Foreword to Equal Justice in the Balance – PDF

2003 EJB Foreword

Equal Justice in the Balance paints a gloomy picture of the various methods the Executive, Congress and the Judiciary have employed to limit fundamental constitutional rights post 9/11. The authors stress the importance of not giving up these fundamental rights in the name of security. They conclude with a message of optimism noting the increasing backlash to some of the draconian measures engendered by the attacks of 9/11. They are right to end on this optimistic note. Although the landscape is still quite bleak, change is in the air.

Most importantly, there is a tremendous amount of grass roots organizing and a growing opposition to the wholesale violations of constitutional rights. The demonstrations against the Iraq war were some of the biggest this country and the world have seen. There are now over 200 city and three state resolutions against the Patriot Act. Some of these resolutions actually direct city and state employees not to cooperate with the FBI. Libraries all over the country are fighting against the provisions of the Patriot Act that permit the FBI to obtain lists of books checked out by library users and some librarians are purging those lists daily. A “Freedom To Read Act” has been introduced in the Senate that would prohibit such snooping and a Republican Senator introduced it. As the book notes, Ashcroft has been forced to go on an 18-city road show to defend his policies in what one newspaper described as “an act of desperation.” The Democratic candidates for President are getting into the act and some are criticizing passage of the Patriot Act; former Vice-President Gore has make a major speech asking for its repeal. It is widely understood among many in the United States that Ashcroft is overreaching.

This is not to say that this struggle to regain lost liberty will be easy to win; but it is to say that people are on the move.

Although there is movement, there is still a willingness of people to have their rights limited in the belief that by doing so they will be more secure. People are frightened and believe that stronger government measures will make them safer. They are ready to give up freedom for security. This is not the place to argue the efficacy of most of the 9/11 measures. However, it should be noted that the 350 plus page Patriot Act and numerous executive orders were imposed without any serious study or investigation of what went wrong on 9/11. Why did our intelligence services fail us? Why did they fail to share information? Why did they fail to arrest two of the hijackers who they knew were linked with al Qaeda? What is remarkable is that the Bush administration resisted any serious investigation until the families of the victims, in tears, make their disaffection public and appealed directly to the White House. Even now that the investigation has begun, the Bush administration and its agencies are resisting turning over documents to the investigative commission. It is important to ask how the government knows what to fix, what new powers, if any, are necessary, without determining what went wrong. Many of the new laws and powers given to the Bush administration government may be utterly unnecessary to make us safer, but they will certainly make us less free.

Another reason many people appear willing to give up their constitutional rights is that, in fact, they are not giving up their rights. Most of the new laws and abuses that are occurring are aimed at and effecting non-citizens. The 660 persons imprisoned at Guantanamo are non-citizens; the 1000 to 5000 people detained after 9/11 are non­-citizens; the tens of thousands requiring special registration are non-citizens; the thousands questioned by the FBI are non-citizens; the military tribunals only apple to non-citizens and the refusal of court to review detentions are limited to non-citizens. In fact, citizens at least initially have not been asked to give up many rights. The equation for them is easy; someone else’s rights are denied in the name of supposedly making us more secure. Of course, as history teaches us, what is applied to non-citizens will be applied to citizens and already has in the enemy combatant designation of Padilla and Hamdi who are imprisoned in a military bring in North Carolina.

Despite people’s fears and an administration that argues it is fighting a permanent “war on terrorism” there have been some recent legal developments that are an additional reason for hopefulness. In what many believe was a major blow to the Bush administration, the Supreme Court said it would review the incommunicado and indefinite detentions of 660 detainees at Guantanamo Bay, Cuba. Apparently, the ruling shocked the administration; in its arrogance it truly believed that no court would consider its actions. The lower courts had refused to even look at the legality of those detentions stating that they had no jurisdiction to do so. The administration claimed plenary power to do as it wished with the detainees and asserted that no court could even hear a case on behalf of the detainees. This claim of absolute power, a power unrestrained by any court review, seems to have been too much for the court. Now, the administration is scrambling to prevent a ruling against it by the court. A few days after the court granted review, the administration said it would release 140 detainees, presumably hoping to demonstrate that it could be trusted to give some kind of process to the prisoners and that a ruling against it was not necessary. It also said that counsel could visit David Hicks, one of the Guantanamo detainees who may be designated for trial before a military commission.

The Supreme Court is also likely to grant review in the case of Yaser Hamdi, the U.S. citizen, allegedly picked up in Afghanistan, labeled and enemy combatant and held incommunicado in a military bring in South Carolina. For almost two years Hamdi had been denied access to a lawyer. On the day prior to filing its opposition to Supreme Court review of his detention, the administration stated he could see his lawyer, again presumably to send the message to the court that it could be trusted to do the right thing. The administration may have also been reacting to the Padilla argument in the Second Circuit Court of Appeals. Padilla is a U.S. citizen, and like Hamdi has been labeled an enemy combatant and confined to a brig in South Carolina. He is being held incommunicado without access to a lawyer. Two of the three judges on the appeals court expressed skepticism as to whether this was legal, one even implying that the administration was repealing the constitution.

These developments demonstrate that this administration, and any government for that matter, cannot be trusted to act within the bounds of law, without judicial review of their actions. Only once the Supreme Court said it would review the Guantanamo cases, did the administration act. It is a concrete example of the importance of such review and a reaffirmation of the system of checks and balances embodied in the United States Constitution. The support for review of the Guantanamo cases and those of domestic Hamdi and Padilla illustrates another point-favoring civil liberties and fundamental freedoms is not a left or right issue; it not a liberal or conservative issue. It is a human rights issue that crosses the political spectrum. Many people understand that our fundamental freedoms are jeopardized by the administration’s actions in these cases. That is why people like William Safire, the conservative columnist initially came out against military tribunals. That is why the Cato Institute, a libertarian think tank, supported the rights of U.S. citizens to have judicial review of their designations “enemy combatants.” and that is why former generals and POWS supported hearings for those detained at Guantanamo.

On other fronts the picture is not as bright. It appears that military tribunals for trials of those at Guantanamo will begin in early in 2004. It has taken a while. The President issued the military order setting up the tribunals on November 13, 2001. It was widely criticized, modified and appears to be undergoing additional changes. In the summer of 2003 the President designated six Guantanamo detainees as potential defendants in the tribunals. A courthouse has been built in Guantanamo and a prosecution and military defense team assembled. In December 2002 the Pentagon informed military defense counsel that David Hicks might be the first brought before a tribunal. This damaged hopes that these tribunals would never be employed. They are not regularly constituted courts as required by law, but ad hoc and set up to convict. In addition, it likely that many of those brought before such tribunals will plead guilty. They have been in custody for almost two years without counsel or contact with family. Presumably the detainees have been told that unless they plead guilty, they will be jailed in Guantanamo indefinitely.

An important issue that has not received the attention it deserves is the Bush administration’s alleged use of torture and its sending of detainees to other countries where torture is employed-a process called “rendering.” Reports that the U.S. was employing torture at it base in Bagram, Afghanistan surfaced in 2002. Detainees were reportedly forced to stand or hung by their arms from the ceiling for 18 or more hours a day, deprived of food, subjected to hot and cold temperatures and beaten. Two of those receiving such treatment apparently died, as one of the army doctors noted, from blunt force to the body. In other words, it appears they were beaten to death. Remarkably, this use of torture appears to be accepted by many. To date there has been no congressional investigation of these charges.

A related phenomenon is the process of rendering. In a situation where the United States does not want to engage directly in torture it sends the detainee to a country where the Security Services will do it for the United States. The U.S. works closely with those countries, which include Morocco, Jordan and Egypt, so as to obtain the desired information. There are no figures on the number of detainees rendered but it is certainly scores if not many, many more. The case of Maher Arar, a Canadian citizen born in Syria, has put a public face on rendering and become a cause celebre in Canada. Arar, of Syrian descent, was returning to Canada from visiting his wife’s family in Tunisia and had to change planes at JFK airport in New York. In order to do so he had to clear immigration. At that point he was detained, interrogated, shackled, jailed and eventually rendered to Syria. In Syria he was imprisoned for 10 months and 10 days and repeatedly tortured. He was questioned continually and the questions were similar to those the FBI and others asked him in the United States. The Canadian government issued a travel advisory (subsequently withdrawn) warning Canadian citizens not born in Canada to avoid travel to the United States. His rendering caused a large public outcry, particularly in Canada, and Arar was finally released in November of 2002. He is pursuing various legal actions and, hopefully, Canada will begin a public inquiry. But nothing is known of the unknown others: rendered, tortured and disappeared.

Domestic detentions of non-citizens based on pre-textual immigration violations are continuing. Despite the Justice Department Inspector General’s critical report of the post 9/11 roundups of Muslim and Arabic non-citizens, little appears to have changed. This is despite the fact that few, if any, of the thousands of those arrested, have any relationship to terrorism. The names of those arrested as well as the number are still secret. The Freedom of Information Act case seeking those names and numbers was lost in the federal appeals court. The Supreme Court will be asked to review that case. A class action lawsuit filed against the detentions and their treatment is has been pending in the lower court with no decision.

The area of dissent and free speech continues to suffer. Equal Justice describes the unleashing of the FBI to spy on political and religious groups, to obtain record of reading habits from libraries and the increased use of wiretaps and searches under looser standards.. The FBI is widely involved in investigating and keeping files on people because for their thoughts, particularly when those thoughts are critical of the Bush administration and held by Muslims or those of Arabic ethnicity. One area of dissent that has seen increasing pressure are limitations placed on demonstrations and hostility to people organizing protests. An early instance was the refusal of the New York City to permit a march protesting the war in Iraq, a refusal upheld by the federal appeals court on the grounds of national security. New York was the only city in the world not permitted a march on February 15, 2002. Wooden bullets were used to stop protests in Oakland and hundreds of protestors were arrested on trumped up charge.

Sadly, that hostility to street protest has continued. At the protests against the FTAA (Free Trade Area of the Americas) it was basically martial law. Police from 40 police departments across Florida were called in and the intention was clearly not to allow an even a peaceful protest. Peaceful protestors were beaten, tear-gassed and arrested. This included members of organized labor. The Steelworkers have called for a congressional investigation labeling what occurred in Miami as homeland repression in the name of homeland security. Interestingly, the Iraq funding legislation included 8.5 million dollars to pay for law enforcement in Miami. Many people believe that Miami was the testing grounds for law enforcement techniques that will be employed at the August Republican convention in New York where massive protests are expected.

All this is to say that we are in difficult times regarding the protection of our liberties. The 9/ 11 attacks are now used as a pretext for diminishing many of our rights and increasing executive power while making us no safer. Yet, there seems to be tremendous resilience and fight back within in the United States. It would be Pollyannaish to say that we will surely prevail in the struggle to regain our lost freedoms. Yet, it would be defeatist to simply walk away from the fight. Recent gains against the Bush administration are only the beginning of rescuing our democracy.