by Angana Chatterji
July 17, 2003
After Iraq what next? In its self-ascribed role as global cop, the United States is scrutinizing “the arc of instability”, focusing its Orwellian gaze across North Korea, South and Central Asia, Africa and the Caribbean Basin. At home, the United States Supreme Court recently reversed a ruling made 17 years ago that allowed states to target homosexuality through punishing the practice of sodomy. The Court also preserved affirmative action in college admissions while narrowing the parameters of such action.
The Supreme Court's ruling limits the power of government to regulate private life and social action. In contradiction, the current administration continues to juxtapose civil liberties and national security, acting to increase its powers of surveillance and interrogation, and expand provisions of arbitrary detention of non-citizens. Government policies have diminished the civil rights landscape in the United States. Such policies have acted to weaken the independence of non-governmental organizations, demanding uniform obedience to the government's war on terror. This administration has insisted on secret deportation hearings, authorized military commissions to try non-citizen terrorists, and confined US citizens classified as 'enemy combatants' without charges or access to counsel. These actions suggest the failure of government to defend human rights and international law. While Americans persist in practicing freedoms sacrosanct to the foundation of this country, powerful anti-Arab, anti-Muslim and repressive currents continue to swirl.
An ominous indication of this government's callousness toward civil liberties is the Patriot Act. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA-PATRIOT) Act was proposed less than a week after September 11, 2001, and received by the United States Senate on October 24. President Bush signed the USA-PATRIOT Act into law on October 26, 2001. Given the expeditious timeframe within which this legislation was proposed and adopted, one must ask when and why the work on the 132-page document actually began.
The Act passed with little discussion. Without a House, Senate or conference report it lacks the legislative history essential to offering retrospective guidance in statutory interpretation. Injecting a profusion of legislative changes, the Act is in violation of the First, Fifth and Sixth Amendments. The Act extensively increases the government's capacity to police and investigate. It fails to instate checks and balances necessary to protect civil liberties.
Russ Feingold was the only senator to oppose the Act, concerned about its implications on the rights of immigrants, particularly from Muslim, Arab and South Asian countries. Confirming Senator Feingold’s apprehension, 1200 men of Middle Eastern descent were imprisoned, their identity and location undisclosed, and denied due process rights. Eight thousand men were questioned selectively. Entry and exit registration and fingerprinting systems were imposed.
The USA-PATRIOT Act erodes public scrutiny and accountability, and compromises judicial oversight. It makes serious amendments to 15 significant statutes, including the Family Education Rights and Privacy Act, the Electronic
Communications Privacy Act, Immigration and Nationality Act, the Computer Fraud and Abuse Act, Right to Financial Privacy Act, Fair Credit Reporting Act, and Bank Secrecy Act. The Patriot Act amplifies the disclosure of information acquired in criminal investigations related to foreign intelligence or counterintelligence. It impacts the Foreign Intelligence Surveillance Act. The Patriot Act does not restrict dissemination of information related to investigations of terrorist activities. It adds to the powers of law enforcement agencies and empowers them to conduct searches without a warrant. It expands the subpoena of records of electronic communications.
The powers consecrated to the state via the Patriot Act can have egregious consequences on the social and political life of the people of the United States. Section 802 of the Patriot Act enlarges the definition of terrorism to cover domestic acts of terror. The American Civil Liberties Union has charged that the scope of the definition itself is unlimited. By enveloping domestic terrorism as all acts dangerous to human life, the government may overreach its authority to include property damage or domestic violence as acts of domestic terrorism!
As people in the United States struggle to grasp the impact of the first Patriot Act, this administration is proposing a second and more invasive “Domestic Security Enhancement Act.” “Patriot II” is premised on the inherently precarious assumption that the United States will be made safer by rescinding basic checks and balances on governmental power. Reproducing the unprecedented power already sanctioned to government via the first Act, Patriot II will permit the government to spy on activities protected by the First Amendment. This new legislation will remove necessary constraints on government power, undercut personal privacy, and the need for government transparency. It will assail the heart of democracy and impact the access of the press to information. It will scapegoat ordinary people, and undermine the function of the courts and Congress in restricting executive power. Such government excess supersedes the imagination of McCarthyism.
In the United States there has been little effort to assess whether the inadequacies of existing surveillance systems enabled the attacks of September 11, or if the unprecedented changes made by Patriot I and proposed by Patriot II will actually help prevent another attack. The American Civil Liberties Union and other campaigns are insistent that before endorsing Patriot II, Congress must analyze the terms of Patriot I to ensure that it conforms to fundamental constitutional principles.
National security is critical to our times and a commitment to strengthening the nation must include reflection on the part of the state and civil society. On September 11, 2001, four planes were turned into weapons of terror, leaving around 3,000 dead. The attack violated the very premise of humanitarian law and the lives of civilians in the United States. Following September 11, the United Nations Security Council, the G8 Group of Industrialized Nations, and numerous regional alliances implemented fiscal and other controls over political groups resolved to violence. Yet, in so many instances, this determination on the part of nations and coalitions to fight terror has ironically witnessed the revenging of innocent lives, the undermining of human rights and the corrosion of international law.
As the political spectrum narrows, we must energise a different script for citizenship. Ethical citizenship must dissent the use of violence on the part of states and groups. It must be critical of a corporate, military state and its unilateralism. Freedom must come with formidable responsibilities. To be for America, the yearning must be for democracy over empire.