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The Liberties We've Lost in the "War on Terror" Are Only Lost Temporarily, Right?

Monday, 12 December 2011 04:49 By William Fisher and Chip Pitts, Truthout | News Analysis
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"Virtually all of our most fundamental rights and liberties have been affected for the worse, with little or no awareness among the populace at large. The ignorance is no accident, but the product of conscious mendacity and complicity among the leading political parties, all branches of government, defense contractors and the entrenched military-industrial-surveillance complex, and mainstream media - all of which (with occasional notable exceptions) are tragically pulled by various perverse incentives in the direction of trying to outdo each other in pandering to the basest fears and instincts of the American Body Politic."

He added: "A huge number of legal violations have occurred, ranging from the momentous - illegal war - to the mundane - failure to fully notify the appropriate committees of Congress about the illegal warrantless surveillance as required under the National Security Act - but I'll limit myself to highlighting the most significant to the rights of the American public."

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How has the "War on Terror" impacted the rule of law?

"The first category of infringements I would place under the general rubric of undermining the rule of law. Although all the regressions could be put in this category, some strike more than others at the very concept itself. If the rule of law means anything, it means that everyone is subject to the same rules of general application and that those rules are fairly applied: a 'government of laws, and not of men' as founding father and American president John Adams famously put it."

"Yet, we now have a much more arbitrary system of justice in which people can be deemed second-class citizens and have their assets seized, have their travel and other rights burdened and be stigmatized, imprisoned or even killed merely by essentially unreviewable executive fiat."

"That's the net effect of new approaches including the following, all of which impose serious burdens without the traditional checks and balances and independent reviews previously enshrined in law:

  • Asset Seizure section 106 of the Patriot Act, which has led, for example, to the closure on legally dubious grounds of nearly all of the major Muslim charities in the United States, among other seizures occurring merely upon executive branch 'designation';
  • The notoriously error-ridden 'watch lists' and 'no fly' lists which have thrown certain innocent individuals into a Kafkaesque hell from which there's no easy escape, setting a precedent for further pernicious 'government by watch-list' that extralegally allocates benefits and burdens;
  • The Transportation Security Administration (TSA) body scanners, which don't work to detect the plastic explosives which were their supposed reason for being, as noted by sources as diverse as the nonpartisan Government Accountability Office (GAO), and CNN's Dr. Sanjay Gupta - but have been shown to pose risks to privacy and health, disproportionately burdening vulnerable populations including children, the elderly, religious objectors, and the immune-compromised, who risk serious harm from the cumulative effects of long-term radiation exposure;
  • The reality of profiling on racial, religious, ethnic and national origin grounds despite official rhetoric and policies against it, facilitated by reliance on a (likely unconstitutional) broad exception relating to national security- and border-related investigations;
  • The risk that anyone could be subject to the military commissions regime, a novel secondary justice system in which the executive branch is judge, jury and executioner, and in which a person may find themselves arbitrarily placed without principled distinction simply because they've been labeled a 'terrorist' or 'enemy combatant' (thus US citizen Jose Padilla was shifted at the last minute from the military to the civilian regime after years of  being imprisoned, tortured and denied counsel as an "enemy combatant," and shoe bomber Richard Reid was tried in civilian court as were 400 other terrorists, but others find themselves subjected, without reasoned explanation, to the lower evidentiary and justice standards of the military regime);
  • Assassination (defenders call it legal 'targeted killing') even of US citizens off the battlefield, without due process of law, without lawyers or the right to confront the evidence or witnesses against them, without the right to trial by jury or any of the other protections guaranteed by the US Constitution."

Haven't we also experienced specific infringements of fundamental rights crucial to our national identity and fundamental values?

"We certainly have. Even a cursory review of the constitutional protections that have been compromised illustrates the point. For example:

  • The First Amendment rights of freedom of speech, press, association, assembly, religion and petitioning government for redress of grievances, all newly under pressure from widespread warrantless surveillance, secret data mining of private data, surreptitious infiltration of peaceful protest and solidarity groups, President Obama's increased prosecution of supposedly protected whistleblowers and leakers, and changes in the law allowing criminalization and chilling of such speech and association promoting peace and human rights under the Patriot Act's 'material support' provision (which criminalized 'expert advice and assistance' and was upheld in the US Supreme Court's closely divided, erroneous decision Holder v. Humanitarian Law Project);
  • The Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the Foreign Intelligence Surveillance Act (FISA) Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans' phone calls, emails and web-surfing habits), Patriot Act provisions, including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target), section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere 'relevance' standard and probably also being interpreted to allow a secret data mining program some senators say would 'stun' and 'anger' the US public if revealed), section 213 (allowing 'sneak and peek' secret black bag job searches of homes), and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).
  • The Fifth Amendment right to due process of law has been infringed not only by the extreme measure of assassination noted above, but also by increasingly routine arbitrary changes of the rules - contrary to President Obama's promises - so as to block accountability for other violations of fundamental rights, as with the use of the state secrets privilege, standing and other procedural doctrines to completely immunize those who labeled citizens like Jose Padilla 'enemy combatants,' or those who tortured, participated in extraordinary rendition (kidnapping and 'disappearing' people) to places of torture, and planned and conducted warrantless surveillance;
  • The Eighth Amendment rights to freedom from torture and cruel, inhuman, and degrading treatment (also protected by an international treaty, the Convention Against Torture signed by President Ronald Reagan, and by federal statute), which has been rhetorically embraced by both the Bush and Obama administrations but ignored in practice (especially by the former, but also, allegedly, to a lesser extent even by the latter, in cases such as those of Bradley Manning, Gulet Mohamed, and in Afghanistan and Iraq)."

Have these major infringements spilled over into the routine law enforcement and justice systems of the United States?

"Some of us had naive expectations that these developments wouldn't further affect ordinary citizens. Yet, we now all know that legions of ordinary citizens already have been harmed and had their privacy and liberties infringed by National Security Letters and other Patriot Act provisions, as decades of gradual progress in expanding rights have been undermined and generations who have fought for hard-won liberties have seen both their liberty and their security dramatically reduced this past decade. This category includes:

  • The increasing militarization of domestic policing and intelligence gathering, as seen in such developments as the Pentagon's new Northern Command (NORTHCOM), the Joint Special Operations Command (JSOC) involvement in domestic intelligence and counterterror efforts, Pentagon involvement in infiltration of domestic peace and antiwar groups, increasing deployment of weaponized drones within US borders as well as at the borders, and the surveillance, biometrics, and other equipment and weapons defense contractors have imported from Iraq and Afghanistan into American streets, all as described by (among others) Dana Priest and Bill Arkin in their "Top Secret America" Washington Post series and book, and all in great tension with our constitutional regime and historic bias against domestic deployment of military forces as reflected in Posse Comitatus and other laws;
  • Although sold as temporary emergency counterterror measures, these laws and approaches such as the Patriot Act have only become more permanent and used overwhelmingly for routine, domestic law enforcement (such as drug cases and minor offenses) - as repeatedly confirmed in the government's own reports, such as the recent one described by the American Civil Liberties Union (ACLU) pertaining to 'sneak and peek' home-search warrants - again contrary to the basic premises and fundamental laws of our democratic republic and its origins in a Declaration of Independence, Constitution and Bill of Rights arranged precisely against such arbitrary and unconstrained power.
  • The way the laws have been used, as described above, to immunize high officials and the powerful from accountability of any type (no torture victim has received his or her day in US court!) at the very time laws for lesser violations have resulted in the United States carrying the dubious honor of having imprisoned more of its population, in both absolute and percentage terms, than any other nation in the world. This discrepancy remains a substantial driver for the Occupy movement and can be expected to continue to drive social instability, protest and conflict unless and until the gaps in transparency and accountability are remedied and again realigned with the original, sensible constitutional vision and allocation of rights and powers."

Chip Pitts

Chip Pitts teaches human rights and corporate social responsibility law at Stanford Law School and Oxford University and serves as a volunteer activist for a number of organizations and initiatives seeking to advance human rights, civil liberties, social justice and economic development.

William Fisher

William Fisher has managed economic development programs in the Middle East and in many other parts of the world for the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and for the Associated Press in Florida. Fisher also served in the international affairs area during the Kennedy administration. Go to The World According to Bill Fisher for more.


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