In the moments just after the United States suffered its greatest trauma in 60 years, George W. Bush uttered some of the most profound words of his presidency. They were meant to rally and unite Americans and remind the world that U.S. values were unshakable.“Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America,” he said. “These acts shatter steel, but they cannot dent the steel of American resolve.”
Now 10 years on, a growing group of civil libertarians says that the “foundation of America” is on its way to irreparable damage.
“We are becoming a national surveillance society,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project in New York. “We have developed an entrenched emergency mentality that has had an incredibly negative impact on the rule of law.”
A month after the attacks on New York and Washington, Congress passed the USA Patriot Act, a neat acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.”
The bill was a massive 342 pages, and it was found later that hardly anyone in Congress bothered to read it.
Its mandate was to “deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.” Among other things, it loosened rules on surveillance by lowering the standards for warrants, and in the process, critics say, infringed upon freedom of speech and the right to privacy.
Critics also say the bill was likely never necessary in the first place, that existing powers were all that were needed to thwart terrorism, and the legacy of the Patriot Act is a government whose powers have become so enormous they will never likely recede.
“If we ever have another attack, there will be that same drumbeat to expand those powers further,” said Jonathan Turley, a professor of constitutional law at George Washington University. “And the scary aspect is we are already living in an era of unprecedented national security laws.”
Intelligence agencies, the military and police forces have used the powers to fight terrorism to engage in massive spying efforts and data-mining operations that often have nothing to do with the war on terror, said Ms. Shamsi.
“They have targeted innocent Americans without any basis to believe they have been engaged in wrong-doing, but to look for potential patterns of suspicion.”
That avalanche of information can even end up nearly destroying the life of an innocent Canadian.
Sukanya Pillay, a lawyer with the Canadian Civil Rights Association, said there is a need for sharing information about potential terrorist activity — but that intelligence has to be verified and vetted, something that is often missing in the post-9/11 world.
“What has been lost are the safeguards to evaluate the veracity of information and that has had devastating consequences.”
She pointed to the case of Maher Arar, a Canadian citizen and telecommunications engineer, who was taken into custody by U.S. officials during a stopover at John F. Kennedy International Airport on his way back home from holiday in 2002.
Based on information received by U.S. intelligence agents from the RCMP, Mr. Arar was suspected of having links to al-Qaeda. He was held without charge, denied access to a lawyer and eventually deported to Syria, the country of his birth, where he was tortured. After a year, he was returned to Canada.
The information about his supposed terrorist links was later found to be false, something confirmed by the federal commission that looked into Mr. Arar’s ordeal. The RCMP also apologized for its actions.
He was one of four similar cases involving Canadians.
The Patriot Act, however, has not been the only issue of concern to civil libertarians.
There has also been a growth in government power that has allowed for actions that were supposed to be anathema to American notions of fairness.
“What we couldn’t have imagined is that the country would engage in systematic policies that violated human rights, international law and our own Constitution,” said Ms. Shamsi. “It was unthinkable that we would have used torture, targeted killing, extraordinary renditions (as in the case of Mr. Arar), Guantanamo and warrantless wiretapping.”
Ron Paul, who is seeking the Republican nomination, said the Patriot Act has meant the “literal destruction of the fourth amendment” — that part of the Constitution that is supposed to protect Americans against unreasonable searches and seizures by demanding warrants be built on probable cause.
“The Patriot Act has nothing to do with patriotism,” Mr. Paul, a member of the House of Representatives, told Congress this year during a successful vote to extend the act. “They always name it the opposite of what it is. The assumption was we weren’t spending enough money on intelligence even though our agencies were receiving US$40-billion … and now we spend US$80-billion. And the conclusion was that the American people had too much privacy and if we undermined privacy we would be safer. Perfect safety is not the role of government and we have sacrificed our liberty for safety and security.”
However, many Americans look around today and see that there has been no repeat of 9/11 on American soil and do not feel their liberties have been put in jeopardy.
Arch Puddington, director of research for the New York-based human rights group Freedom House, said the country is more open today than it has ever been. He noted the notorious era of McCarthyism in the 1950s was a far greater violation of basic rights — and yet the country survived intact.
“There are some civil libertarians who think we’re in jeopardy of losing our civil rights, but I think Americans in general reject that proposition,” he said. “They don’t think there is an intrusion in their daily lives and the power of the state is not that much more significant than it was on Sept 10, 2001.”
He said the most objectionable policies that emerged in the “war on terror” have been brought to an end: torture, secret prisons and extraordinary renditions.
However, Prof. Turley said, to say that the torture program has ended is to miss the larger point.
“No one would have imagined that the U.S. would create a torture program in the first place,” said Prof. Turley. “Moreover it would have been unimaginable that once the program was disclosed that no one would be prosecuted.”
Early in his term, U.S. President Barack Obama said while torture would no longer be tolerated, anyone who took part in such activities would not face prosecution.
The decision, Prof. Turley said, was in opposition to the Nuremberg principles, which established that those who take part in crimes against humanity during times of war should still be held accountable.
“The election of President Obama was disastrous for human rights,” he said. “The United States put itself in the same category as Serbia when it decided it would not allow the investigation of torture and actively protected officials who were accused of war crimes. For many civil libertarians that was shocking.”
Just after the Patriot Act was passed in the fall of 2001, Prof. Turley wrote that the issues addressed in the legislation had little to do with the dangers posed by 9/11.
The commission that looked into 9/11 said the attacks could have been prevented if existing powers had been used and that the problem was intelligence agencies failed to share information and to act, he noted.
“The supreme irony is that the same agencies that were so negligent ultimately reaped huge benefits in terms of expanded powers and budget.”
Ms. Shamsi of the American Civil Liberties Union noted that this is not the first time in history there has been an attack on civil rights in the aftermath of a crisis. In Canada and the United States, citizens of Japanese origin lost their property and were put into detention camps for the duration of the Second World War. And when the war was over, most everyone agreed there had been a miscarriage of justice.
“With previous wars we knew they would eventually end. There were battle lines and goals were in sight. But the danger we have today is that we are engaged in a conflict that you can’t envision an end to. And with that you have the risk of a permanent displacement of liberties.”
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Source: National Post
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