Michael Ratner is a human rights attorney with the Center for Constitutional
Rights in New York.
I live just a few blocks from the World Trade Center. In New York, we
mourning the loss of so many after the attacks on our city. We want to arrest and
punish the terrorists, eliminate the terrorist network and prevent future attacks.
But the government's declared war on terrorism, and some of the anti-terrorism
measures planned, include a curtailment of freedom and constitutional rights
that have many of us concerned.
The domestic consequences of the war on terrorism include massive
immigrants, the creation of a special new cabinet office of Homeland Security and
the passage of legislation granting intelligence and law enforcement agencies
much broader powers to intrude into the private lives of Americans. The war on
terrorism also means pervasive government and media censorship of information,
the silencing of dissent, and widespread ethnic and religious profiling of Muslims,
Arabs and Asian people.
The claimed necessity for this war at home is problematic. The
other governmental actions are premised on the belief that the intelligence
agencies failed to stop the September 11th attack because they lacked the spying
capability to find and arrest the conspirators. Yet neither the government nor the
agencies have demonstrated that this is the reason.
This war at home gives Americans a false sense of security, allowing
us to believe
that tighter borders, vastly empowered intelligence agencies, and increased
surveillance will stop terrorism. The United States is not yet a police state. But
even a police state could not stop terrorists intent on doing us harm. And the
fantasy of Fortress America keeps us from examining the root causes of
terrorism, and the consequences of decades of American foreign policy in the
Middle East, Afghanistan and elsewhere. Unless some of the grievances against
the United States are studied and addressed, terrorism will continue.
The New Legal Regime
The government has established a tripartite plan in its efforts to eradicate
terrorism in the United States. President Bush has created a new cabinet-level
Homeland Security Office; the Federal Bureau of Investigation is investigating
thousands of individuals and groups and making hundreds of arrests; and
Congress is enacting new laws that will grant the FBI and other intelligence
agencies vast new powers to wiretap and spy on people in the United States.
* The Office of Homeland Security
On September 20th President Bush announced the creation of the Homeland
Security Office, charged with gathering intelligence, coordinating 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 centralize the
powers of the intelligence and law enforcement agencies -- a difficult, if not
impossible, job -- among some 40 bickering agencies. Those concerned with its
establishment are worried that it will become a super spy agency and, as its very
name implies, that the military will play a role in domestic law enforcement.
* FBI Investigations and Arrests
The FBI has always done more than chase criminals; like the Central
Agency it has long considered itself the protector of U.S. ideology. Those who
opposed government policies -- whether civil rights workers, anti-Vietnam war
protestors, opponents of the covert Reagan-era wars or cultural dissidents -- have
repeatedly been surveyed and had their activities disrupted by the FBI.
In the immediate aftermath of the September 11 attack, Attorney General
Ashcroft focused on non-citizens, whether permanent residents, students,
temporary workers or tourists. Normally, an alien can only be held for 48 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
The FBI began massive detentions and investigations of individuals suspected
terrorist connections, almost all of them non-citizens of Middle Eastern descent;
over 1,100 have been arrested. Many were held for days without access to lawyers
or knowledge of the charges against them; many are still in detention.
Few, if any, have been proven to have a connection with the September
and remain in jail despite having been cleared. In some cases, people were
arrested merely for being from a country like Pakistan and having expired student
visas. Stories of mistreatment of such detainees are not uncommon.
Apparently, some of those arrested are not willing to talk to the FBI,
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 the Israeli interrogators." The accurate term to describe these tactics
Our government wants to torture people to make them talk. There is
this even from law enforcement officials. One former FBI Chief of Counter
Terrorism, said in an October New York Newsday article, "Torture goes against
every grain in my body. Chances are you are going to get the wrong person and
risk damage or killing them."
As torture is illegal in the United States and under international law,
officials risk lawsuits by 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 threaten family members and use torture.
It would be difficult to imagine a more ominous signal of the repressive period we
The FBI is also currently investigating groups it claims are linked
to terrorism --
among them pacifist groups such as the U.S. chapter of Women in Black, which
holds vigils to protest violence in Israel and the Palestinian Territories. The FBI
has threatened to force members of Women in Black to either 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."
Unfortunately, the FBI does not make that distinction. We are facing
not only the
roundup of thousands on flimsy suspicions, but also an all-out investigation of
dissent in the United States.
* The New Anti-Terrorist Legislation
At the time of this writing, the United States Congress has passed and
Bush will soon sign sweeping new anti-terrorist legislation aimed at both aliens
and citizens. The proposed 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. They succeeded in making minor modifications, but the most
troubling provisions remain, and are described below:
* Rights of Aliens
Prior to the legislation, anti-terrorist laws passed in the wake of
bombing of the federal building in Oklahoma had already given the government
wide powers to arrest, detain and deport aliens based upon secret evidence --
evidence that neither the alien nor his attorney could view or refute. The current
proposed legislation makes it even worse for aliens.
First, the law would permit "mandatory detention" of aliens certified
attorney general as "suspected terrorists." These could include aliens involved in
barroom brawls or those who have provided only humanitarian assistance to
organizations disfavored 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.
Second, current law permits deportation of aliens who support terrorist
the proposed law would make aliens deportable for almost any association with a
"terrorist organization." Although this change seems to have a certain surface
plausibility, it represents a dangerous erosion of Americans' constitutionally
protected rights of association. "Terrorist organization" is a broad and open-ended
term that could include liberation groups such as the Irish Republican Army, the
African National Congress, or civic groups 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 be jailed indefinitely.
* More Powers to the FBI and CIA
A key element in the new law is the wide expansion of wiretapping. In
States wiretapping is permitted, but generally only when there is probable cause
to believe a crime has been committed and a judge signs a special wiretapping
order that contains limited time periods, the numbers of the telephones
wiretapped and the type of conversations that can be overheard.
In 1978, an exception was made to these strict requirements, permitting
wiretapping to be carried out to gather intelligence information about foreign
governments and foreign terrorist organizations. A secret court was established
that could approve such wiretaps without requiring the government to show
evidence of criminal conduct. In doing so the constitutional protections necessary
when investigating crimes could be bypassed. Eventually, the secret court's
jurisdiction was expanded so that it could permit the FBI to secretly search
homes and offices as well as obtain bank records and the like. The secret court is
little more than a rubber stamp for wiretapping requests by the spy agencies. It
has authorized over 10,000 wiretaps in its 22-year existence, approximately a
thousand last year, and has apparently never denied a request.
Under the new law, the same secret court will have the power to authorize
wiretaps and secret searches of homes in criminal cases -- not just to gather
foreign intelligence. The FBI will be able to wiretap individuals and organizations
without meeting the stringent requirements of the Constitution. The law will
authorize 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 the suspect
or any crime.
The new legislation is filled with many other expansions of investigative
prosecutorial power, including wider use of undercover agents to infiltrate
organizations, longer jail sentences and lifetime supervision for some who have
served their sentences, more crimes that can receive 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
offense. The language of this provision is so vague that anyone, however
innocent, with any connection to anyone suspected of being a terrorist can be
Overall, the new legislation represents one of the most sweeping assaults
liberties in the last 50 years. It is unlikely to make us more secure; it is certain
to make us less free.
Censorship at Home: Unofficial and Official
Censorship in the United States during this war period is rampant. The
House press secretary, Ari Fleisher, warned that "people have to watch what they
say and what they do." A prevalent attitude is that you are either with us or
against us; questioning the practices and policies of the United States is
considered unpatriotic. Dissenters from the drumbeats of war or those who want
to examine underlying causes for the attack are given almost no voice; if they
dare to speak they are roundly castigated. The logic is that we do not criticize our
nation at war and that to examine causes is to excuse the terrorists.
This is what happened when Susan Sontag, the New York intellectual,
the assumption that the September 11 attack was an assault on "civilization" or
"liberty." Instead she wrote that it was an attack on "the world's self-proclaimed
superpower, undertaken as a consequence of specific American alliances and
actions." She was furiously attacked in the media as part of the "hate-America
crowd" and as "morally obtuse." Almost anyone who dares examine what might lie
behind the hatred felt by many in the Mideast toward America is attacked for
those views. The New York Daily News described those who sought to look at the
roots of the terror as "60's throwbacks, radical Muslims, far-far-left fringe and
just plain wackdoodles ... [that] the enemy might love."
We should learn from historical example: times of hysteria, of war,
instability are not the times to rush to enact new laws that curtail our freedoms
and grant more authority to the government.
Self-censorship by the media and even liberal organizations is also
Often this occurs by simply not airing alternative views -- one show actually
cutoff the microphone in mid -sentence of a guest arguing for a legal not a
military response. A radio station apparently fired a well-known journalist for
broadcasting an interview with the one member of Congress, Barbara Lee, who
voted against the war. A number of journalists have been fired for criticizing the
president. TV stations have rarely covered the protests against the war and the
views of those opposed to the war are demeaned. A New York Times headline
about a peace demonstration was titled "Protestors Urge Peace with Terrorists"
despite calls at the demonstration for bringing the terrorists to justice.
Almost no criticism of U.S. leaders is permitted -- even when unrelated
war. Two major environmental organizations, the Sierra Club and the Natural
Resources Defense Council, pulled ads criticizing Bush's environmental policies
and one even removed critical comments from its website. The long-running
website criticizing the policies of Mayor Giuliani of New York was taken down and
replaced with a message of support for him. A group of news organizations
including The New York Times decided not to publish the results of its recount of
the votes in the disputed presidential election in Florida; it was believed it would
undermine the legitimacy of the president.
Government censorship has become more and more overt. For a short while
President Bush said he was going to curtail military and intelligence briefings to
Congress. This would have cut the Congress out of the war making process and
left all decisions in the hands of the President -- an act both dangerous and
unconstitutional. Luckily, the president reversed himself within a few days, but
whether he is giving Congress a full report is unknown.
However, the press receives very little information; it receives briefings
general nature about military affairs, but reporters are not permitted to
accompany the troops onto the aircraft carriers or even into Oman, where Army
Rangers are based. Nor has there been full access to government officials; many
have refused to answer requests for interviews. These are the most severe
restrictions on the press probably in U.S. history, and certainly since before
World War II.
The most remarkable act of censorship was the government's request that
five major TV networks not fully air the prerecorded statements of Osama bin
Laden and his associates. The White House claimed it did not want bin Laden's
propaganda messages about killing Americans widely broadcast, and that the
statements might contain secret codes. Neither reason made much sense: bin
Laden's statements are already widely available around the world, and airing them
in the United States would more likely build support for the war among
Americans, not undermine it. As for secret messages, the government admits that
none have been found. Nonetheless, the TV networks agreed not to run the
tapes, and the government has extended its request to print media.
The United States has always prided itself on its constitutional protection
speech and a free press, a freedom considered especially important at times of
war when vigorous public debate is essential to a democracy.
It is not uncommon for governments to reach for draconian law enforcement
solutions in times of war or national crisis. It 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 U.S government has conceptualized the war against terrorism as a
war, a war without boundaries. Terrorism is frightening to all of us, but it's
equally chilling to think that in the name of antiterrorism our government is
willing to suspend constitutional freedoms permanently as well.