WHO'S READING YOUR E-MAIL?
Draconian Law Enforcement is not a Solution to Terrorism
By Michael Ratner
I live just a few blocks from the World Trade Center. In New York, we are still mourning the loss of so many after the attacks on our
city. We want to arrest and punish the terrorists, eliminate the terrorist network and prevent future attacks. But the government's
declared war on terrorism, and some of the anti- terrorism measures planned, include a curtailment of freedom and constitutional rights
that have many of us concerned.
The domestic consequences of the war on terrorism include massive arrests of immigrants, the creation of a special new cabinet office of
Homeland Security and the passage of legislation granting intelligence and law enforcement agencies much broader powers to intrude
into the private lives of Americans. The war on terrorism also means pervasive government and media censorship of information, the
silencing of dissent, and widespread ethnic and religious profiling of Muslims, Arabs and Asian people.
The claimed necessity for this war at home is problematic. The legislation and other governmental actions are premised on the belief
that the intelligence agencies failed to stop the September 11th attack because they lacked the spying capability to find and arrest the
conspirators. Yet neither the government nor the agencies have demonstrated that this is the reason.
This war at home gives Americans a false sense of security, allowing us to believe that tighter borders, vastly empowered intelligence
agencies, and increased surveillance will stop terrorism. The United States is not yet a police state. But even a police state could not
stop terrorists intent on doing us harm. And the fantasy of Fortress America keeps us from examining the root causes of terrorism, and
the consequences of decades of American foreign policy in the Middle East, Afghanistan and elsewhere. Unless some of the grievances
against the United States are studied and addressed, terrorism will continue.
The New Legal Regime
The government has established a tripartite plan in its efforts to eradicate terrorism in the United States. President Bush has created a
new cabinet-level Homeland Security Office; the Federal Bureau of Investigation is investigating thousands of individuals and groups
and making hundreds of arrests; and Congress is enacting new laws that will grant the FBI and other intelligence agencies vast new
powers to wiretap and spy on people in the United States.
The Office of Homeland Security
On September 20th President Bush announced the creation of the Homeland Security Office, charged with gathering intelligence,
coordinating anti-terrorism efforts and taking precautions to prevent and respond to terrorism. It is not yet known how this office will
function, but it will most likely try to centralize the powers of the intelligence and law enforcement agencies -- a difficult, if not
impossible, job -- among some 40 bickering agencies. Those concerned with its establishment are worried that it will become a super
spy agency and, as its very name implies, that the military will play a role in domestic law enforcement.
FBI Investigations and Arrests
The FBI has always done more than chase criminals; like the Central Intelligence Agency it has long considered itself the protector of
U.S. ideology. Those who opposed government policies -- whether civil rights workers, anti-Vietnam war protestors, opponents of the
covert Reagan-era wars or cultural dissidents -- have repeatedly been surveyed and had their activities disrupted by the FBI.
In the immediate aftermath of the September 11 attack, Attorney General John Ashcroft focused on non-citizens, whether permanent
residents, students, temporary workers or tourists. Normally, an alien can only be held for 48 hours prior to the filing of charges.
Ashcroft's new regulation allowed arrested aliens to be held without any charges for a "reasonable time," presumably months or longer.
The FBI began massive detentions and investigations of individuals suspected of terrorist connections, almost all of them non-citizens
of Middle Eastern descent; over 1,100 have been arrested. Many were held for days without access to lawyers or knowledge of the
charges against them; many are still in detention. Few, if any, have been proven to have a connection with the September 11 attacks and
remain in jail despite having been cleared. In some cases, people were arrested merely for being from a country like Pakistan and having
expired student visas. Stories of mistreatment of such detainees are not uncommon.
Apparently, some of those arrested are not willing to talk to the FBI, although they have been offered shorter jail sentences, jobs,
money and new identities. Astonishingly, the FBI and the Department of Justice are discussing methods to force them to talk, which
include "using drugs or pressure tactics such as those employed by the Israeli interrogators." The accurate term to describe these tactics
is torture. Our government wants to torture people to make them talk. There is resistance to this even from law enforcement officials.
One former FBI Chief of Counter Terrorism, said in an October New York Newsday article, "Torture goes against every grain in my
body. Chances are you are going to get the wrong person and risk damage or killing them."
As torture is illegal in the United States and under international law, U.S. officials risk lawsuits by such practices. For this reason, they
have suggested having another country do their dirty work; they want to extradite the suspects to allied countries where security
services threaten family members and use torture. It would be difficult to imagine a more ominous signal of the repressive period we are
The FBI is also currently investigating groups it claims are linked to terrorism -- among them pacifist groups such as the U.S. chapter of
Women in Black, which holds vigils to protest violence in Israel and the Palestinian Territories. The FBI has threatened to force
members of Women in Black to either talk about their group or go to jail. As one of the group's members said, "If the FBI cannot or will
not distinguish between groups who collude in hatred and terrorism, and peace activists who struggle in the full light of day against all
forms of terrorism we are in serious trouble."
Unfortunately, the FBI does not make that distinction. We are facing not only the roundup of thousands on flimsy suspicions, but also
an all-out investigation of dissent in the United States.
The New Anti-Terrorist Legislation
At the time of this writing, the United States Congress has passed and President Bush will soon sign sweeping new anti-terrorist
legislation aimed at both aliens and citizens. The proposed legislation met more opposition than one might expect in these difficult
times. A National Coalition to Protect Political Freedom of over 120 groups ranging from the right to the left opposed the worst
aspects of the proposed new law. They succeeded in making minor modifications, but the most troubling provisions remain, and are
Rights of Aliens
Prior to the legislation, anti-terrorist laws passed in the wake of the 1996 bombing of the federal building in Oklahoma had already given
the government wide powers to arrest, detain and deport aliens based upon secret evidence -- evidence that neither the alien nor his
attorney could view or refute. The current proposed legislation makes it even worse for aliens.
First, the law would permit "mandatory detention" of aliens certified by the attorney general as "suspected terrorists." These could
include aliens involved in barroom brawls or those who have provided only humanitarian assistance to organizations disfavored by the
United States. Once certified in this way, an alien could be imprisoned indefinitely with no real opportunity for court challenge. Until
now, such "preventive detention" was believed to be flatly unconstitutional.
Second, current law permits deportation of aliens who support terrorist activity; the proposed law would make aliens deportable for
almost any association with a "terrorist organization." Although this change seems to have a certain surface plausibility, it represents a
dangerous erosion of Americans' constitutionally protected rights of association. "Terrorist organization" is a broad and open-ended
term that could include liberation groups such as the Irish Republican Army, the African National Congress, or civic groups that have
ever engaged in any violent activity, such as Greenpeace. An alien who gives only medical or humanitarian aid to similar groups, or
simply supports their political message in a material way could be jailed indefinitely.
More Powers to the FBI and CIA
A key element in the new law is the wide expansion of wiretapping. In the United States wiretapping is permitted, but generally only
when there is probable cause to believe a crime has been committed and a judge signs a special wiretapping order that contains limited
time periods, the numbers of the telephones wiretapped and the type of conversations that can be overheard.
In 1978, an exception was made to these strict requirements, permitting wiretapping to be carried out to gather intelligence information
about foreign governments and foreign terrorist organizations. A secret court was established that could approve such wiretaps without
requiring the government to show evidence of criminal conduct. In doing so the constitutional protections necessary when investigating
crimes could be bypassed. Eventually, the secret court's jurisdiction was expanded so that it could permit the FBI to secretly search
homes and offices as well as obtain bank records and the like. The secret court is little more than a rubber stamp for wiretapping
requests by the spy agencies. It has authorized over 10,000 wiretaps in its 22-year existence, approximately a thousand last year, and
has apparently never denied a request.
Under the new law, the same secret court will have the power to authorize wiretaps and secret searches of homes in criminal cases --
not just to gather foreign intelligence. The FBI will be able to wiretap individuals and organizations without meeting the stringent
requirements of the Constitution. The law will authorize the secret court to permit roving wiretaps of any phones, computers or cell
phones that might possibly be used by a suspect. Widespread reading of e-mail will be allowed, even before the recipient opens it.
Thousands of conversations will be listened to or read that have nothing to do with the suspect or any crime.
The new legislation is filled with many other expansions of investigative and prosecutorial power, including wider use of undercover
agents to infiltrate organizations, longer jail sentences and lifetime supervision for some who have served their sentences, more crimes
that can receive the death penalty and longer statutes of limitations for prosecuting crimes. Another provision of the new bill makes it a
crime for a person to fail to notify the FBI if he or she has "reasonable grounds to believe" that someone is about to commit a terrorist
offense. The language of this provision is so vague that anyone, however innocent, with any connection to anyone suspected of being a
terrorist can be prosecuted.
Overall, the new legislation represents one of the most sweeping assaults on liberties in the last 50 years. It is unlikely to make us more
secure; it is certain to make us less free.
Censorship at Home: Unofficial and Official
Censorship in the United States during this war period is rampant. The White House press secretary, Ari Fleisher, warned that "people
have to watch what they say and what they do." A prevalent attitude is that you are either with us or against us; questioning the
practices and policies of the United States is considered unpatriotic. Dissenters from the drumbeats of war or those who want to
examine underlying causes for the attack are given almost no voice; if they dare to speak they are roundly castigated. The logic is that
we do not criticize our nation at war and that to examine causes is to excuse the terrorists.
This is what happened when Susan Sontag, the New York intellectual, disputed the assumption that the September 11 attack was an
assault on "civilization" or "liberty." Instead she wrote that it was an attack on "the world's self-proclaimed superpower, undertaken as
a consequence of specific American alliances and actions." She was furiously attacked in the media as part of the "hate-America crowd"
and as "morally obtuse." Almost anyone who dares examine what might lie behind the hatred felt by many in the Mideast toward
America is attacked for those views. The New York Daily News described those who sought to look at the roots of the terror as "60's
throwbacks, radical Muslims, far- far-left fringe and just plain wackdoodles ... [that] the enemy might love."
Self-censorship by the media and even liberal organizations is also occurring. Often this occurs by simply not airing alternative views --
one show actually cutoff the microphone in mid -sentence of a guest arguing for a legal not a military response. A radio station
apparently fired a well-known journalist for broadcasting an interview with the one member of Congress, Barbara Lee, who voted
against the war. A number of journalists have been fired for criticizing the president. TV stations have rarely covered the protests
against the war and the views of those opposed to the war are demeaned. A New York Times headline about a peace demonstration was
titled "Protestors Urge Peace with Terrorists" despite calls at the demonstration for bringing the terrorists to justice.
Almost no criticism of U.S. leaders is permitted -- even when unrelated to the war. Two major environmental organizations, the Sierra
Club and the Natural Resources Defense Council, pulled ads criticizing Bush's environmental policies and one even removed critical
comments from its website. The long-running website criticizing the policies of Mayor Giuliani of New York was taken down and
replaced with a message of support for him. A group of news organizations including The New York Times decided not to publish the
results of its recount of the votes in the disputed presidential election in Florida; it was believed it would undermine the legitimacy of
Government censorship has become more and more overt. For a short while President Bush said he was going to curtail military and
intelligence briefings to Congress. This would have cut the Congress out of the war making process and left all decisions in the hands of
the President -- an act both dangerous and unconstitutional. Luckily, the president reversed himself within a few days, but whether he
is giving Congress a full report is unknown.
However, the press receives very little information; it receives briefings of a general nature about military affairs, but reporters are not
permitted to accompany the troops onto the aircraft carriers or even into Oman, where Army Rangers are based. Nor has there been full
access to government officials; many have refused to answer requests for interviews. These are the most severe restrictions on the press
probably in U.S. history, and certainly since before World War II.
The most remarkable act of censorship was the government's request that the five major TV networks not fully air the prerecorded
statements of Osama bin Laden and his associates. The White House claimed it did not want bin Laden's propaganda messages about
killing Americans widely broadcast, and that the statements might contain secret codes. Neither reason made much sense: bin Laden's
statements are already widely available around the world, and airing them in the United States would more likely build support for the
war among Americans, not undermine it. As for secret messages, the government admits that none have been found. Nonetheless, the
TV networks agreed not to run the tapes, and the government has extended its request to print media.
The United States has always prided itself on its constitutional protection of free speech and a free press, a freedom considered
especially important at times of war when vigorous public debate is essential to a democracy.
It is not uncommon for governments to reach for draconian law enforcement solutions in times of war or national crisis. It has happened
often in the United States and elsewhere. We should learn from historical example: times of hysteria, of war, and of instability are not
the times to rush to enact new laws that curtail our freedoms and grant more authority to the government and its intelligence and law
The U.S government has conceptualized the war against terrorism as a permanent war, a war without boundaries. Terrorism is
frightening to all of us, but it's equally chilling to think that in the name of antiterrorism our government is willing to suspend
constitutional freedoms permanently as well.
Michael Ratner is a human rights attorney with the Center for Constitutional Rights in New York.