Civil Liberties After 9/11
(February 2002)
Below you'll find:
Introduction
In this issue we look at the state of civil liberties in the United States after the events of 9/11. As we well know, Bush and Co. have used the attacks of 9/11 as an opportunity to turn back the clock on civil liberties for which we have fought for so long.
Nancy Murray, director of the Bill of Rights Education Project of the ACLU of Massachusetts, discusses the Kafkaesque series of attacks on civil liberties of non-citizens: the quick passage of the USA Patriot Act, the refusal to make public a list of the hundreds of detainees, the new regulations keeping foreigners imprisoned even after orders for release due to lack of evidence, and the investigation of thousands of recent immigrants from Middle Eastern countries. She reminds us that "violating rights in times of perceived danger is part of a long American tradition we have usually come to regret."
Jane Rocamora, clinic supervisor for the Harvard Immigration and Refugee Clinic at Greater Boston Legal Services, analyzes the international law issues that arise out of the detention of Afghan prisoners of war at Guantanamo Bay. She urges the international human rights community to stand fast in its opposition to the use of the death penalty by the United States, as well as to maintain pressure on the U.S. to adhere to international standards in the treatment of the detainees.
Massachusetts Chapter member Timothy Muise, a prisoner at the Souza-Baranowski Correctional Center in Shirley, describes new Massachusetts prison regulations giving prison authorities the right to open prisoners' legal correspondence, a move that he thinks has come out of the aftermath of the 9/11 attacks.
Finally, we reprint a letter from our Chapter to the federal Bureau of Prisons, opposing the emergency regulations of October 31, 2001, which permit the government to monitor communications between detainees and their attorneys. The Massachusetts Chapter is part of a post-9/11 coalition that has so far focused on providing "know your rights" speakers to community groups and individual representation to immigrants. We are updating our "Immigration Consequences of Criminal Convictions" pamphlet and are completing new civil disobedience training materials. Please join us in expanding our post-9/11 work to include the critical fight against the abrogation of civil liberties.
Judy Somberg
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Presumed Guilty: Non-citizens Caught in Ashcroft's Dragnet
by Nancy Murray, Director of the Bill of Rights Education Project
of the ACLU of Massachusetts
"Someone must have been spreading lies about Josef K., for without having done anything wrong he was arrested one morning." The opening sentence of Franz Kafka’s 1914 novel The Trial speaks to the experience of growing numbers of non-citizens who reside in the 21st century world according to John Ashcroft.
The "war on terrorism" at home is being fought with such secrecy that few Americans seem aware just how duplicitous the Attorney General was being when he testified on December 6, 2001 before the Senate Judiciary Committee: "Each action taken by the Department of Justice, as well as the war crimes commissions considered by the President and Department of Defense, is carefully drawn to target a narrow class of individuals - terrorists . . . . Our efforts have been crafted carefully to avoid infringing on constitutional rights while saving American lives."
Those efforts by Ashcroft include personally dragooning Members of Congress into supporting 342 pages of legislation they had not even had a chance to read and digest. Without ever demonstrating that federal law enforcement agencies needed a battery of new weapons for the war on terrorism, Congress on October 26, 2001 passed the USA Patriot Act, an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism."
This far-ranging law gives sweeping new powers of detention and surveillance to the Executive branch and law enforcement agencies, and deprives the courts of meaningful judicial oversight to ensure that the new powers are not being abused. It embraces "guilt by association" and permits immigrants to be deported or indefinitely detained for wholly non-violent activity. It establishes an alarmingly broad new crime of "domestic terrorism." It permits investigations based on lawful First Amendment activity if that activity can be tied somehow to intelligence purposes, undermines the privacy protections of the Fourth Amendment by eroding the line between intelligence gathering and gathering evidence for a criminal proceeding, and negates due process procedures guaranteed by the Fifth, Sixth and Fourteenth Amendments, and extended to non-citizens in over a century of US Supreme Court rulings.
In his defense of military tribunals, John Ashcroft has stated that immigrants don’t have constitutional rights. Up until now, however, immigrants have for the most part enjoyed many of the same constitutional rights as citizens, especially in the all-important arena of criminal justice. And on this issue, the public appears somewhat more enlightened than Ashcroft, which is good news for the 20 million residents in the US who are not citizens. On November 25, 2001, 70 percent of respondents to the NPR/Kaiser/Kennedy School Poll on Civil Liberties answered that non-citizens legally resident in the US should have the same legal rights if they are arrested as US citizens arrested for the same thing. Over half thought they should have the same rights if they were charged with being terrorists.
But the bad news is that the government is operating as if those non-citizens picked up in its dragnet are guilty unless proven innocent. And it seems to assume it can evade a public outcry by veiling its proceedings in secrecy.
For four months the Administration has refused to make public a full list of those detained since September 11, forcing the ACLU and other civil rights groups to initiate a lawsuit calling for that information to be made public. On September 21 Chief Immigration Judge Michael Creppy issued an internal rule ordering hearings to be held behind closed doors, and calling on immigration court officials not even to confirm that cases exist.
On January 2, 2002, Rep. John Conyers, Jr., the ranking member of the House Judiciary Committee, condemned the decision of the INS to close the Detroit detention hearing for Rabih Haddad, a prominent pastor in the Muslim community, who was facing deportation "allegedly because of his links to a charitable group linked to terrorism without any foundation in public evidence." Conyers, who had been denied admission to the immigration proceeding, declared that "the treatment of Pastor Haddad over the last several weeks has highlighted everything that is abusive and unconstitutional about our government’s scapegoating of immigrants in the wake of the September 11 terrorist attack . . . . The attack of September 11 should not destroy our Constitution, rather it should strengthen our commitment to it."
Whatever the immigration court decides to do with Rabih Haddad, it may not have the last word. On October 26, the day Congress gave the Executive branch an arsenal of new powers through the USA Patriot Act, the Justice Department issued a regulation stating that foreigners can be kept behind bars even after a federal immigration judge has ordered them released for lack of evidence.
"A lot of things that were on my mind I do not believe in anymore, like the fair trial, the fair speech" stated Osama Elfar, an Egyptian working as an airline mechanic after attending flight school (New York Times, Nov. 25, 2002). He was still being held in detention after being told by the court he could leave the country and then legally return.
One can only imagine what Professor Mazen al-Najjar now thinks of the American justice system. A Palestinian who received his Ph.D in the United States, Professor al-Najjar taught at the University of South Florida, where he helped establish what a federal judge in 1995 called "a reputable and scholarly research center," the Islam Studies Enterprise, and the Islamic Concerns Project, an organization that raised funds for orphans in Palestine. Both organizations were accused of being fronts for Hamas and Islamic Jihad. Despite the fact that an investigation cleared him of ties to terrorism, he was arrested by the local FBI, and detained for more than three and one-half years on secret evidence. After a federal judge in Miami ordered him released on the grounds that the government’s case was "devoid of any direct or indirect evidence" showing why he should be imprisoned, he was finally freed. But in late November 2001 he was re-arrested, and now faces being deported for overstaying a student visa in the early 1980s. The US Court of Appeals for the 11th Circuit has upheld his deportation.
After using presumably valuable law enforcement time locating and questioning 5,000 recent immigrants from Middle Eastern countries, and arresting ten students in San Diego for violating their visas in the "first phase" of a crackdown, the government has announced plans to hunt down 6,000 Arab and Muslim "absconders" from among the 315,000 immigrants who ignored orders to leave the country. What the Attorney General is not prepared to do, is to check the names of those under investigation against gun purchase records, or to back new legislation giving federal agents more power to track guns. Nor does he seem about to launch an investigation of domestic terrorism in the form of the "Army of God" and Clayton Waagner, who confessed to mailing hundreds of anthrax threats to abortion clinics and abortion rights groups late last year.
According to a January 7, 2002 internet article by Frederick Clarkson, an expert on the religious right and author of The Struggle Between Theocracy and Democracy, "If the Justice Department decides to pursue this network with the same zeal with which it has pursued foreign terrorist networks in this country, it could expose a network that spreads broadly from the far-right fringe to right-wing politics. Even, indirectly, to the attorney general himself."
Eighty-two years ago, another Attorney General, A. Mitchell Palmer, rounded up and imprisoned thousands of immigrants believed dangerously radical and deported hundreds without due process. A editorial in The Nation described a fearful United States in which hundreds of aliens were being held without any court appearance or bail, not given the opportunity to mount a defense, not permitted to communicate with their friends or families:
"If any of the persons, whether aliens or not, upon whom the Department of Justice has descended, have violated the law, they should be indicted, tried and punished for their offense . . . . Wholesale arrests and deportations such as we are now witnessing will not breed respect for government . . . . We shall not safeguard liberty by repressing it. The only way to end dangerous discontent . . . is to remove its causes. Unless that is done, those who today are sowing the wind will before long reap the whirlwind." This editorial, published on January 17, 1920, reminds us that violating rights in times of perceived danger is part of a long American tradition we have usually come to regret.
For a briefing paper on the USA PATRIOT Act, or information about a state-wide civil liberties task force being formed by the ACLU of Massachusetts, contact Nancy Murray at (617) 482-3170 x 314.
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International Law Mandates Fair Treatment of the Guantanamo Detainees
by Jane Rocamora, Guild member and Clinic Supervisor for the Harvard Immigration and Refugee Clinic at Greater Boston Legal SErvices. Ms Rocamora has worked with the UN and the Organization for Security and Co-operation in Europe (OSCE) in Rwanda and Kosovo as an international human right lawyer.
One of the worrisome consequences of the armed conflict in Afghanistan is the growing detained population in a prison camp at Guantanamo Bay, Cuba. The daily assertions of the U.S. government, that it is humanely treating these detainees, are insufficient to quell the serious concerns which exist now and those which could develop in the near future. Attention is needed now on behalf of these U.S.-held detainees to ensure that their treatment complies with relevant human rights and humanitarian law standards.
This short article attempts to identify and provide a context for at least a few of the serious, but as yet not widely-discussed issues, raised by the circumstances at Guantanamo Bay.
As an initial matter, the U.S. government has failed to provide accurate information on the number of detainees it intends to transfer to Guantanamo Bay. According to press reports, the facility currently holds 158 individuals, all of whom were transferred from makeshift detention facilities in Afghanistan. With plane loads of additional detainees expected to arrive almost daily, the U.S. has announced that it intends to construct a prison which will allow for the incarceration of up to 2000 persons. However, if the U.S. currently has custody of only another 350 or 400 detainees at Bagram Airbase, north of Kandahar, from where does the U.S. expect to receive an additional 1,400 detainees?1 The U.S. government has not provided an answer to this question, but the differences between a detention facility with 2000 detainees with diverse classifications and one with between 400 and 600 from the armed conflict in Afghanistan are enormous.
A second issue looming ahead concerns the judicial process to which the detainees are entitled. This issue encompasses several significant sub-issues. While there is a debate concerning whether the detainees should be treated as prisoners of war under the Third Geneva Convention, the U.S. government has steadfastly remained vague as to when and in which forum the resolution of that debate will be finally decided. Will the U.S. Department of Defense or the President simply issue a decree that is intended to end the debate? If not, to which of several possible forums2 will the U.S. government submit the question?
Regardless of which classification a detainee receives, all who are held as a result of armed conflict are entitled to a fair judicial process if the U.S. intends to punish them for violating applicable criminal laws.3 Any judicial process which the U.S. decides to set in motion must provide not only the right to defense counsel but also all rights which are guaranteed by international fair trial standards.
The U.S. has yet to reveal whether it intends to prosecute all detainees transferred to Guantanamo Bay, but the indications are that it will prosecute at least some of them. Assuming a detainee population of somewhere between four and six hundred individuals, how swiftly can a judicial system which currently has no bricks and mortar existence and no on-sight personnel be created for such a large number of potential criminal defendants? Even after buildings are constructed and on-site personnel are deployed, the undertaking is mind-boggling. For example, how will defense counsel investigate a criminal charge where evidence and potential witnesses are half-way around the world? How long will the process take and what, if any, compensation is planned in the event that a properly constituted court determines that some have been detained in error?
Those detainees, who are classified as prisoners of war, whom the U.S. declines to prosecute are entitled to repatriation upon the cessation of the hostilities, according to the Third Geneva Convention. Exactly how and to which country will the U.S. repatriate these individuals? For those who are Afghani, will the new, fledgling government in Afghanistan be able to absorb them without creating a source of destabilization? The answers to these questions are not obvious, and statements issued publicly by the U.S. government continue to be vague. Proper registration of hundreds or thousands of detainees and creating a system which respects their rights in a post-conflict context is admittedly a complex and difficult task often undertaken in a highly-charged political environment. In the recent past, the governments of Rwanda, East Timor, and the interim administration in Kosova, as well as a host of other countries, each attempting to transition from war (internal, international or genocidal) to peace, have found the undertaking formidable. Experience with criminal prosecutions (including war crimes) in these countries has taught that compliance with the entire range of international standards related to detainees requires proper political will, large amounts of money, and large numbers of specially-trained personnel. The U.S. government has sufficient resources to meet the latter two requirements. It is therefore capable of providing detainees the humane treatment required by international standards and the trials which meet the minimum requirements. Whether the U.S. will in fact comply with these standards will however ultimately depend on the effectiveness of political pressure placed on the U.S. government from both within and outside of the country.
The gravity of the issues posed by the questions related above is undisputed, and now is the time to pressure the U.S. government. At this juncture, the U.S. is highly susceptible to pressure from the governments of Europe who are its allies with regard to involvement in Afghanistan. Unfortunately, however, political pressure from European governments demanding U.S. compliance with international standards has been late in some areas and has been insufficient in others. While there are recent media reports that the Europeans have finally begun to pressure the U.S. government, they have targeted only two issues: demanding that detainees at Guantanamo Bay be classified as prisoners of war and providing them all rights granted to prisoners of war under the Third Geneva Convention. While these issues are important, there is another, which is equally important, but one on which the Europeans have remained dangerously silent. That issue concerns the use of the death penalty. Their collective failure or refusal to seriously engage the U.S. on principles concerning the death penalty to which they are bound through jurisprudence of the European Court of Human Rights threatens to undermine the legitimacy of the international system purporting to promote and respect human rights.
The list-serves are currently filled with debates among international lawyers concerning which legal principles apply or do not apply to this issue. While lawyers can debate legal theories concerning why and how the abolitionist principle applies to the detainees at Guantanamo Bay, the governments of the European Union must find the political will to force the U.S. government to scrupulously observe it. Unless they do, the international movement promoting respect for human rights will be diminished.
Editor’s note: A petition was just filed in Los Angeles by a group of civil rights organizations and attorneys that challenges the Cuba detentions. The case is called Coalition of Clergy, Lawyers and Professors, et al. v. George Walker Bush, et al. Their Petition for Writ of Habeas Corpus is available online at: http://classes.lls.edu/spring2002/terrorlaw/materials/writ.html and other filings can be found at: http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/.
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1 For example, is the U.S. intending on detaining individuals at Guantanamo Bay from a context other than armed conflict in Afghanistan? Recently, according to the representative for the UN High Commissioner for Human Rights, the U.S. government circumvented the rule of law in Bosnia for purposes of taking several Algerian men into its custody and transferring them to an undisclosed location. No one knows if they are intended to be incarcerated at Guantanamo Bay.
2 A partial list of the kinds of forums would include U.S. military courts; U.S. federal courts; an international ad hoc court. Article 5 of the Third Geneva Convention requires that where the status of a detainee as a prisoner of war is in question, a court must be convened to decide the question. Otherwise stated, the U.S. government cannot simply assert that a detainee is not a prisoner of war.
3 The right to a judicial process is grounded in common Article 3 to the Geneva Conventions. However, any detainees who are granted status as prisoners of war under the Third Geneva Convention should be repatriated to their home country when the hostilities cease, unless they are accused and properly prosecuted for having committed war crimes.
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Chapter Opposes Eavesdropping Rule
Written Comment by the Mass Chapter to a Final Rule of the AG Authorizing the Monitoring of Communication Between Detainees and their Attorneys Without a Warrant
December 22, 2001
To Rules Unit, Office of the General Counsel, Bureau of Prisons:
The Massachusetts Chapter of the National Lawyers opposes the regulations issued on an emergency basis on October 31st that allow for government monitoring of communications between inmates and their attorneys. Founded in 1937, the National Lawyers Guild is a bar association of over 7,000 attorneys, legal workers, and law students that is dedicated to the principle that human rights shall be regarded as more sacred than property interests. Since its inception, the Lawyers Guild has worked on behalf of the most disadvantaged members of our society and to advance human and civil rights.
The right to confidential communication with an attorney is an essential component of the Sixth Amendment right to counsel. As Senator Patrick Leahy stated in a letter to Attorney General John Ashcroft, "[Y]ou and I both know that the rule of law is essential to our American freedoms, and the right to a lawyer with whom one can communicate candidly and effectively is essential to the adversary process by which the rule of law operates in America."
Without benefit of public or congressional input, the Bush administration has eviscerated the Sixth Amendment and threatened the rule of law. In spite of the government's claims to the contrary, the regulations will have a devastating impact on the constitutional rights of a wide array of individuals.
The "taint team" provided for by the regulations - a team of lawyers who will allegedly turn over information to prosecutors only to avoid imminent violence or terrorism -- will not be the procedural safeguard the administration contemplates. The team in many cases will be unable to determine, without consultation with other law enforcement officials, whether a particular communication from an inmate is made in the furtherance of terrorism. Further, the FBI's long history of violating civil liberties will not inspire confidence in defendants and their attorneys that such a team will be scrupulous in honoring the rights of inmates.
Additionally, the regulations provide for monitoring of communications of individuals who have not been convicted of a crime - people held for suspected immigration violations and as material witnesses. Since September 11th, the government has detained more than 1100 people on these grounds. Eavesdropping on the conversations of these individuals will have a chilling effect on their ability to mount a defense. It will also further the process of isolating them, begun when the government refused to release their names, the location of their detention, or the charges against them.
The regulations are unnecessary. The "crime-fraud" exception to the attorney-client privilege holds that no protection exists when a client's communications pertain to ongoing illegal acts. Prior to the enactment of these regulations, when the government had evidence that a suspect was using his or her lawyer to further a criminal plot, it could seek and obtain judicial approval to wiretap lawyer-client conversations.
The disruption of the attorney-client privilege without judicial review represents a fundamental change in the constitutional safeguards that underlie our criminal justice system. Along with preventive detention, military tribunals, and incarceration of material witnesses, these regulations mark a disturbing trend of bypassing judicial and congressional review. As Benjamin Franklin observed, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Sincerely,
Massachusetts Chapter of the National Lawyers Guild
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Opening of Prisoners Privileged Legal Mail
by Timothy Muise, an inmate at the Souza-Baranowski Correctional Center in Sherley, Massachusetts
The September 11th attacks were the most tragic event I have witnessed in my lifetime. I was stunned and shocked as I watched the events unfold. Our country will never be the same. Massachusetts state prisoners donated over $10,000 to relief organizations, an incredible amount compared to the meager funds prisoners have access to. I think it shows that the majority of those men and women who are incarcerated are compassionate human beings who have fallen victim to the evils of poverty, drugs, and various other social plagues.
Civil liberties may well end up being the biggest "victim" in the aftermath of September 11. Racial profiling was a hotbed for many civil libertarians before the attacks and that issue seemed to be well on its way to being addressed in a manner that may well have reduced its occurrence. That seems to be out the window with the attitudes following the tragedy. Now, if you fit the bill, the "authorities" will scoop you up, toss you in a cage, and ask questions later. "Back in the USSR," so to speak. When civil rights are threatened, many times the testing ground is in our prisons. In the wake of the tragedy this has begun to be the case here in the great Commonwealth of Massachusetts.
In October, the Commissioner of Corrections ordered his agents to start enforcing a mail policy that entailed the opening of privileged legal mail outside of the presence of the addressee. He cited the section of the Code of Massachusetts Regulations, 103 CMR 481, that gave him the authority to promulgate mail procedures. Even a layman reading this section of the CMR can see that nowhere does it give the Commissioner the right to violate rights protected in the United States Constitution. The opening of "legal mail" outside the presence of its addressee has long been held as unconstitutional by every branch of our nation’s court system. The Department of Correction took advantage of the aftermath of the attacks to implement this policy under the guise of protecting those of us in its charge. It’s a laughable concept when you see the daily abuses and crimes against humanity that are perpetrated against the prisoners placed in the charge of the "Department of Corruption." The Federal Court of Appeals ruled in the case of Bieregu v. Reno, 59 F.3d 1445 (3rd Cir. 1995), that "prisons pattern and practice of opening properly marked incoming ‘court mail’ which is correspondence between inmate and state or federal judge, clerk’s office or other courthouse address, outside of inmates presence infringes communication protected by the right to free speech; such practice chills protected statement and may inhibit inmates ability to speak, protest, and complain openly, directly, and without reservation to the court." This pretty much says it all. The Commissioner of Corruption is well aware of these protected rights and is just using the events after the attack to circumvent court pleadings, reports of abuse, complaints, and the like that prisoners must voice through the mail system. We are the testing ground. It starts here then moves out to the free world. This concept must be recognized by the citizens who care little of what happens behind prisons walls. The stripping of rights never starts at the top of society, that is a fact.
This may seem inconsequential to most people who are outside of prison walls, but I would like to point out that the first rights stripping moves of Adolph Hitler seemed the same to the people of that time. This country is the model for the free world. To let the tragic events of the 11th of September cause us to backslide would give unwarranted power to the event and the evil monsters who were behind it. We are better than that as a society and stronger as a nation founded on unshakable principles. We must stop the foundation from being laid upon which our protected rights will begin to be stripped unnoticed to most. Racial profiling can’t be tolerated. Prisoner’s protected rights cannot be violated. The Constitution must stand ever-strong, especially in the wake of the tragedy. "That is the United States of America", I was told by my grandfather.
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Editors note:
On November 14, 2001, Massachusetts Correctional Legal Services filed a Complaint in the Suffolk Superior Court on behalf of six named prisoners seeking an order that the Commissioner's decision to suspend the privileged mail regulations violates the constitutional and statutory rights of all prisoners. The name of the case is Cashman v. Commissioner of Correction, SUCV01-05238. In addition to affidavits from prisoners, MCLS also submitted affidavits from the Chief Counsel of the Committee for Public Counsel Services, the President of the Massachusetts Association of Criminal Defense Lawyers, and several other prominent attorneys, explaining how the new mail policy will seriously damage effective legal representation. MCLS also obtained affidavits from several members of the Massachusetts Legislature describing how prisoner mail is critically important to their work in monitoring the Department of Correction. Unfortunately, On December 17, 2001, Judge Cratsley of the Superior Court denied the motion to block enforcement of the Commissioner's new mail policy. MCLS has filed a Petition for Interlocutory Relief with the Single Justice of the Appeal, and argument is scheduled for January 23, 2002.
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