Fortress America: Are We Safe?

Michael Ratner

I LIVE A few blocks from the World Trade Center.  I saw the explosion in the North Tower and looked on in shock as the second plane flew 200 yards over my head and crashed into the South Tower.

I saw the buildings collapse.  Members of my family barely escaped.  The ruins still smolder like the vast funeral pyre they have become, and all downtown is a smoke-filled memorial to the thousands killed.  For weeks missing-persons posters covered the walls of the city; candles were on every corner.  A young student in my child’s school lost her father; my child’s soccer coach was killed.

We in New York are still in mourning; we are also terrified that an attack will happen again.  We do not want more deaths and want to protect our children.  Some of us are afraid to use the bridges in and out of the city; others fear the subways; some no longer want to work in high buildings; and some families have stored food, bought gas masks and even oxygen.

We want to arrest and punish the terrorists, eliminate the terrorist network and prevent future attacks.  The U.S. government claims that this can be achieved through military attacks abroad and more vigilance at home.

It has announced a war on terrorism, not just metaphorically; this is a real war with bombers, missiles, commandos and ground troops.  It is a war fought on many fronts: financial, legal, political, psychological and diplomatic.

Many have argued that military actions will exacerbate the situation, make the United States more hated in the Muslim world and plant the seeds of future terrorism.[See note 1]

This article will discuss the domestic consequences of the war on terrorism, almost all of which will involve some curtailment of our freedom and constitutional rights.[See note 2]  These include massive arrests of immigrants, the creation of a special new cabinet office of Homeland Defense 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, silencing of dissent, and widespread ethnic and religious profiling of Muslims, Arabic and Asian people.

Why the War at Home?

The claimed necessity for this war at home is problematic.  The proposed legislation and other governmental actions are premised upon 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 it has not been demonstrated that the government failed to stop the attacks because they had insufficient authority.[See note 3]  One would think that the government would investigate their failure; but any real effort at doing so was defeated in Congress.[See note 4]

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 upon 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 despite attempts to create Fortress America.

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 Defense Office; the FBI 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 Defense.  On September 20th President Bush announced the creation of the Homeland Defense Office, charged with gathering intelligence, coordinating anti-terrorism efforts and taking precautions to prevent and respond to terrorism.[See note 5]

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 forty bickering agencies.  Those concerned over 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 CIA 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 surveilled and 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.[See note 6]

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 900 have been arrested.[See note 7]

Many were held for days without access to lawyers or knowledge of the charges against them; many are still in detention.[See note 8]  Few, if any, have been proved 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 such as Saudi Arabia or Pakistan and having expired student visas.[See note 9]  Stories of mistreatment of such detainees are not uncommon.[See note 10]

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 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.”[See note 11]

The accurate term to describe these tactics is torture.  There is resistance to this even from law enforcement officials.  A former FBI chief of counterterrorism said, “that torture goes against every grain in my body. Chances are you are going to get the wrong person and risk damage or killing them.”[See note 12]

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 facing.

The FBI is also currently investigating groups it claims are linked to terrorism—among them pacifist groups like 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.”[See note 13]

Unfortunately, the FBI does not make that distinction.  We are facing not only the roundup of thousands on flimsy suspicions, but an all-out investigation of dissent in the United States.

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.[See note 14]

The current 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.

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.[See note 15]

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 thus certified, an alien could be imprisoned indefinitely with no real opportunity for court challenge.  Until now, such “preventive detention” was believed to be flatly unconstitutional.”[See note 16]

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 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, African National Congress, or civic groups that have ever engaged in any violent activity such as Greenpeace.

An alien who gives medical or humanitarian aid to similar groups, or simply supports their political message in a material way, could be jailed indefinitely.

More Powers to 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.[See note 17]

A few years ago 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.[See note 18]

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 twenty-two year existence, approximately a thousand last year, and has apparently never denied a request.[See note 19]

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.[See note 20]  The FBI will be able to wiretap individuals and organizations without meeting the stringent requirements of the U.S. 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.[See note 21]  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.[See note 22]

Another provision of the new bill makes it a crime for a person to fail to notify the FBI if he 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 fifty years.  It is unlikely to make us more secure; it is certain to make us less free.

Unofficial and Official Censorship

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.”[See note 23]

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 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 Sontag 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.”[See note 24]

Almost anyone who dares examine what might lie behind the hatred felt by many in the Mideast toward America is attacked for those views.[See note 25]  The Daily News, a major New York City newspaper, 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.”[See note 26]

Self-censorship by the media and even liberal organizations is also occurring.  Often this occurs by simply not airing alternative views—one show actually cut off the microphone in mid-sentence of a guest arguing for a legal rather than 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 criticisms of the President.

TV stations have rarely covered the protests against the war and the views of those opposed to the war are demeaned.  A September 30 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 the President.

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.

The President reversed himself within a few days, but whether he is giving Congress a full report is unknown.  In any case 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 press probably in U.S. history and certainly since before World War II.[See note 27]

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 U.S. government 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 that times of hysteria, of war, and of instability are not times to rush to enact new laws that curtail our freedoms and grant more authority to the government and its intelligence and law enforcement agencies.

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.

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Michael Ratner (www.mratner.org) is an international human rights attorney and vice-president at the Center for Constitutional Rights. He teaches at Columbia Law School. This is a longer version of an article that appeared in the November issue of Le Monde Diplomatique.

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from ATC 95 (November/December 2001)