American Justice, Ashcroft-Style

Keith Feldman

The Bush administration's large-scale detentions of Arab and Muslim men -- without charge -- and draconian immigration restrictions are only two of its initiatives to erode civil liberties, civil rights and norms of procedural justice under cover of the "war on terrorism." Many initiatives were enabled by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, signed into law by George W. Bush on October 26, 2001, after little public debate and no public hearing. The USA PATRIOT Act, approaching its first anniversary on the books, passed the House of Representatives by a vote of 356 to 66. Only one senator, Russell Feingold (D-WI), voted to stop it.

Enemy Combatants

To date, over 500 "enemy combatants" captured in Afghanistan and elsewhere outside the US have been shipped to the US naval base in Guantanamo Bay, Cuba. The holding pen there known as Camp X-Ray, in operation since January, has drawn the fire of human rights groups for refusing to grant access to legal counsel, refusing to grant access to courts where detainees could offer legal challenges, and transferring suspects to countries where they may be subjected to torture and other interrogation techniques normally prohibited by US law. Camp X-Ray has recently been replaced by the permanent facility known as Camp Delta, which can house up to 2,000 people. Under international law, an independent tribunal should decide whether each individual combatant should be detained as a prisoner of war or repatriated. No such tribunal has been created for those at Guantanamo Bay. The indefinite detention which has resulted violates the Geneva Conventions. A group of civil rights lawyers, academics and clergymen is arguing before a panel of federal judges that the government has no right to declare these detainees off-limits to civilian courts. Their argument was tossed from a lower court, which cited the simple fact that Guantanamo Bay is technically outside the US, but this ruling is under appeal. José Padilla (Abdallah al-Muhajir), the alleged "dirty bomber" apprehended at the beginning of May, was declared an enemy combatant by Attorney General John Ashcroft personally. Ashcroft waited to announce the arrest until mid-June, amidst press murmurings about FBI whistleblower Colleen Rowley's unheeded warnings about the September 11 hijackers. No formal charges have been brought against Padilla, a US citizen born in Brooklyn, but he remains imprisoned in a navy brig with no timeline for appearing before a judge, even after Federal officials admitted in August that he is a "small fish" with no proven ties to an al-Qaeda plot. Padilla, like fellow "enemy combatant" and US citizen Yasser Hamdi, is presently without constitutional protections.

Military Tribunals

In its annual human rights reports, the State Department regularly blasts Egypt, Sudan, Turkey and other countries for trying civilians -- including alleged terrorists -- in state security courts which lack due process for defendants. But on November 13, Bush signed a military order allowing US military commissions to prosecute foreign nationals designated as members of al-Qaeda, others involved in terrorism against the US or those who knowingly harbored such persons. A Defense Department fact sheet released in March noted that the president and the secretary of defense would have the power to name who will be tried and who will sit on the commissions. They would appoint the prosecutorial and defense attorneys, decide which aspects of each case will be tried in secret and which in public, and approve all findings and sentences before they are deemed final. They could alter trial procedures at any time and for any reason.

No one as yet has been tried through this tribunal system, though Abu Zubayda, the highest-ranking member of al-Qaeda to be captured by US forces, may be a test case. Following Bush's lead, Britain's Home Office introduced a bill to permit military tribunals for alleged terrorists.

Profiling

During a 2000 presidential debate, Bush averred: "I can't imagine what it would be like to be singled out because of race and harassed. That's just flat wrong…. I do think we need to find out where racial profiling occurs and say to the local folks, get it done and if you can't, there'll be a federal consequence." Soon after being confirmed as attorney general, Ashcroft intoned that "to treat people based solely on their race is in violation of the Fourteenth Amendment of the United States Constitution." But after September 11 profiling has made a comeback. In an April 2002 report, the Council on American-Islamic Relations documented that complaints of discrimination at airports increased by 13 times, from 2 percent of all complaints the previous year to more than a quarter since September 11. Between October 2001 and June 2002, the American-Arab Anti-Discrimination Committee received reports involving over 100 Arab-Americans being removed from aircraft they had boarded. In June, four civil rights lawsuits were filed in federal courts accusing four major airlines of blatant discrimination against five men who had been removed solely based on their presumed ethnicity. In December, Bush ordered the closure of several Muslim charities, with the vague suggestion that they might be aiding and abetting terrorist organizations. The Holy Land Foundation for Relief and Development, the Global Relief Foundation and the Benevolence International Foundation have all been forced to close, though the government has yet to file criminal charges against any of the three. Roughly 50,000 donors were affected by these closures, organizations that initiated development projects in at-risk locations and aided refugees and victims of natural disasters. Recently, the US Customs Service shifted its supercomputer program known as the Numerically Integrated Profiling System away from tracking drug trafficking to monitoring more than 500 Muslim and Arab small businesses in the United States -- on suspicion of generating money for Hamas, Hizballah and the Popular Front for the Liberation of Palestine.

Attorney-Client Privilege

Beginning in late October, the Justice Department, sidestepping Congress altogether, authorized the monitoring of communications between attorneys and clients when there is "reasonable suspicion" that the inmate will use these communications to further terrorist activity. The government is currently testing its ability to breach attorney-client privilege in its case against New York attorney Lynne Stewart, who represented Sheikh Omar Abd al-Rahman, and her Arabic-language translator Mohammed Yousry. Stewart and Yousry were charged with aiding Abd al-Rahman, who is serving a life sentence plus 65 years in prison for his role in the 1993 World Trade Center attack, in communicating to the radical Islamic Group outside prison. The indictment alleges that Stewart distracted prison guards with legalese while Abd al-Rahman gave instructions for the group to Yousry in Arabic. Lawyers for Zacarias Moussaoui, the so-called "twentieth hijacker," are also filing court motions alleging breach of attorney-client privilege. His questions, notes, legal discussions and mail are all being closely monitored by prison authorities.

Surveillance

Relaxed regulation of government surveillance under the USA PATRIOT Act grants new wiretapping and enhanced Internet monitoring powers to Federal authorities. In June, Ashcroft set aside guidelines restricting FBI surveillance of religious and political organizations. Such surveillance can be initiated by a field agent without clearance or oversight from Washington.

The most Orwellian twist is the proposed Operation TIPS, the Terror Information and Protection System. TIPS is a branch of the recently founded Citizencorps, itself an offshoot of the Justice Department. It is meant to provide millions of utility workers, mail carriers, cable installers and others who by nature of their jobs have access to private homes with the necessary training to report "suspicious activity" directly to the Justice Department, essentially enabling the government to search people's homes without permission or a warrant. Whether TIPS will get beyond the pilot stage is uncertain, as House Majority Leader Dick Armey (R-TX) and Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, have both opposed the proposal. The United States Postal Service, after much waffling, instructed its carriers not to use the TIPS system. Facing this opposition, the Justice Department has scaled back the scope of TIPS, saying that "the [Operation TIPS] hotline number will not be shared with any workers, including postal and utility workers, whose work puts them in contact with homes and private property." Those involved in "transportation, trucking, shipping, maritime and mass transit industries" will still be called upon to contribute their intelligence, though at the expense of the private sector. Meanwhile, as recently reported in the online magazine Salon, the Justice Department has been forwarding incoming TIPS calls to the hotline for the "America's Most Wanted" television series. ACLU Legislative Counsel Rachel King likened the relationship to "retaining Arthur Andersen to do all of the SEC's accounting."

Secrecy

After months of discussion, Bush signed Executive Order 13233 last November, further limiting public access to presidential papers. Both current and former presidents are now given unlimited veto power over the release of presidential records. In order to overrule such a veto, the order explicitly requires a legal process by which a "demonstrated, specific need" must be established. Otherwise, the records at issue, which include any papers produced by the president, the vice president or any aides, will remain closed indefinitely. The springboard for the order came from the expiration in January 2001 of the 12-year period during which President Ronald Reagan's papers were kept private. The National Archives and Records Administration, as dictated by law, requested the release of 68,000 pages of correspondence between Reagan and his advisers. The Bush administration refused their release. Archivist Steven Hensen wrote in a Washington Post editorial that "the order effectively blocks access to information that enables Americans to hold our presidents accountable for their actions." Also in November, Ashcroft released a memorandum directing US agency heads to exercise caution when responding to requests under the Freedom of Information Act, a law meant to provide citizens a window into the workings of government. "When you carefully consider FOIA requests and decide to withhold records, in whole or in part," the memo read, "you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records." In other words, release the records only if the requester can make a stink.