Ten Years Later: We're Less Free

— Julie Hurwitz

THE ABUSE OF government/police power in this country is not a new or recent phenomenon — as evidenced by the government’s court-sanctioned internment of thousands of Japanese Americans during WWII, the red scare of the 1940s-1950s to repress the labor movement and other progressive causes, the use of grand juries and COINTELPRO during the ’60s to repress the civil rights and anti-war movements.

In the post-9/11 era, however, we face new and in many respects more serious challenges regarding the increasingly deteriorating state of civil, constitutional, human and political rights. Of equal or more concern, there seems to be less resistance to the assault on our rights than there was in the past. This can be attributed largely to the climate of fear that has been so effectively used by the government and courts since 9/11 to justify the ever-expanding power of the state repressive agenda.

On September 24, 2010 for example, the FBI raided several homes and offices in the Midwest (Minneapolis/St. Paul, Chicago, North Carolina, western Michigan) and has targeted these political activists for potential federal prosecution.

As noted by writer Ron Jacobs, since the passage of the Patriot Act on October 26, 2001, “… the level of law enforcement intimidation and outright repression has increased quite dramatically. From little things like protesters being forced to protest in so-called free speech zones or face arrest, to the recent approval of the assassination of U.S. citizens by federal death squads, there has been a clear progression away from any concern for protecting civil liberties. Indeed, the concern for civil liberties is usually dismissed by politicians, judges, and other people in power almost as if they were some worthless costume trinkets from grandma’s jewelry box.” (“The FBI Raids in Context,” Counterpunch, Sept. 27, 2010)

Just a few examples from the past few years illustrate this trend. In 2009, the U.S. Supreme Court ruled that victims of state-sanctioned torture at the hands of government agents under the auspices of the highest levels of our government cannot sue or hold accountable those ultimately responsible because of “national security.” (Ashcroft v Iqbal, 2009) That same year, the U.S Court of Appeals held that U.S. citizens who are victims of torture may not use the courts to hold high-ranking government officials accountable for their complicity in the torture because of the “state secrets” that would, again, threaten “national security.” (Arar v. Ashcroft, 585, F3d 559, 2nd Cir, 2009)

In this climate, we have also witnessed the unprecedented expansion of corporate power since 9/11, not least of which is exemplified by two events. First, in the infamous case of Citizens United v. Federal Elections Commission, where the U.S. Supreme Court, taking the myth of “corporate personhood” to an all-time high, all but handed our electoral process over to the private power of capital by lifting all restrictions over the amount of money that private corporations can “donate” to political campaigns. (558 U.S. 08-205, 2010)

This case, in which the right-wing Supreme Court reversed its own precedent (McConnell v. Federal Elections Commission, 540 US 93) — an extremely rare occurrence — has now opened the door to a literal corporate/government merger, whereby private capital’s control over the political process is blatantly transparent.

Continued Detentions of the Innocent

Many had hoped and believed that with the end of the Bush regime would come the end of the lawlessness of our federal government. This has not occurred. Under the Bush administration, we saw the historic expansion of executive power; the “disappearing” of alleged terrorism suspects into CIA secret prisons for years at a time; the outright torture of people with the use of “enhanced interrogation” such as water-boarding and the like (with lawyers manufacturing unprecedented legal justification for it); the creation of prisons designed to be beyond the law and immune from any judicial review or oversight.

Yet even after the Bush regime was forced to retreat, and after the public exposure of his administration’s blatant unlawfulness, over the past two years of the Obama administration we are witnessing government policies not far afield from those of Bush. For example, under Obama’s watch:

• There has not been one criminal prosecution initiated or pursued for the lawless acts of torture (“enhanced interrogation”) committed by members of the Bush regime.

• The U.S. government is still kidnapping, apprehending and detaining indefinitely alleged terrorism suspects.

• The Patriot Act has been made a permanent law on the books, even though it was only supposed to be in effect for five years.

• The Justice Department continues to use “state secrets” as a complete defense to any attempt to hold the government legally accountable for the wholesale violation of people’s constitutional rights.

• The Obama administration continues to expand the government’s warrantless surveillance policies.

• The definition of “terrorism” continues to broaden so as to justify the arrest and unlawful detention of American citizens.

• The government is expanding the use of Communication Management Units (CMUs), first opened in 2006, as an inhumane mechanism for housing prisoners who have been identified as providing, or potentially providing, “material support to terrorism,” applying a definition of “terrorism” that is so broad that it essentially includes any Muslim accused of or ever convicted of any crime anywhere in the United States. (While the total Muslim population of the United States is approximately 6%, the population of CMUs more than 65%.)

These special post-9/11 prison facilities do not allow prisoners any right to contact with the outside world beyond one three-page letter once a week, no family visits, no oversight, no judicial review process, and no right to know why someone has been sent to one of the CMUs. ( See Comments of the Center for Constitutional Rights, June 2, 2010, in response to Notice of Proposed Rulemaking, entitled “Communications Management Units,” www.ccrjustice.org/files/CCR%20comments%20.)

Immigrant Rights Assaulted

While Arizona’s infamous SB 1070 set the pattern, the year 2011 has witnessed record-breaking numbers of immigration-related legislation in states throughout the country. As of June 2011, there have been 1,529 local bills or resolutions introduced by state legislatures, with 150 of them passed and enacted. (“Record Year for Immigration-Related Legislation,” Mariano Castillo, CNN U.S., Aug. 10, 2011)

Many of these bills have been generated and motivated by the anti-immigrant climate fed by the post-9/11 “anti-terrorist” fears. It opens the floodgates to rampant racial profiling and the unconstitutional stops and interrogations of anyone who even looks like he or she may have ethnic origins from another country, even if a third generation U.S. citizen.

SB 1070 requires immigrants to carry their alien registration documents at all times and requires police to question people if there’s any reason to suspect they’re in the United States illegally.  Although a federal appeals court this year has ruled that certain portions of SB 1070 are unconstitutional, the state of Arizona has petitioned the U.S. Supreme Court to hear the case and to allow the state to continue to enforce the law pending a decision from the highest court. Given the political leanings of our current Supreme Court, the outcome is dubious at best.

The law would require police to arrest anyone who cannot prove they entered the country legally when asked. Hundreds of thousands of people could be locked up, and private prison companies stand to make millions. Indeed, the Arizona law was literally written — in conjunction with right-wing Arizona State Senator Russell Pearce and the American Legislative Exchange Council (“ALEC”) — by the Corrections Corporation of America (CCA), the largest private prison company in the country.

ALEC is a little-known but quite powerful highly secretive organization made up of state legislators and the top executives of some of the largest corporations in the United States, including RJ Reynolds, Exxon Mobil and the National Rifle Association, in addition to the CCA.  ( Laura Sullivan, “Prison Economics Help Drive Arizona Immigration Law,” NPR, October 28, 2010)

CCA, along with 50 other members of ALEC, met in December 2009 to draft word-for-word the legislative language for what has now become Arizona’s SB 1070 and the model for the increasing number of other similar state laws. CCA is now actively soliciting communities throughout the country to support the construction and operation of hundreds of private immigrant prisons, promising local jobs and “economic development” in exchange.

In addition to Arizona there are now five states — Alabama, Georgia, Indiana, South Carolina and Utah — that have enacted similar legislation. This trend, with strong “tea party” support, has been actively spearheaded by some of the most powerful corporate interests in this country, who have much to gain from this movement, not least of which is CCA itself.

PATRIOT Act and its Aftermath

Under the shadow of the Patriot Act, we have seen over the past ten years an unprecedented number of “preemptive prosecutions,” resulting in hundreds of people being literally  kidnapped, detained indefinitely under tortuous conditions and ultimately prosecuted for alleged “terrorism” charges supported by the flimsiest of evidence, at most. This, coupled with the Obama administration’s continued reliance on the “state secrets privilege,” has further prevented the victims of such abuse from bringing their torturers to justice, even in a civil court of law.

One dramatic example of invoking this “privilege” is the recently filed case of Fazaga v. FBI, with indisputable direct evidence of a little-known FBI program called “Operation Flex,” in which a FBI undercover informant infiltrated several mosques in Southern California to foment extremist radical Islamist views in order to justify the warrantless surveillance of thousands of Muslim Americans in Southern California. This civil rights lawsuit was brought by the ACLU and CAIR (Council on Arab-Islamic Relations).

In an effort to prevent the victims of this blatant violation of the Fourth Amendment from holding the government accountable, the Obama administration, through the Department of Justice, has sought to invoke the state secrets privilege to have the case dismissed, thereby precluding the victims of post-9/11 governmental abuses from obtaining justice. Ironically, during the Bush regime, then-Senator Obama was one of the loudest voices opposing the use of the “state secrets” privilege.  ( “Want to Sue the FBI for Spying on Your Mosque? Sorry, That’s Secret,” Hamed Aleaziz, Mother Jones, Aug. 8, 2011)

The use of state and local law enforcement agencies to carry out the post-9/11 agenda is not limited to anti-immigration issues. The Department of Homeland Security is spending billions of dollars on private consultants to train local/state police officers throughout the country in “counterterrorism.”

Under a federal program called “Nationwide Suspicious Activity Reporting Initiative,” the federal government is now using local police agencies to act as intelligence gatherers on the ground, after being indoctrinated with vast generalizations and blatant lies about how to recognize a “Muslim terrorist.” (See the story about Sam Khoroba, “How We Train Our Cops to Fear Islam,” Meg Stalcup and Joshua Craze, Washington Monthly, March 21, 2011.)

Emerging Strategies

The ever-vigilant work of such organizations as the Center for Constitutional Rights (CCR), the National Lawyers Guild, the National Conference of Black Lawyers, the ACLU, CAIR and a recently formed national organization, the National Coalition to Protect Civil Freedoms, is continuing to play an important role in challenging and exposing the ways in which the post-9/11 purported “war on terror” has fed the extremist right-wing tea party ideology.

Unfortunately, however, more and more well-meaning people in our country have been effectively kept in the dark and led to believe that their continued freedom is dependent on restricting the civil rights and civil liberties of progressive political activists, Arabs, Muslims and other minority groups.

All the while, the vast majority of Americans continue to believe that their rights are not at risk because, after all, “I am not an Arab or a Muslim,” and “I have done nothing wrong.” But as James Madison wrote: “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

As so aptly put in a statement issued by the National Coalition to Protect Civil Freedoms (Joint Welcome Statement from Aghad Saeed, Chair of the Board of Directors and Raed Jarrar, Executive Director NCPCF, Oct. 25, 2010, http://www.civilfreedoms.org/):

“Although Arabs and Muslims have been the main targets by the government of several unjust legislations passed in the aftermath of 9/11, and many abuses of the criminal justice system and immigration proceedings that followed, there is no doubt that such unjust policies and practices corrupt the system of justice in our country and can eventually affect every segment in our society.

“Although such abuses may start with the persecutions of ‘the other,’ they don’t end there. On this occasion we recall the famous words of pastor Martin Neimoller over 60 years ago:

When the Nazis came for the communists, I remained silent; I was not a communist.
When they came for the social democrats, I remained silent; I was not a social democrat.
When they came for the trade unionists, I did not speak out; I was not a trade unionist.
When they came for the Jews, I remained silent; I was not a Jew.
When they came for me, there was no one left to speak out.”

September/October 2011, ATC 154

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