Flipping Off Bush on Civil Liberties

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http://www.alternet.org/rights/20300/

 

Flipping Off Bush on Civil Liberties

 

By Noah Leavitt, AlterNet. Posted October 27, 2004.

 

Almost every major sector of U.S. judicial, political, and civil

society has rejected President Bush's laws and practices that touch on

civil liberties protection

 

As the election draws near, discussions of civil liberties have all

but disappeared from the public discourse. Earlier questions about

balancing civil liberties and national security seem to have been

replaced by both candidates' need to prove that they are the toughest

candidate possible, regardless of the consequences for Americans'

precious civil liberties. But there are still important differences

between the two men.

 

Bush and Cheney tell us that Kerry voted for the USA PATRIOT Act but

now criticizes it. Kerry's defense has been that as he has acquired

more information about the law, he has rethought his understanding,

which may cause him to appear as if he is changing his position. That

answer may be accurate, but it does not get at the heart of the

problems with the administration's approach to civil liberties. If

Kerry had wanted to be on the offense, rather than the defensive, he

could have noted that almost every major sector of U.S. judicial,

political, and civil society has flipped President Bush's laws and

practices that touch on civil liberties protection.

 

Really, President Bush's entire record on civil liberties is a flop.

 

Flipping Bush in the Courts

 

Federal courts have taken the lead in flipping Bush's civil liberties

agenda. Take, for example, Mr.Yaser Hamdi.

 

Hamdi was the subject of an important U.S. Supreme Court decision this

past summer. There, the majority of the Justices found that the Bush

administration had been unconstitutionally holding Hamdi as an `enemy

combatant' without charging him with any crimes, and without giving

him access to his court-appointed lawyer or to the U.S. judicial

system to review his complaints.

 

The Supreme Court ruled 8-1 against the administration's arguments,

completely flipping the White House's claims that it could treat

American citizens without regard to the Constitution.

 

Last month, Hamdi returned to Saudi Arabia. He was released in

exchange for his agreeing not to bring claims against the United

States for injuries suffered while imprisoned in Virginia and South

Carolina.

 

Hamdi is but one example of a rapidly growing string of court

decisions flipping the Bush's problematic policies because they

violate basic constitutional rights.

 

As attorney Elaine Cassel has recently pointed out in her new book,The

War on Civil Liberties, the Bush administration has followed a

predictable and increasingly failing pattern in prosecuting alleged

terrorists: it makes dramatic, highly public allegations that distort

the facts. It then accepts pleas to lesser charges in exchange for

prison sentences that are unusually harsh for those lesser charges.

Then it claims credit for " winning the war against terrorism. "

 

The Administration tried this in Detroit, where a year ago, Attorney

General John Ashcroft boasted that he had won his major court victory

in the war on terror by prosecuting a suspected terrorist sleeper

cell. Yet, we recently learned in the New York Times that the

prosecution was no victory at all – it was a farce, and one engineered

by the highest levels of the Justice Department. Not only that, but in

late August, the DOJ submitted a remarkable memorandum to federal

judge Gerald Rosen in Detroit, admitting that its prosecution had been

riddled with a pattern of mistakes and oversights.

 

This " victory " deserved to be flipped, and Judge Rosen did exactly that.

 

U.S. courts are even beginning to flip the almighty USA PATRIOT Act –

the cornerstone of Bush's civil liberties platform. For example, in

January, a federal district court in California declared

unconstitutional a section of the Act that prevented providing

material support for groups accused of being terrorists because it was

overly broad and vague and could apply to all kinds of non-terrorist

groups.

 

More recently – in fact, just before the first presidential debate – a

federal judge in New York struck down a major surveillance component

of the PATRIOT Act that gave the FBI extraordinary power to demand

information from companies without needing to obtain a court order.

Frighteningly, that section also prevented recipients of the letters

from ever revealing that they received the FBI demand for records.

Judge Marrero wrote that such " all-inclusive sweeps " for information

" had no place in our open society. "

 

And more challenges are on the way. A federal court in Michigan is

considering a challenge to another section of the Act that allows the

FBI to obtain an order to force any organization or business to turn

over any tangible evidence that could relate to a terrorism

investigation. Such cases will provide additional opportunities for

courts to flip additional sections of Bush's problematic legislation.

 

Flipping Bush in the Executive Branch

 

The courts are not the only sector of society that are throwing out

Bush's civil liberties practices – it is happening within the

President's own administration.

 

Recall that more than 13,000 Arabs and Muslims were detained and

deported since September 11. Often, they were not charged with any

offense, their families were not informed, and they were denied access

to counsel. And recall that not a single one was charged with a

specific act of terror.

 

Rightly, the Justice Department's own Inspector General has been

highly critical of this racially tainted, misguided type of " justice. "

In addition, the Inspector General – an Executive Branch employee –

has criticized the Administration because these detainees faced awful

conditions in jails across the country where they awaited their fates.

 

Yet, at the same time as the Bush administration has been rounding up

thousands of Muslims without demonstrating that any of them have any

connection to terrorism, it has also been severely curtailing a

broader investigation of non-terrorism related crimes. According to a

recent Justice Department study, the FBI's shift from a broad attack

on crime to an intense focus on counter-terrorism has resulted in tens

of thousands fewer investigations into " traditional " crimes since 9-11.

 

While that report did not specifically criticize the DOJ, given the

miserable record that the Bush administration has demonstrated in

prosecuting terrorism cases, one cannot help but question the

effectiveness of such policies in keeping our country safe and secure.

 

President Bush's Own Flipping

 

Of course, President Bush has a well-documented history of changing

his mind on civil liberties and domestic security questions.

 

For example, he initially opposed the creation of a Homeland Security

office because he did not want to federalize law enforcement. (In a

debate with Al Gore on October 11, 2000, he said, " I believe in local

control of governments. I think we need to find out where racial

profiling occurs and say to the local folks, get it done. " )

 

However, when political pressure increased after 9-11 for more

coordinated intelligence and law enforcement operations, Bush created

a massive new federal department, giving it billions of dollars to

centralize power within the federal level, combining 22 agencies and

more than 180,000 federal employees.

 

Kerry Gives a Few Clues

 

Compared to way the current administration regards civil liberties and

national security, Kerry's evolving positions on issues must be seen

in a different light.

 

The most frequently cited example, of course, is Kerry's change of

heart on the PATRIOT Act – by now, most Americans know that Kerry

voted for the Act and made some supportive statements about parts of it.

 

For instance, several weeks after the September 11 attacks, during a

speech on the Senate floor, Kerry said he was " pleased at the

compromise we have reached on the antiterrorism legislation, as a

whole. " And on Fox News that same week – before President Bush signed

the legislation – Kerry said the Act " streamlines the ability of law

enforcement to do its job. It modernizes our ability to fight crime. "

 

Since then, Americans – among them Senator Kerry – have watched as the

untrammeled use of the PATRIOT Act and other tools of the Bush

Administration's domestic war on terror have been used recklessly, and

have been crashing and burning around us.

 

With three years of lessons learned, of massive news coverage

detailing the horrors of the detention of innocent immigrants, of

American citizens held as enemy combatants, of outsourcing " tough "

interrogations to countries where torture is practiced freely, of Abu

Ghraib, Kerry now criticizes certain parts of the PATRIOT Act.

 

Can anyone blame him? To continue to support the Administration's

domestic war on terror in the face of three years of overwhelming

factual evidence of misuse and outright failures would be naïve and

misguided.

 

It is true that Kerry recently told the American Bar Association's

Journal that he believes " some provisions of the PATRIOT Act—like the

money laundering provisions—must be made stronger. " He added that,

" Others—like the library and `sneak-and-peek' search provisions—must

be made smarter, to better protect privacy and freedom while allowing

our government to do everything necessary to track down terrorists and

defend America. "

 

Here are some questions those concerned about civil liberties should

ask when choosing a Presidential candidate next week:

 

Which candidate is more likely to call for undermining the Bill of

Rights by holding U.S. citizens incommunicado and without access to

the courts?

 

Which candidate would ask residents to spy on each other, as the

administration's neighbor-spying-on-neighbor Terrorism Information and

Prevention System (TIPS) program would have done?

 

Which candidate would instruct federal courts to close court hearings

on routine immigration matters, as the Justice Department ordered in

late 2001?

 

Which candidate would be more likely make arrangements for people in

the U.S. who are potential suspects of terrorist-related crimes to be

covertly transferred to countries that permit torture, in order to

obtain information?

 

Flipped by the American electorate

 

If a sample of resolutions condemning the PATRIOT Act is any

indication, a steadily growing portion of the American electorate

appear more and more likely to flip Bush's civil liberties agenda.

 

At the time of this writing, more than 358 communities in 43 states,

including four state resolutions, covering about 55 million people,

have passed resolutions and other public statements expressing concern

about and opposition to the highly intrusive provisions of the PATRIOT

Act, or the convoluted, rushed, secretive process by which it zoomed

through Congress in the first six chaotic weeks after the September 11

attacks.

 

Not surprisingly, this list includes nearly all major American cities.

Yet, it also includes such " hotbeds of liberalism " as Lincoln,

Nebraska; Tumwater, Washington; Boone, North Carolina; and Jackson,

Mississippi – places in solidly Republican territory that have seen

the perils of Bush's domestic security policy which treats the

Constitution as a mere option to be ignored at the President's whims.

 

The federal courts and the Department of Justice's own Inspector

General have overturned aspects of the administration's policies that

they say are direct violations of American's civil liberties. On

November 2nd, citizens will have a chance to say for themselves what

they think of the civil liberties agenda of the past four years.

 

Noah Leavitt is an attorney who writes frequently on civil liberties

and human rights issues. He can be contacted at nsleavitt.