Five Ways Bush's Era of Repression Has Stolen Your Liberties Since 9/11

The following is an excerpt of Matthew Rothschild's "You Have No Rights: Stories of America in an Age of Repression" (The New Press, 2007).

To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists. ... They give ammunition to America's enemies, and pause to America's friends.
-- former attorney general John Ashcroft

You're either with us or against us. -- George W. Bush

Today's America is a much less free place than the America of 2000. Following the attacks of September 11, 2001, the Bush administration has, by word and by deed, erected an edifice of repression here in the United States.

We've been living in it ever since. And it's not a comfortable place. The government is monitoring your phone calls and can read your e-mails and open your snail mail.

The government can access records of your large financial transactions, such as buying a house.

Law enforcement officers can bust into your home when you're not there, riffle through your belongings, plant a recording device on your computer, and leave without notifying you for at least thirty days -- and maybe a lot more.

You no longer have the right to protest where the president or vice president can see you, or at major public events when they aren't even present.

Law enforcement officers can now monitor you in public if you are merely exercising your political rights.

They can infiltrate your political organizations.

And they can keep track of you at your place of worship. The government can find out from bookstores and libraries the material you've been reading, and the bookstore owner and the librarian can't talk about it, except to their lawyers, for a whole year -- or more.

The government can hold you in preventive detention for months on end as a "material witness."

If you're not a citizen the government can deport you on a technicality or for mere political association.

If you're not a citizen the government can label you an "enemy combatant" and send you to secret prisons around the world, where you may never see the light of day again -- much less a lawyer or a judge. And even if you are a citizen, the government can label you an enemy combatant and hold you in solitary confinement here in the United States.

Under George W. Bush's interpretation of the president's powers during the so-called war on terror he can do just about whatever he wants. He cites the Authorization for Use of Military Force bill, which Congress passed on September 18, 2001, as the justification for this enormous leeway.
"Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics,"Bush said in a speech at Kansas State University on January 23, 2006. Those tactics, he presumes, are totally up to him. Under this rationale Bush could send F-16s to attack a residential area in, say, Indianapolis if he thought Al Qaeda suspects were there.

Lest you think I'm exaggerating, check out the February 13, 2006, issue of Newsweek:

A Justice Department official suggested that in certain circumstances, the President might have the power to order the killing of terrorist suspects inside the United States. ... Steven Bradbury, acting head of the department's office of Legal Counsel, went to a closed-door Senate Intelligence committee meeting last week to defend President George W. Bush's surveillance program. During the briefing, said Administration and Capitol Hill officials (who declined to be identified because the session was private), California Democratic Sen. Dianne Feinstein asked Bradbury questions about the ex- tent of Presidential powers to fight Al Qaeda; could Bush, for instance, order the killing of a Qaeda suspect known to be on U.S. soil? Bradbury replied that he believed Bush could indeed do this, at least in certain circumstances.

Yes, the U.S. government has a primary obligation to protect us all from another attack. But there needs to be a legal limit; there needs to be a respect for our Constitution and our liberties. Otherwise, as Senator Russ Feingold pointed out, "this country won't be America."

What the Bush administration did after 9/11 was not to engage in precise police work to find any would-be terrorists in our midst. Instead, it issued edicts and enacted laws that curtailed all of our freedoms. And it cast a gigantic dragnet over Arabs and Muslims in this country, treating many of them with a de facto presumption of guilt. To put those experiences in context we need to examine how the Bush administration constructed the edifice of repression.

It got the job done, in part, by blasting those who dared to dissent. When the president's former press secretary Ari Fleischer told people they should "watch what they say" after comedian Bill Maher on ABC's Politically Incorrect dared to question the label of "cowards" that Bush had slapped on the suicide bombers, it sent a message. As did the canceling of Maher's show. As did Bush's repeated assertion that "you're either with us or against us."

The message was clear: If you dissent you're un-American, you're a traitor.

And that message went down the ranks.

"You can make an easy kind of link that, if you have a protest group protesting a war where the cause that's being fought against is international terrorism, you might have terrorism at that protest, "Mike Van Winkle, spokesman for the California Anti-Terrorism Information Center, told the Oakland Tribune in 2003. "You can almost argue that a protest against that is a terrorist act."

Celebrity dissenters, such as Susan Sarandon, Tim Robbins, Sean Penn, Linda Ronstadt, and the Dixie Chicks, all felt the sting of reprobation. The attacks on them reinforced the idea in the air that if you speak out, you'll pay a price. Gradually, as Bush's popularity has faded, his power to regulate the cultural thermostat has diminished.

But the Bush administration's efforts have gone way beyond chilly climate control. Breathtaking in its audaciousness, the administration has implemented, of ten by fiat, an amazing array of repressive policies that still stand. These policies deprive us of some of our most precious freedoms and threaten the very character of our democratic system. This repression has not been indiscriminate. For the most part white, non-Muslim U.S. citizens have not felt the full brunt of it. But for many Muslim and Arab and South Asian immigrants in America, citizen or not, America became inhospitable overnight. Their quality of life, their sense of security, has never been the same.

1. The Ashcroft raids

Just as the rounding up of ten thousand immigrants and radicals from 1918 to 1921 became known as the Palmer Raids, after Attorney General A. Mitchell Palmer, so too should the roundups after September 11 be called the Ashcroft Raids.

John Ashcroft, who served as attorney general from 2001 to 2005, sent law enforcement officers around the country to seize Muslims and Arabs in the United States and to hold them on whatever conceivable pretext. As David Cole notes in Enemy Aliens, this was a policy of "mass preventive detention." In the first two months after 9/11 the Ashcroft Raids had rounded up more than 1,182 people. (The Justice Department stopped reporting numbers after that.) Some were citizens; the majority were not.

Ashcroft sent law enforcement agents all over the country to nab immigrants on the slightest offenses. As he told the U.S. Conference of Mayors on October 25, 2001, "Let the terrorists among us be warned: If you overstay your visa -- even by one day -- we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage."

Some Arabs and Muslims in the United States were apprehended solely on "anonymous tips called in by members of the public suspicious of Arab and Muslim neighbors who kept odd schedules," according to a June 2003 report of the Justice Department's office of the Inspector General titled "A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks." One such detainee worked at a grocery store run by Middle Eastern men that was open twenty-four hours a day, and someone called that in as a threat, the report says. Three other Middle Eastern men were stopped in Manhattan on a traffic violation. In their car were design plans for a public school. Even though "their employers confirmed that the men were working on construction at the school and that it was appropriate for them to have the plans," they were detained.

"The Department was detaining aliens on immigration violations that generally had not been enforced in the past," the report noted. And it was detaining them for long periods of time, without the usual due process.

Before 9/11, the Immigration and Naturalization Service (INS) had a practice of charging detainees within forty-eight hours of their arrests. After the attacks, the INS changed that to seventy-two hours and added a huge loophole: "In the event of an emergency or other extraordinary circumstances, the charging decision could be made within an additional reasonable period of time," the inspector general's report said. That period was not specified, so there was no outer limit. More than 100 detainees were not charged within the first 10 days of detention, and five detainees waited "approximately 168 days after their arrest" to be charged. These delays "affected the detainees' ability to obtain effective legal counsel."

The detainees were held without bond. Many were labeled in an "indiscriminate and haphazard manner" by the FBI, making it difficult "to distinguish between aliens who it actually suspected of having a connection to terrorism as opposed to aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism." Many were held in the most restrictive wings of detention facilities.

And for the first "several days to several weeks" they were held incommunicado, not allowed to make any calls to lawyers or loved ones. On average, the FBI held these detainees for 80 days before clearing them. One was actually held for 244 days: "The untimely clearance process had enormous ramifications for September 11 detainees." One of those ramifications was brutalization.

At the Metropolitan Detention Center in Manhattan "there is evidence supporting the detainees' claims of abuse," the inspector general's report concluded. Detainees said officers "slammed them into walls, dragged them by their arms, stepped on the chain between their ankle cuffs ... and twisted their arms, hands, wrists, and fingers." One detainee said that "an officer bent his finger back until it touched his wrist. Another said that "officers repeatedly twisted his arm, which was in a cast."

The Ashcroft Raids included not only the initial dragnet after September 11 but two other dragnets. One was the Absconder Apprehension Initiative. This program expressly targeted Arabs and Muslims for deportation, even though they made up only a tiny fraction of "the more than 300,000 foreign nationals living here with outstanding deportation orders," Cole writes in Enemy Aliens. The other was the Special Registration program, which ordered immigrant men from predominantly Muslim or Arab countries to report to the immigration service. According to Cole, these three dragnets combined rounded up more than 5,000 people. With nothing to show for it.

"This program has been a colossal failure at finding terrorists," Cole writes, "of the more than 5,000 persons subjected to preventive detention as of May 2003, not one has been charged with any involvement in the crimes of September 11."

The Center for Constitutional Rights filed a class-action lawsuit on behalf of "male non-citizens from the Middle East, South Asia, and elsewhere who are Arab or Muslim or have been perceived by Defendants to be Arab or Muslim, who have been arrested and detained on minor immigration violations" after 9/11. The suit, Turkmen v. Ashcroft, charged that their First, Fourth, Fifth, and Sixth Amendment rights were violated.

On June 14, 2006, District Judge John Gleeson dismissed the plaintiffs' claims, except those relating to the conditions of their confinement. He ruled that it was OK for the government to hold the detainees essentially on a pretext -- a minor immigration infraction -- when, in fact, they were holding them for other purposes. He said that it was OK for the government to hold detainees for six months -- and sometimes longer -- after a judge has issued a determination to deport. In fact, he said, the government could hold them so long as their release was "reasonably foreseeable" -- an exceptionally elastic term. And he said that it was OK for the government to discriminate on the basis of race, religion, and/or national origin by holding Muslim and Arab detainees longer than others. The judge cited a Supreme Court case (Reno v. American-Arab Anti-Discrimination Committee) that said that the discrimination needs to be "so outrageous"as to overcome the deference owed to the executive branch in immigration matters.

Judge Gleeson said there was nothing outrageous about the alleged discrimination in this case.

As Cole, who worked on the case with the Center for Constitutional Rights, pointed out in a Los Angeles Times piece, "In essence, he authorized a repeat of the Japanese internment."

2. Abuse of Material Witness Statute

The Bush administration has used another technique for holding people -- primarily but not exclusively noncitizens -- in preventive detention. And that is by aggressively and speciously applying the 1984 material witness statute. This law allows the government to detain a witness in a criminal case if it's likely that this person would flee before testifying.

As Nat Hentoff wrote in The Progressive, this statute was "largely intended to prevent members of organized crime from fleeing." But the Bush administration used it to detain about four dozen people whom it viewed as suspects but did not have sufficient evidence to charge with any crime or immigration violation. Some were held for more than three months, according to the Justice Department. "Jailing people who are simply under investigation is a hallmark of an authoritarian regime," District Judge Shira Scheindlin ruled on April 30, 2002, in a case involving Osama Awadallah, a Jordanian student who was here legally but whose phone number was found in one of the 9/11 hijackers' cars. "If the government has probable cause to believe a person has committed a crime, it may arrest that person," Judge Scheindlin said. But misusing the material witness statute poses "the threat of making detention the norm and liberty the exception."


3. Enemy combatants and "extraordinary renditions"

Another mechanism for depriving people -- citizen and noncitizen alike -- of their rights is to label them "enemy combatants."And that's what the Bush administration has been doing. It's held more than six hundred prisoners at Guantánamo Bay, Cuba, as enemy combatants, and it has held others the same way in Iraq and Afghanistan and in secret CIA prisons around the world. Using the ridiculous euphemism of "extraordinary renditions," the United States has seized hundreds of individuals and shipped them off to countries notorious for torture.

In the process the Bush administration has deprived these detainees of their due process rights and denied them protection under the Geneva Conventions. In the Supreme Court's 2006 decision in Hamdan v. Rumsfeld, Justice John Paul Stevens, writing for the majority, ruled that Common Article 3 of the Geneva Conventions applies. That article requires trials by a "regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Common Article 3 also prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," as well as "outrages upon personal dignity, in particular humiliating and degrading treatment." (Similarly, Article 75, Fundamental Guarantees, of the 1977 protocol to the Geneva Conventions states unambiguously: "Persons who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances.")

Essentially, the Bush administration claims the authority to seize any individual anywhere in the world, label that person an enemy combatant, and send him off to some prison in this remote corner or that, there to languish forever.

The Bush administration has used the enemy combatant label not only against foreign nationals but against U.S. citizens, too. The administration held both Yasser Hamdi and José Padilla for more than two years, of ten in solitary confinement, in military brigs, and denied them their due process rights. They were held incommunicado and not charged with any crimes.

In one of its sillier arguments the Bush administration even claimed that it was holding Hamdi, who was picked up on a battlefield in Afghanistan, for his own benefit. The president, the government said in its Supreme Court brief, has "the authority to engage in the time-honored and humanitarian practice of detaining enemy combatants captured in connection with the conflict, as opposed to subjecting such combatants to the more harmful consequences of war"(italics in original).

Padilla, however, wasn't captured on the battlefield like Hamdi. He was collared at O'Hare Airport in Chicago. "By imprisoning Padilla without a hearing of any sort and without producing any evidence against him, the executive branch has taken one of the most drastic steps in our nation's history," writes Barbara Olshansky in America's Disappeared.(The italics in that quotation are hers.)

As it has with much of its overreaching, the Bush administration argued in the Hamdi and Padilla cases that the president's commander-in-chief powers in Article II of the Constitution give him the authority to designate citizens as enemy combatants and deprive them of due process. "You have to recognize that in a situation where there is a war, where the government is on a war footing, that you have to trust the executive," argued Paul Clement in Hamdi. Clement was deputy solicitor general at the time, and subsequently became solicitor general. Astonishingly, under questioning from the justices, Clement claimed that the president had this power to declare U.S. citizens enemy combatants even when there is no war. "The president had that authority on September tenth," Clement told the justices.

The Supreme Court disagreed, even about executive powers during wartime. As it said in the Hamdi decision, "A state of war is not a blank check for the President."

And in June 2006, in Rasul v. Bush, a case brought by Guantánamo detainees, the Supreme Court also ordered the government to give those detainees some due process protections. Nevertheless, the administration has dragged its feet.

As for Hamdi, the United States released and deported him in October 2004. As for Padilla, the Supreme Court decided not to rule on his original case, since they said his lawyers filed it in the wrong district. Then, rather than let the Supreme Court rule on his designation as an enemy combatant and risk repudiation, the Bush administration finally charged him with three crimes -- more than three years after detaining him.

Justice John Paul Stevens, in the original Padilla case, let his views be known on the gravity of the matter. "At stake in the case is nothing less than the essence of a free society," he wrote. "Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber."

4. Watering down the Levi guidelines: A boon for domestic spying

The Church Committee hearings (named after Senator Frank Church of Idaho) in 1974 and 1975 revealed widespread FBI spying on political dissidents. One of the FBI's most notorious counterintelligence programs was called COINTELPRO, which infiltrated and disrupted the Black Panthers and the American Indian Movement, among other groups. In response to the revelations President Gerald Ford had his attorney general, Edward Levi, draw up guidelines to limit such activities in the future. The 1976 Levi guidelines prohibited the FBI from investigating the First Amendment activities of individuals and groups that weren't advocating violence. And, mindful of the role of FBI agents provocateurs in the 1960s, the guidelines outlawed the disruption of groups and the discrediting of individuals engaged in lawful First Amendment activities. Domestic spying could occur only when there was "specific and articulable facts" that indicated criminal activity.

Under the Reagan administration and that of Bush Senior, these guidelines were loosened somewhat. Then came Ashcroft. On May 30, 2002, he threw out the need to demonstrate any connection to criminal activity. Ashcroft's guidelines allow the FBI "to engage in searches and monitoring of chat rooms, bulletin boards, and websites without evidence of criminal wrongdoing," notes the Electronic Privacy Information Center. "Additionally, agents are permitted to visit public places and events to monitor individuals' activities with no predicate of criminal suspicion. These powers are not limited to terrorism investigations." What's more, Ashcroft's guidelines "allow FBI agents to use private-sector databases prospectively in order to predict terrorist acts. These databases may be used without any evidence of criminal activity or suspicious behavior. The FBI can now go on data mining 'fishing trips.'"

And it's not just the FBI. Since 9/11, agents from the campus police all the way up to the National Guard and the Pentagon have gotten into the domestic snooping game. Much of the gathering of domestic intelligence has been done by joint terrorism task forces that bring together state and local law enforcement with the FBI.

A story that MSNBC broke on December 14, 2005, told how the Pentagon had been busy spying on antiwar groups. The Pentagon's own database lists forty-three events in a six-month period alone, dating from November 11, 2004, to May 7, 2005. Pentagon political spying took place in the following states and the District of Columbia: Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Louisiana, Massachusetts, Nebraska, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Texas, Vermont, and Wisconsin. On January 17, 2007, the ACLU revealed that the Pentagon had monitored at least 186 antimilitary protests.

5. Listening in on lawyer-prisoner conversations

Here's one of the violations of our civil liberties that has received little attention: If you're in federal custody you no longer can assume that you have the right to confidential communications with your lawyer.

On October 31, 2001, Ashcroft issued a regulation that allows the Justice Department at its own discretion and authority to eavesdrop on the lawyer-client conversations of anyone in its custody, so long as the attorney general says there is "reasonable suspicion"that the person in custody may use such conversations "to further or facilitate acts of terrorism." Prior to this, the only way prosecutors could eavesdrop on such communications was to demonstrate "probable cause" before a judge that the prisoner was using his discussions with counsel to further a criminal purpose. Under the Ashcroft regulation probable cause is no longer the standard. And Ashcroft unilaterally discarded the obligation of going to a judge. Now the executive branch itself makes the decision as to whether to listen in or not.

How can you possibly defend yourself and plan your legal strategy with your lawyer if the prosecutors are listening in?

"This regulation is an unprecedented frontal assault on the attorney-client privilege, and on the right to counsel and the right of access to the courts guaranteed by the Constitution," Nadine Strossen, president of the ACLU, testified to the Senate Judiciary Committee on December 4, 2001.

© 2007 by Matthew Rothschild. This piece is excerpted from You Have No Rights: Stories of America in an Age of Repression (The New Press, July 4, 2007). Published with the permission of The New Press and available at good book stores everywhere.