI and CIA more power but fails to investigate what went wrong on Sept. 11th … Everybody’s afraid. They know they screwed up and if you have an investigation people will find out how.³

 

But any investigation into intelligence failures must contend with the desires of Attorney-General Ashcroft, a religious fundamentalist with an antediluvian record on civil rights as a senator. Ashcroft clearly sees 11 September as an opportunity to lift restrictions placed on the nation’s spy agencies in the 1970s, and to grant law enforcement agencies the additional powers they have been wanting for years.

 

The current circumstances that have called forth the US response at home and abroad have rarely, if ever, occurred in the nation’s past. Both the war abroad and the response at home have serious consequences for civil liberties and the rule of law. Among the most pernicious tendencies I see at work are the pervasive censorship of information, the silencing of dissent, and widespread ethnic and religious profiling. The war has already created a climate of fear in which neighbours live in suspicion of one another and people are afraid to speak out.

 

Overall, the new anti-terrorism laws represent a tremendous expansion of executive power. The president can now make war on anyone without additional congressional authority, can wiretap attorneys and their clients without a court order, can jail non-citizens permanently on the word of the attorney-general—even if they have committed no crimes—and can set up military tribunals able to mete out the death penalty without appeal. The structure of checks and balances, made up of the courts, Congress and the executive, that is purportedly the pride of the US constitutional system, is in jeopardy.

 

The new laws and restrictions also mean fundamental changes in the way the United States, historically a nation of immigrants, treats the twenty million non-citizens residing in the country. Since 11 September, enforcement of the new laws against non-citizens, mostly from the Middle East, has included incommunicado detentions, the questioning of thousands by FBI agents, and widespread racial, ethnic and religious profiling. The government’s campaign against non-citizens, particularly Muslims, has at times developed into explicit religious bigotry, as expressed in this remarkable claim by Ashcroft: “Islam is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you.”⁴

 

An unprecedented strengthening of the US intelligence and law enforcement apparatus, the erosion of the US system of checks and balances, a new xenophobia and anti-immigrant sentiment—all these tendencies are deeply troubling. They flow from concrete consequences of the war on terrorism, some of which will be discussed here. These include challenges to international justice, such as indefinite incarceration of battlefield detainees outside the standards of the Geneva Convention, military tribunals to try suspected terrorists, and the possible use of torture to obtain information. On the domestic front, there has been the creation of a special new cabinet office of Homeland Security, massive arrests and interrogation of immigrants, and the passage of legislation granting intelligence and law enforcement agencies much broader powers to intrude into the private lives of Americans. Recent initiatives—such as the wiretapping of attorney–client conversations, or the FBI’s new licence to spy on domestic religious and political groups—further undermine core constitutional protections. The situation, when coupled with the ideology of the Republicans currently in control of the executive branch of government, portends the worst for international human rights and for constitutional rights.

 

The government has established a wide-ranging series of measures in its efforts to eradicate terrorism. Below, I examine more closely some of the key measures and analyse their implications.

I. The President’s Military Order

Military Commissions

On 13 November 2001, President George W. Bush signed a military order establishing military commissions or tribunals to try suspected terrorists.⁵ Under this order, non-citizens who are accused of aiding international terrorism can be tried before one of these commissions at the discretion of the president. These commissions are not courts-martial, which provide many more protections for the accused. The divergence from constitutional protections allowed by this executive order is breathtaking. Ashcroft has explicitly stated that terrorists do not deserve constitutional protections. (By “terrorists”, Ashcroft means accused or suspected individuals, not those proved to have committed terrorist acts.) Accordingly, what have been set up are essentially “courts” of conviction and not of justice.

 

Under the provisions of the military order establishing these commissions, the secretary of defence will appoint the judges, most likely military officers, who will decide both questions of law and fact. Unlike federal judges, who are appointed for life, these officers will have little independence and every reason to decide in favour of the prosecution. Normal rules of evidence, which provide some assurance of reliability, will not apply. Hearsay and even evidence obtained by torture will apparently be admissible. (This is particularly frightening in light of the intimations from US officials that torture of suspects may be an option.)⁶

 

Unanimity among the judges is not required, even to impose the death penalty. Suspects do not have free choice of attorneys. The only appeal against a conviction will be to the president or the secretary of defence. Incredibly, the entire process, including execution, can be carried out in secret and the trials can be held anywhere the secretary of defence decides. (A trial might occur on an aircraft carrier, for example, with no press allowed, and the body of the executed disposed of at sea.)

 

Although military tribunals were used during and immediately after the Second World War, their use since that time does not comply with important international treaties. The International Covenant on Civil and Political Rights as well as the American Declaration of the Rights and Duties of Man require that persons be tried before courts previously established in accordance with pre-existing laws. Clearly, the tribunals are not such courts. In addition, the Third Geneva Convention of 1949 requires that prisoners of war (POWs) be tried under the same procedures under which US soldiers would be tried for similar crimes. US soldiers are tried by courts-martial or civilian courts and not by military tribunal. This is probably one important reason why the United States is refusing to classify the Guantanamo detainees as POWs: if they were POWs, the government would not be free to use tribunals.

 

Surprisingly, a number of prestigious law professors have accepted and even argued in favour of these tribunals, saying that secrecy is necessary for security.⁷ The primary argument is that it might be necessary to disclose classified information in order to obtain convictions. But in fact, there are established procedures for safely handling classified information in federal courts, as demonstrated in the trial of those convicted in the 1993 bombing of the World Trade Center. The 1993 trials also showed that trials of suspected terrorists do not require special military tribunals, but can safely be held in federal courts. These new tribunals represent such a departure from fair and impartial courts that there was a broad outcry against their use both in the United States and Europe. Even conservative columnists such as William Safire were highly critical. This outcry was probably a factor in the government’s decision to have the so-called twentieth hijacker, Zacarias Moussaoui, tried in a regular federal court in the United States.

 

The administration has offered to address some of these criticisms when regulations are written. Still, as currently conceived the military commissions will see the president select the defendants, the secretary of defence appoint the judges, the death penalty remain a sentencing option and genuine appeals ruled out. Trials before military commissions will not be trusted in either the Muslim world or in Europe, where previous terrorism trials have not required the total suspension of the most basic principles of justice. The military commissions will be viewed for what they are: “kangaroo courts”. It would be much better to demonstrate to the world that the guilty have been apprehended and fairly convicted in front of impartial and regularly constituted courts. An even better solution would be for the United States to go to the United Nations and have that body establish a special court for the trials, staffed by judges from the United States, Muslim countries and other countries with civil law systems.

Indefinite Detention—the Guantanamo Prisoners

In addition to authorising military tribunals, the same military order of 13 November requires the secretary of defence to detain anyone whom the president has reason to believe is an international terrorist, a member of al-Qaeda or someone who harboured such persons. There is no requirement that a detained individual ever be brought to trial. Detention without any charges and without any court review can last an entire lifetime. Subsequent to the issuance of the military order, US and Northern Alliance forces in Afghanistan captured thousands of prisoners. On or about 11 January 2002, the US military began transporting prisoners captured in Afghanistan to Camp X-Ray at the US naval station in Guantanamo Bay, Cuba. As of mid-February, US authorities were detaining 254 male prisoners representing twenty-five nationalities at the Guantanamo compound, and the number was expected to grow. It is these prisoners who may be indefinitely detained or tried by military tribunals to face the death penalty.⁸

 

There have been allegations of ill treatment of some prisoners in transit and at Guantanamo, including reports that they were shackled, hooded and sedated during the twenty-five-hour flight from Afghanistan, that their beards and heads were forcibly shaved, and that upon arrival at Guantanamo they were housed in small cells that failed to protect them against the elements.⁹ While such treatment is never acceptable, more serious is the fact that these prisoners exist in a legal limbo, their identities secret and the charges against them unknown.

 

It is the official position of the US government that none of these detainees are POWs. Instead, officials have repeatedly described the prisoners as “unlawful combatants”. This determination was made without the convening of a competent tribunal as required by Article 5 of the Third Geneva Convention, which mandates such a tribunal “should any doubt arise” as to a combatant’s status. In its most recent statement on the status of those detained at Guantanamo, the US government announced that although it would apply the Geneva Conventions to those prisoners it decided were from the Taliban, it would not extend them to prisoners it believed were members of al-Qaeda.¹⁰ However, in no case were any of the detained to be considered POWs. The United States has repeatedly refused the pleas of the international community to treat all the detainees under the procedures established by the Geneva Conventions.¹¹

 

The United States’ treatment of the Guantanamo detainees violates virtually every human rights norm relating to preventive detention. The United States has denied the detainees access to counsel, consular representatives and family members; has failed to notify them of the charges they are facing; has refused to allow for judicial review of the detentions; and has expressed its intent to hold the detainees indefinitely.¹²

II. Homeland Security

On 20 September 2001, President Bush announced the creation of the Homeland Security Office, charged with gathering intelligence, co-ordinating anti-terrorism efforts and taking precautions to prevent, and respond to, terrorism. It is not yet known how this office will function, but it will most likely try to centralise the powers of existing US intelligence and law enforcement bodies (a difficult, if not impossible, job) and co-ordinate the work of some forty bickering agencies.

 

Those concerned by its establishment are worried that the Office of Homeland Security will become a super spy agency and that, as its very name implies, it will encourage the military to play a hitherto unprecedented role in domestic law enforcement. The recent appointment of a general to be in charge of “defence of the homeland”, and the proposed repeal of a federal statute that prohibits the military from playing a domestic law enforcement role, are clear signals of what can be expected in the future.

III. FBI Arrests and Investigations

Arrests of Non-Citizens

The FBI has always done more than chase criminals. Like the CIA, it has long considered itself the protector of US ideology. Those who have opposed government policies—be they civil rights workers, anti–Vietnam War protestors, opponents of the covert Reagan-era wars, or cultural dissidents—have repeatedly been put under surveillance and had their legal activities disrupted by the FBI.

 

In the immediate aftermath of the 11 September attacks, Attorney-General Ashcroft focused FBI efforts on non-citizens, whether permanent residents, students, temporary workers or tourists. Normally, an alien can only be held for forty-eight hours prior to the filing of charges. Ashcroft’s new regulation allowed arrested aliens to be held without any charges for a “reasonable time”, presumably months or longer.

 

The FBI began massive detentions and investigations of individuals suspected of terrorist connections, almost all of them non-citizens of Middle Eastern descent; more than 1,300 were arrested. In some cases, people were arrested merely for being from a country such as Pakistan and for having expired student visas. Many were held for weeks and months without access to lawyers or knowledge of the charges against them. Many are still in detention. None, as yet, has been proven to have a connection with the 11 September attacks. Most remain in jail despite having been cleared.¹³

 

Stories of the mistreatment of such detainees are not uncommon. Apparently, some of those arrested are not willing to talk to the FBI, although they have been offered shorter jail sentences, jobs, money and new identities. Astonishingly, the FBI and the Department of Justice are discussing methods to force them to talk, which include “using drugs or pressure tactics such as those employed by … Israeli interrogators”.¹⁴ The accurate term to describe these tactics is torture.

 

There is resistance to the proposed use of extreme interrogation measures even from law enforcement officials. One former FBI chief of counter-terrorism told an interviewer: “Torture goes against every grain in my body. Chances are you are going to get the wrong person and risk damage or killing them.”¹⁵ As torture is illegal in the United States and under international law, US officials risk lawsuits by using such practices. For this reason, they have suggested having another country do their dirty work: they want to extradite the suspects to allied countries where security services regularly threaten family members and/or use torture. It would be difficult to imagine a more ominous signal of the repressive period we are facing.

Investigations of Middle Eastern Men

In late November 2001, Attorney-General Ashcroft announced that the FBI or other law enforcement personnel would interview more than five thousand men, mostly from the Middle East, who were in the United States on temporary visas. None of these men was suspected of any crime. The interviews were supposedly voluntary. A number of civil liberties organisations and Muslim and Arab-American groups objected that the investigations amounted to racial profiling and that interviews of immigrants who might be subject to deportation could hardly be called voluntary. Some law enforcement officials, including a former head of the FBI, objected as well, saying that such questioning would harm the relationship of police departments with minority communities, that the practice was illegal under some state laws and that it was a clumsy and ineffective way to go about an investigation. A few local police departments refused to co-operate.

 

Although Ashcroft claimed the questioning of the Middle Easterners was harmless, the proposed questions themselves made this assertion doubtful. The initial questions concerned the non-citizen’s status; if there was even the hint of a technical immigration violation, the person could well find himself in jail and deported. Information was requested regarding all of the friends and family of the questioned person; in other words, the FBI wanted complete address books. Once the FBI had such information, it would open files and investigations on each of those named, even though no one was suspected of a crime.

 

Other questions concerned whether the person interviewed had any sympathy with any of the causes supposedly espoused by the 11 September attackers. Media reports in the United States and elsewhere have suggested that the attackers were acting in the name of Palestinian rights. Whether or not this is the case, many Arab-Americans are sympathetic with the plight of the Palestinians and would be put in a bind by FBI questioning on this topic. If the person questioned admitted to such sympathy he would immediately become a potential suspect; if he was sympathetic, but denied it, he would be lying to the FBI, which is a federal crime.

 

The FBI was also instructed to make informants of the persons it questioned, and to have them continue to report on and monitor the people they are in contact with. Oliver “Buck” Revel, a former FBI assistant executive director, has criticised this practice as “not effective” and as “really gut[ting] the values of our society, which you cannot allow the terrorists to do”.¹⁶

 

The FBI is also currently investigating political dissident organisations it claims are linked to terrorism—among them pacifist bodies such as the US chapter of Women in Black, which holds peaceful vigils to protest against violence in Israel and the Palestinian territories. The FBI has threatened to force members of Women in Black either to talk about their group or go to jail. As one of the group’s members said, “If the FBI cannot or will not distinguish between groups who collude in hatred and terrorism, and peace activists who struggle in the full light of day against all forms of terrorism, we are in serious trouble.”¹⁷

 

Unfortunately, the FBI does not make that distinction. We are facing not only the round-up of thousands on flimsy suspicions, but also an all-out investigation of dissent in the United States.

Renewed FBI Spying on Religious and Political Groups

Attorney-General Ashcroft is considering a plan that would authorise the FBI to spy upon and disrupt political groups.¹⁸ This spying and disruption would take place even without evidence that a group was involved in anything illegal. A person or group could become a target solely for expressing views different from those of the government or for supporting, for example, Palestinian rights. Ashcroft would authorise such measures by lifting FBI guidelines that were put into place in the 1970s following the exposure of abuses by the agency, which included spying upon Dr Martin Luther King and efforts to disrupt his activities. That earlier spying and disruption occurred under a programme called Cointelpro, which stands for “Counterintelligence Programme”. It was a programme to “misdirect, discredit, disrupt and otherwise neutralize” specific individuals and groups. Probably the most notorious goal of Cointelpro was prevention of the rise of what the FBI called a “Black Messiah”. At one point, the FBI tried to induce Dr King to commit suicide by threatening to expose his extramarital affairs to his wife. It is not known whether this proposed new version of Cointelpro has been adopted.

IV. Ending Attorney–Client Privilege

At the heart of the effective assistance of counsel is the right of a criminal defendant to a lawyer with whom he or she can communicate candidly and freely without fear that the government is overhearing confidential communications. This right is fundamental to the adversary system of justice in the United States. When the government overhears such conversations, a defendant’s right to a defence is compromised. Now, with the stroke of a pen, Ashcroft has eliminated the attorney–client privilege. Privileged communications will be wiretapped when Ashcroft thinks there is “reasonable suspicion to believe” that a detainee “may use communications with attorneys or their agents to further facilitate an act or acts of violence or terrorism”.¹⁹ Ashcroft says that approximately one hundred such suspects and their attorneys may be subject to the order. He claims the legal authority to tap attorney–client communications without court order—in other words, without the approval and finding by a neutral magistrate that such communications are facilitating criminal conduct. This is utter lawlessness by our country’s top law enforcement officer and is flatly unconstitutional.

V. The Patriot Act

On 26 October 2001, Congress passed and President Bush signed sweeping new anti-terrorism legislation, the USA Patriot Act (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”), aimed at both aliens and citizens. The legislation met more opposition than one might expect in these difficult times. A “National Coalition to Protect Political Freedom” of over 120 groups ranging from the right to the left opposed the worst aspects of the proposed new law. The coalition succeeded in securing minor modifications to the act, but the most troubling provisions remain, and are described below.

“Rights” of Aliens

Prior to the Patriot Act, anti-terrorism laws passed in the wake of the 1995 bombing of the federal building in Oklahoma had already given the government wide powers to arrest, detain and deport aliens on the basis of secret evidence—evidence that neither the alien nor his attorney could view or refute.²⁰ The new legislation makes it even worse for aliens. First, the law would permit “mandatory detention” of aliens certified by the attorney-general as “suspected terrorists”. These could include aliens involved in barroom brawls or those who have provided only humanitarian assistance to organisations disapproved of by the United States. Once certified in this way, an alien could be imprisoned indefinitely with no real opportunity for court challenge. Until now, such “preventive detention” was believed to be flatly unconstitutional.

 

Secondly, current law permits deportation of aliens who support terrorist activity; the proposed law would make aliens deportable for almost any association with a “terrorist organisation”. Although this change may seem to have a certain surface plausibility, it represents a dangerous erosion of the constitutionally protected rights of association. “Terrorist organisation” is a broad and open-ended term that could, depending on the political climate or the inclinations of the attorney-general, include liberation groups such as the Irish Republican Army and the African National Congress, or non-governmental organisations that have ever engaged in any violent activity, such as Greenpeace. An alien who gives only medical or humanitarian aid to similar groups, or simply supports their political message in a material way, could also be jailed indefinitely.

More Powers to the FBI and CIA

A key element in the USA Patriot Act is the wide expansion of wiretapping. In the United States, wiretapping is permitted, but generally only when there is probable cause to believe that a crime has been committed, and a judge has signed a special order specifying limited time periods, the numbers of the telephones tapped and the type of conversations that can be overheard.

 

In 1978, an exception was made to these strict requirements under the Foreign Intelligence Surveillance Act, permitting wiretapping to gather intelligence information about foreign governments and foreign terrorist organisations. A secret court, the Foreign Intelligence Surveillance Court, was established that could approve such wiretaps without requiring the government to show evidence of criminal conduct. This allowed the constitutional protections necessary when investigating crimes to be bypassed.

 

The secret court has been little more than a rubber stamp for wiretapping requests by the spy agencies. It has authorised over thirteen thousand wiretaps in its twenty-two-year existence (about a thousand of them last year), and has apparently never denied a request for a wiretap. Under the new law, the same secret court will have the power to authorise wiretaps and secret searches of homes in criminal cases—not just to gather foreign intelligence. The FBI will be able to wiretap individuals or organisations without meeting the stringent conditions of the US Constitution, which requires a court order based upon probable cause that a person is planning or has committed a crime. The new law will authorise the secret court to permit roving wiretaps of any phones, computers or cell phones that might possibly be used by a suspect. Widespread reading of e-mail will be allowed, even before the recipient opens it. Thousands of conversations will be listened to or read that have nothing to do with any suspect or any crime.

 

The new legislation is filled with many other expansions of investigative and prosecutorial power, including wider use of undercover agents to infiltrate organisations, longer jail sentences, lifetime supervision for some who have served their sentences, more crimes that draw the death penalty and longer statutes of limitations for prosecuting crimes. Another provision of the new bill makes it a crime for a person to fail to notify the FBI if he or she has “reasonable grounds to believe” that someone is about to commit a terrorist offence. The language of this provision is so vague that anyone, however innocent, with any connection to anyone even suspected of being a terrorist can be prosecuted.

The New Crime of Domestic Terrorism

The USA Patriot Act creates a number of new crimes. One of the most threatening to dissent and to those who oppose government policies is the crime of “domestic terrorism”. This is loosely defined as acts that are dangerous to human life, violate criminal law and “appear to be intended” to “intimidate or coerce a civilian population” or “influence the policy of a government by intimidation or coercion”. Under this definition, a protest demonstration that blocked a street and prevented an ambulance from getting by could be deemed domestic terrorism. Likewise, the demonstrations in Seattle against the World Trade Organisation in 1999 could fit the definition.

 

This was an unnecessary addition to the criminal code: there are already plenty of laws making such civil disobedience criminal without labelling protest as terrorism and imposing severe prison sentences.

 

Overall, the severe curtailment of legal rights, the disregard of established law and the new repressive legislation represent one of the most sweeping assaults on liberties in the last fifty years. It is unlikely to make us more secure; it is certain to make us less free. Governments commonly reach for draconian law enforcement solutions in times of war or national crisis. This has happened often in the United States and elsewhere. We should learn from historical example. Times of hysteria, of war and of instability are not the times to rush to enact new laws that curtail our freedoms and grant more authority to the government and its intelligence and law enforcement agencies.

 

The US government has conceptualised the war against terrorism as a permanent war, a war without boundaries. Terrorism is frightening to all of us, but it is equally chilling to think that in the name of anti-terrorism our government is willing to suspend constitutional freedoms permanently.

 

Endnotes

1. Neil A. Lewis, “Ashcroft Defends Antiterror Plan; Says Criticism May Aid US Foes”, New York Times, 7 December 2001, sec. A, p. 1.

 

2. Editorial, “Say What You Will”, Oregonian, 2 October 2001, sec. B, p. 10.

 

3. Tim Weiner, “Look Who’s Listening: The C.I.A. Widens Its Domestic Reach”, New York Times, 20 January 2002, sec. 4, p. 1.

 

4. American-Arab Anti-Discrimination Committee, action alert, “Protest Ashcroft’s Anti-Islamic Statements”, 11 February 2002.

 

5. “Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism”, White House press release, 13 November 2024 [www.whitehouse.gov/news/releases/2001/11/20011113-27.html].

 

6. Walter Pincus, “Silence of 4 Terror Probe Suspects Poses Dilemma”, Washington Post, 21 October 2001, sec. A, p. 6.

 

7. See, for example, remarks by Yale professor, Ruth Wedgewood [www.justicetalking.org/shows/show195.asp].

 

8. Richard Sisk, “Airport Gun Battle Firefight Erupts as Prisoners Are Flown to Cuba”, New York Daily News, 11 January 2002, p. 27.

 

9. See, for example, “AI Calls on the USA to End Legal Limbo of Guantanamo Prisoners”, Amnesty International public statement, 15 January 2025 [web.amnesty.org/ai.nsf/Index/AMR510092002].

 

10. “Status of Detainees at Guantanamo”, White House press release, 7 February 2025 [www.whitehouse.gov/news/releases/2002/02/20020207-13.html].

 

11. On 8 February 2002, the day after the announcement of the US position, Darcy Christen, a spokesperson for the International Committee of the Red Cross (ICRC), said of the detainees: “They were captured in combat [and] we consider them prisoners of war.” See Richard Waddington, “Guantanamo Inmates Are POWs Despite Bush View—ICRC”, Reuters, 9 February 2002.

 

12. These detentions are currently under challenge in US courts and the author of this article is one of the attorneys in those cases. The court papers can be accessed at [www.campxray.net].

 

13. Homeland Security Director Tom Ridge said there was no evidence yet that any of the more than one thousand people detained was a terrorist. “US Draws Up List of over 5,000 Men It Wants Interviewed in Terrorism Probe”, Wall Street Journal, 14 November 2001, sec. A, p. 6.

 

14. Pincus, “Silence of 4 Terror Probe Suspects Poses Dilemma”.

 

15. Ibid.

 

16. Jim McGee, “Ex-FBI Officials Criticize Tactics on Terrorism”, Washington Post, 28 November 2001, sec. A, p. 1.

 

17. Report by Ronnie Gilbert, “FBI Investigation of Women in Black”, 4 October 2024 [www.labournet.net/world/0110/wmnblk1.html].

 

18. David Johnston and Don Van Natta Jr., “Ashcroft Seeking to Free FBI to Spy on Groups”, New York Times, 1 December 2001, sec. A, p. 1.

 

19. National Security; Prevention of Terrorist Acts of Violence, Code of Federal Regulations, vol. 28, secs. 500–1 (2001).

 

20. This 1996 legislation was aimed at aliens, even though the bombing of the federal building was carried out by US citizens living in the United States.