Watchdogs in the War on Terror – Globe and Mail – by Shawn McCarthy – PDF

2003 Watchdogs in the War on Terror

The hateful e-mail messages are a dime a dozen. It’s the threatening phone calls that unnerve human-rights lawyer Barbara Olshansky. In one case, a man who sounds slightly unhinged says in a deep voice that he not only knows where her office is located, he know which window is hers.

Ms. Olshansky and her colleagues at the non-profit Center for Constitutional Rights are in open conflict with U.S. President George W. Bush’s undeclared war on terrorism and the two-year-old Patriot Act, which granted sweeping powers to federal agencies.

The liberal lawyers, whose organization is rooted in the 1960s civil-rights movements, argue passionately that Mr. Bush’s aggressive international tactics and the suppression of rights at home do more harm to U.S. society than al-Qaeda’s attack that killed more than 3,000 Americans on Sept. 11, 2001.

And, from their cramped offices on lower Broadway just blocks from ground zero, they are fighting back in that uniquely American way — through the courts.

Over the years, the Center for Constitutional Rights has won some groundbreaking decisions on civil rights. But this time, concedes its president, Michael Ratner, the agency faces a judiciary highly sympathetic to the administration’s invocation of national security to justify suspending civil liberties.

And the center is operating in a political climate in which a broad swath of mainstream America judges its actions as unpatriotic, if not tantamount to treason.

In its highest profile case, the center has persuaded the U.S. Supreme Court to determine whether federal courts should exercise judicial oversight for the detention of suspected al-Qaeda detainees being held by the U.S. military at Guantanamo Bay, Cuba.

In a series of suits, it also has challenged the government’s secret process for detaining, interrogating and in some cases deporting immigrants, usually Muslim men, without a fair hearing.

And it is representing Maher Arar, the Syrian-born Canadian now at the center of a great controversy. Mr. Arar only recently returned to his Ottawa home after being detained at New York’s JFK Airport on Sept. 26, 2002. En route to Montreal from Tunisia, he was accused of being an al-Qaeda operative, held for questioning for several days, and then, instead of being sent to Canada, deported to Syria, where he says he was tortured.

While U.S. Attorney-General John Ashcroft defended his government’s treatment of Mr. Arar this week, Ms. Olshansky is promising to launch a lawsuit on the Canadian’s behalf. The suit, expected to be filed before the end of the year, will argue that U.S. government officials violated Mr. Arar’s rights and broke international and domestic laws by shipping him somewhere they had good reason to believe he would be harmed.

The defense of the unpopular causes makes the center’s lawyers targets of incredible vitriol, much as opponents of the Vietnam War were denounced as traitors and told to “love it or leave it.”

Ms. Olshansky has a stack of venomous e-mail messages. “You people make me sick,” spouts one correspondent. “You shouldn’t even be allowed to live in this country.” Rails another: “You should be hung from the highest tree. How can you defend the cause of the heartless destruction of our country?” Mr. Ratner laughs off the e-mail, but Ms. Olshansky is more apprehensive about the angry and threatening phone calls. “They scare me,” she confesses.

The center’s lawyers, several of them Jewish, are well aware of the deeply disturbing nature of their work. They are, after all, defending men accused of being part of a terrorist network, whose hateful brand of fanatical Islam has prompted them to target civilian Americans and Israelis as part of their desperate jihad.

And they are New Yorkers. Ms. Olshansky lost friends on 9/11 and hustled across the Brooklyn Bridge. Mr. Ratner was jogging near the World Trade Center and watched the airliners crash into the twin towers, then stood and watched in fearful awe as those totemic structures collapsed into a heap.

He acknowledges the fundamental difference between the current campaign and the legal backing of civil-rights activists, opponents of the Vietnam War, women’s-rights advocates and torture victims.

“There is actually a shift, a really important shift, that shows how terrible a shape the country is in,” Mr. Ratner explains. “When the center started out, we represented social movements and groups that were fighting for social change in what we considered a progressive direction…

“Now we’re representing people and organizations whom we don’t necessarily agree with.”

At stake, he says, are “the most basic rights of human beings.”

Whether captured during military conflict overseas or arrested in the United States, detainees should be given due process of the law, he says. And if they are guilty of a crime, or are prisoners of war, they should be treated accordingly. If not, they should be freed.

Defenders of the administration’s approach call the CCR’s advocates, and their growing army of liberal backers, hopelessly and dangerously naive. They insist that the United States is, in fact, at war with Islamic fundamentalists who target American civilians and other Westerners abroad, and would strike in the United States again if they could.

And they hold to the doctrine of preemption. They won’t wait for the enemy to strike, whether that means going into Iraq without international support or holding suspected conspirators even though the government cannot prove beyond a reasonable doubt that they have committed a crime.

Mr. Ratner and Ms. Olshansky respond that the U.S. government is losing the “hearts and minds” battle around the world, and is driving angry Muslims into the arms of al-Qaeda. And, ironically, given the Bush administration’s claim to be working in the cause of liberty, they say Mr. Ashcroft, the Attorney-General, is using the pretext of national security to increase surveillance and detention of political enemies of the Republican administration.

“We’re seeing a government that in many of our views is moving towards a police state, particularly in regards to non-citizens,” Mr. Ratner argues.

He and his colleagues acknowledge that there has always been tension between national security and civil liberties.

As far back as 1798, president John Adams passed the Alien and Sedition Act, which was used to target his political enemies. Abraham Lincoln suspended habeas corpus several times during the Civil War to intern suspected Southern collaborators.

More recently, Americans and immigrants from countries at war with the United States were interned during both world wars, while the civil rights of suspected Communists were routinely curbed during the “Red scares” of the 1920s and ’30s, and again during the ’50s and ’60s.

Those historical precedents and the open-ended nature of the war on terrorism should give Americans pause, Mr. Ratner insists.

Among the many friendly briefs filed in the center’s Supreme Court challenge was one from Fred Korematsu, a Japanese American who challenged his Second World War internment all the way to the Supreme Court, where he lost.

More than 40 years later, Mr. Korematsu received an official apology from Congress after the government acknowledged that its internment policy was not the “military necessity” the top court had found it to be at the time.

In his brief back then, Mr. Korematsu wrote: “This court should make clear that, even in wartime, the United States does not abandon fundamental liberties in the absence of convincing military necessity. Our failure to hold ourselves to this standard in the past has led to many of our most painful episodes as a nation. We should not make that mistake again.”

The CCR Docket

Dombroski v. Pfister (1965): Established the federal courts’ power to block prosecutions of civil-rights workers under state law, a key victory when many Southern states still used anti-sedition laws to harass the civil-rights movement.

The Chicago 8 (trial 1968, appeal 1972): After riots and police brutality marred the 1968 Democratic National Convention, eight leaders were charged with conspiracy to commit mayhem. CCR lawyers formed the core of the defense team and won acquittal of the conspiracy charges. The accused were convicted of contempt, but won on appeal.

Filarta v. Pena-Irala (1979): Established the right of foreign human-rights victims to obtain justice through U.S. courts. In 1979, CCR brought suit against Paraguayan police chief Americo Pena-Irala for the torture and murder of Joelito Filartiga. When the accused fled to the United States, the center used the Alien Tort Claims Act (ATCA), a little-known statute from 1789 that gives foreign nationals the right to sue for torts that violate international law.

NOW v. Terry (1988): With the National Organization of Women, the center secured state and federal injunctions, backed by substantial monetary penalties for violations, to ensure that women, medical staff and support personnel would be able to continue use of and work at abortion clinics.

Margaret Randall (1989): Overturned a decision by U.S. authorities to strip the American poet and activist of her citizenship after she took out Mexican citizenship, establishing that U.S. citizenship can only be given up voluntarily.

Wiwa v. Royal Dutch Shell: Currently seeking damages from the multinational oil giant for alleged complicity in the killing of Nigerian activist Ken Saro-Wiwa.

Doe v. Unocal: A suit filed in California, seeking damages from Unocal Corp. for its alleged complicity in the slavery, forced relocation and killing of citizens during the construction of a pipeline in Burma.