Tuesday, April 05, 2005
Prof. Erlinder Talk at USF on the Two-year Anniversary of the Incarceration of Dr. Sami al-Arian
February 24, 2005
The “Surveillance Squad” should be ashamed to be at this Meeting,
but we have to assume they are!
Let me begin by noting that it is important for us all to be aware of the new conditions that exist with respect to public meetings, like this one, after September 11. Prior to September 11th, the FBI and other federal investigative organizations could not lawfully send agents to observe public meetings, unless they had evidence that some crime had been, or might be committed. After September 11th, John Ashcroft eliminated that Justice Department regulation that had been in place for 30 years and any time people gather, like we have here tonight, we must assume that what we say, and who is in attendance, may be of interest to Federal investigators or informants in our midst.
So, whoever you are from the Justice Department who is here tonight to see who we are, and what we are saying, we welcome you! We hope you will go back with a full report, and we hope that you eventually learn that the job you are doing here is contrary to your own interests, and the interests of the American people. Please tell your bosses that the American people who are in attendance at this event will not tolerate the justified surveillance of lawful political and social activity!
Perhaps there is still time for you to avoid being put “on the list.”
The second matter I have to mention has to do with giving everyone in the audience fair warning, to give you a chance to save yourselves.
I am speaking to you tonight because I know Dr. Sami Al-Arian and have worked with him since 1997. In 1995, after the federal building was bombed in Oklahoma City, by a “terrorist” [we know who “terrorists” are, don’t we….they were crew cut hair cuts, and are former military guys who live in Buffalo, New York, aren’t they?]. And, of course, we know that, after the Oklahoma City bombing, there was a generalized search and detention of former military guys who lived in Buf….
– well, of course there wasn’t a massive search for white males like Timothy McVeigh.
Instead, it was Muslims, and people of middle eastern origin who were stopped at airports and investigated because based on the assumption that the Oklahoma City bombing was connected to dark, “foreign-looking” people. Shortly after this act of “domestic terrorism,” the Clinton Administration proposed the Anti-terrorism and Effective Death Penalty Act of 1996 [AEDPA], in which the Democrats proposed the use of “secret evidence” could be used to deport people, and that U.S. citizens, and non-citizens alike, who provided “material support” to organizations declared “politically forbidden” by the Secretary of State, could be sent to Federal prison for 10 years.
It was in that context that I first met Dr. Sami al-Arian in 1997, during the formation of the National Coalition to Protect Political Freedom to fight the use of ““secret evidence”” and other threats to civil liberties posed by Clinton’s AEDPA. Because of its history, which I will explain in a moment, the National Lawyer’s Guild understood that “anti-terrorism” was an excuse for political labeling and, along with a number of other groups, called for this coalition to be formed. For more than 5 years, I knew Dr. Sami Al-Arian as one of the most effective organizers and lobbyists that I have ever seen, peacefully and legally lobbying both Republicans and Democrats, and organizing to ensure that civil liberties were protected in the United States and that the ““secret evidence”” provisions of the AEDPA would be eventually repealed.
In his 2000 Campaign, George Bush promised that the “secret evidence” law would be repealed. As a result, Sami and others thought that it was worthwhile supporting him, because of a promise to support the repeal of ““secret evidence”” so that it could not be used, as it had been, in an effort to deport Mazen Al-Najar, Sami’s brother-in-law. Over several years, ““secret evidence”” was found to be unconstitutional in a number of cases and the political organizing was actually going along quite well. On September 10th, bi-partisan legislation was on the Congressional agenda which would have repealed the ““secret evidence” law”, with support from both Republicans and Democrats from all parts of the country, and from George Bush.
“Secret evidence” was on the cusp of being repealed…until, of course, September 11th happened. Not only has ““secret evidence”” NOT been outlawed, it is being used as we speak, to justify the Government not telling Federal courts why American citizens are being held in Saudi Arabia for two years, without any criminal acts having been committed. “secret evidence” is being used as a justification to deport people and to hold people in detention. And, in October 2001, Congress added to the attack on basic fairness by passing the “Patriot” Act. Elements of Clinton’s AEDPA, and the “Patriot” Act are now being used to prosecute Sami al-Arian with electronic eavesdropping evidence that has never before been admissible in American courtrooms.
The point I want to make is that Sami Al-Arian has been involved in fighting for justice in the United States in a peaceful, appropriate, legal way for most of the last ten years and now, the unjust laws he opposed are being used to prosecute him. Linda Moreno, Dr. al Arian’s trial counsel will talk to you more about the details of his case, and my job is to talk about how this case fits into this larger context.
Finally, I feel I also have the obligation to make you aware of other “suspicious activities” in which I have been engaged….just in case you might want to leave tonight’s meeting to protect yourself. I have to admit that during the years I worked with Sami, we often talked on the phone and exchanged e-mails, which means that I’m probably included in 99.9% of Sami’s phone or email exchanges that the Government recorded that are NOT being introduced in the case (because, of course, there is nothing suspicious that could be MADE to seem suspicious in MOST of the 10 years of wiretaps). Also, I’ve also been to see Sami in jail and have corresponded with him by mail. That’s probably going to put me on another list.
In addition to the “Sami list,” about 3 years ago a colleague of mine in the National Lawyer’s Guild and asked if I could please help with her client Sheik Rahman in Minnesota [where I live], who was not getting the religious accommodations that he was entitled to and the Federal medical facility. I couldn’t take the case and my colleague Lynn Stewart came to Minnesota on her own. Now, as you know, just last week Lynne Stewart became the first lawyer in American history to be convicted for having a held press conference on behalf of her client, in which she openly announced information to the world. So, of course, the fact that she and I have been colleagues for a long time, means that I’m probably on some other list.
Of course, it is important for you to know that I might be on “lists,” so that you can protect yourself by not associating with me and leaving the meeting while you still can. But, I want to tell you why it’s important for people like me, a lawyer and law professor – a husband, father and homeowner – and a “patriotic” American to be on these lists.
“Subversives” and Supporters of “Terrorism”: Its all the same.
In 1954, the Attorney General of the United States, Herbert Brownell [the Ashcroft of that day] stood before the American Bar Association and declared that the National Lawyer’s Guild was the “legal bulwark of the Communist Party” and was a “subversive organization.” The message was that anyone who associated with the National Lawyers Guild or its members would be suspect. But, although it took 10 years, the Justice Department eventually had to admit that the Lawyers Guild was not a subversive organization in Federal Court.
As it happens, I am a past national president of the National Lawyer’s Guild who was fortunate enough to be 1993, almost exactly 50 years after the NLG was formally placed on the “subversive” list. So, I can say to you that I’m a former president, of the only lawyers’ organization in the United States that has been found NOT to be subversive in Federal Court. Apparently, the rest are still suspect.
With a little “luck,” being elected president of the National Lawyers Guild by the professional colleagues I respect most put me on yet another list.
I give you that brief history to clearly establish that this not the first time that the political leader of this country have “labeled” as those who are beyond normal considerations, for their own political reasons. Some of those who have been considered “beyond the pale” include “seditionists and aliens” in the 1790’s; “abolitionists” in the 1800’s; “anarchists” at the turn of the 20th Century; in 1914 it was “Germans” and “Japs” in 1945; from the 1920’s to the 1970’s it was “communists” and “subversives”; during the Nixon era it was Nixons’ “enemies”. Our country has a history of finding and demonizing the politically vulnerable at a time when it is useful for there to be an enemy, when it is useful for those in power to claim more power by telling Americans that their leaders need more power to deal with the threat. On my law school door, there is a quotation that I will repeat in paraphrase:
But of course the ordinary people don’t want war, but it’s not up to them, it is up to their leaders. First you tell the people they’re under threat. Then you accuse the pacifists of being disloyal. And then you can do anything you want. It’s always been that way.
This is the paraphrase of a quote from Herman Goering at the Nuremburg War Crime tribunals of 1946. The quote is, of course, a reprise of Machiavelli. It is an old story that we are seeing coming out of Washington. The “war on terrorism” and the identification of an “enemy” as a justification for seizing more power is not new phenomenon. Each time it occurs, it has particular characteristics, and it is dangerous and it is obscene… but it is not new. The question it presents, however, is whether the American people can turn back this most recent threat to democracy and civil liberties as they have in the past. The outcome is never certain.
Its Déjà vu all over again. ---- Yogi Berra
Let me read another quote to you, to help put the “war against terrorism” [which is in reality a “war against civil liberties”] and the al-Arian case in a larger context. Think with me about where the quote came from, who said them, and at what time in history?
We are currently in the throes of another national seizure of paranoia, resembling the hysteria that surrounded the Alien Sedition Acts, the Palmer raids, or the McCarthy Era. Those who register dissent, or who petition their government for redress, are subjected to scrutiny by Grand Juries (in Tampa), by the FBI (In Tampa and elsewhere), or even the military. Their associates are interrogated. (Talk to the people in the Muslim community about why it’s so hard to support Sami these days. Their doors are being knocked on. They feel this in a way that those of us who are not Muslim don’t, and they’re afraid.) Their homes are bugged, and their telephones are wiretapped. They’re befriended by government informers, their patriotism is questioned, It’s not an exaggeration to talk in terms of hundreds of thousands of dossiers.
This sounds like it could have been written yesterday…or this morning.
Actually, this description of “a nation in the throes of paranoia” is taken from a 1972 Supreme Court opinion by William O. Douglas, in a case called The United States versus the United State District Court.
The “Imperial” Mr. Nixon and the “Enemies of Empire.”
Think about the name of the case for just a minute…for those who aren’t lawyers, it might not seem significant but ….what can it mean to have the United States Government bringing a lawsuit against the a Federal district court…actually against a judge of that court? Why would the U.S. government sue a Federal judge, and why would language like that I just read come from that opinion? The background of the case provides a lesson for today, and a connection with the case against Samil al-Arian.
Some of us of middle years remember that, in the 1960s and 70s, people opposed to the Vietnam War were called “communists” and “enemies” by the Nixon administration. In Michigan, a group white working-class anti-war activists, called the “White Panthers”, were accused of conspiring to blow up a military building at the University of Michigan campus. In case after case during that period, defense lawyers would file motions demanding that the prosecution release records of warrantless electronic surveillance that everyone knew was going on, but the routine answer from the Justice Department would be, “There isn’t any.”
But this time, the answer was different. This time, U.S. Attorney in Detroit stood up and read a prepared statement from John Mitchell, the Attorney General of the United States under Nixon, and the Ashcroft of his day. It said, in summary:
Because Richard Nixon is the defender of the Free World, because he is the Commander-in-Chief and is responsible for the safety of the nation, President Richard Nixon has the inherent presidential power to engage in electronic surveillance, directed toward anyone that he chooses, because it is up to Nixon, alone, to decide who the enemies of the country are, and not.
This prepared statement, coming from On High, was an intentional attempt by the Nixon Administration to claim the power of an Imperial Presidency during times of war and national threat. This is not unlike that claim in our own times that George Bush need not follow international or domestic law in the treatment of prisoners; that he can imprison “enemy combatants” at will, even if they are American citizens living in the U.S. AND that illegal wiretapping against “terrorism-related” can be used in criminal prosecutions.
After listing to the Justice Department argument, Judge Damon Keith, a recently appointed African-American judge from Detroit went back into his chambers to think about the President’s claim. He came back out about 15 minutes later, with a copy of the Constitution and Bill of Rights in hand and announced in open court:
But Mr. U.S. Attorney, I’ve gone into my chambers, and I’ve read the 4th Amendment, and I don’t see anywhere that it doesn’t apply to Mr. Richard Nixon. You cannot use that evidence. This case is dismissed!
This case is dismissed? How dare this lowly Federal judge question the power of the Imperial President? Nixon the Emperor wanted to bring that case - and John Mitchell said it was fine - so they sued Damon Keith, the Federal judge, to force him to obey Nixon’s view of the law….that the limitation on government power in the Bill of Rights did not apply to the President.
As the case worked its way up to the Supreme Court, the attorney who took over the case on appeal was a National Lawyers Guild member, and a personal hero of mine, Prof. Arthur Kinoy of Rutgers University (who just passed away a couple of years ago). According to Arthur, several months after the oral argument, in the days before emails and faxes, he got a call from the Supreme Court staff with the news, “Well, Mr. Kinoy, next Monday, they’re going to be issuing an opinion. You’ve got to come down and hear the opinion, it is 8-0.”
Arthur said he was shocked and depressed, “Oh My God, what happened?” He was initially dismayed because it was during period when the Warren Court had been replaced by the “Nixon Court” of Chief Justice Warren Burger. William Rehnquist had just been appointed by Nixon. Arthur, like a lot of other people, was concerned that the “judical fix” was in, and this for Imperial Power that was going to succeed…“Oh My God, eight to nothing, didn’t anybody have anything good to say about the 4th Amendment? And why only 8?”
It opinion was 8-0 because one justice couldn’t take part in the opinion, because he had helped draft the argument that Richard Nixon was advancing when he had been in the Justice Department. Justice Rehnquist recused himself, as he should have, but the 8 other justices ruled that neither Nixon, nor any president, had the unrestricted power to engage in electronic eavesdropping of his “enemies” and that legal search warrants, based on probable cause that a crime has been committed were the only way to bring evidence of electronic eavesdropping into a criminal trial.
How Richard Nixon’s “Imperial Project” Saved Democracy
The ground-breaking Supreme Court opinion of U.S. v. District Court was announced on a Monday morning in June of 1972. On that same Monday morning, the back pages of the Washington Post reported in a small story that almost no one noticed:
“Last night, the headquarters of the Democratic Party at the Watergate Apartment Complex were broken into, for some reason, by persons unknown.”
No one knew on that Monday morning in June that, had the U.S. v. U.S. District Court gone the other way, and an opinion had been announced on that morning that permitted the President to carry out electronic surveillance against his “enemies,” the plumbers would never have had to go into the Watergate Democratic Headquarters to remove the “bugs” because electronic surveillance of Nixon’s “enemies,” the Democratic Party that was opposed to his war policies, would have been completely legal. Had the case gone a different way, and the “plumbers had not been forced to take out the “bugs” the night before the U.S. v. U.S. District Court opinion was announced, there wouldn’t have been a Watergate “scandal” at all. There would have been no Woodward and Bernstein; no “deep throat;” no John Dean; and, there would have been no post-Watergate investigation of government abuses, and no Nixon impeachment and resignation.
It was a result of the Watergate disclosures that we subsequently learned, AFTER Nixon was re-elected in a landslide in 1972 , that Nixon was planning Concentration Camps for his “enemies”, too; that the FBI and CIA were infiltrating and subverting legal organizations through COINTELPRO, the INS was being used to harass Nixon’s opponents; Martin Luther King was the target of disinformation and dirty tricks. At the time that Justice Douglas wrote about the “thousands of files” and the “national paranoia” that was public knowledge in early 1972, he could not possibly have imagined what we found out later. These disclosures and the curative measures adopted in the 1970’s in reaction to the abuses government power carried out by Nixon would simply NOT have occurred, if U.S. v. U.S. District Court had not firmly established that Richard Nixon did NOT have the Imperial Power he claimed.
As a result of this 1972 Supreme Court Opinion the Freedom of Information Act was strengthened. There were limitations on domestic CIA spying. It used to be that there were limitations on the sharing of information between Federal Agencies, because we found out through the Church Commission investigations, in ‘75 and ‘76, that the Internal Revenue Service and all sorts of other governmental agencies were being used by the Nixon administration to gather information about us. There were also Justice Department guidelines outlawing FBI surveillance of meetings like this. Those have been removed since 9-11. It’s not an exaggeration to say that the Imperial Presidency that was rejected at that time, when the U.S. versus U.S. District Court decision, which led to a new level of transparency and to things that we have come to expect as part of our Democracy, is systematically being dismantled. And, the way it is being dismantled is directly related to Sami’s case.
Within the language of the Opinion of the Court in U.S. v. U.S. District Court, the seeds of our current situation were also planted, because there was one line in the case that said it was possible that the absolute power Nixon was claiming might be valid in the case of “foreign intelligence surveillance”….tracking foreign spies in our midst. This narrow exception has broadened into a completely new doctrine of constitutionally unlimited Presidential power that is being advance by the Bush Administration in the post 9-11 legal world.
The “Patriot” Act legalizes the abuses that Watergate exposed
Between 1972 and 1976, the Watergate disclosures and the Church Commission made clear the extent of the misconduct conducted in the name of “national security” with which we are all familiar. But, in 1978, because of the narrow exception that existed in the language of the U.S. v. U.S. District Court Opinion, Congress passed the “Foreign Intelligence Surveillance Act” that created a secret court, appointed by the Chief Justice for the sole purpose of issuing “foreign surveillance warrants” to wiretap or search individuals.
These FISA courts began issuing warrants not based on suspicion of criminal activity, but whether someone was an “agent of a foreign power.” Between 1978 and the present, this “secret court” has issued some 11,000 warrants without turning one down, as far as anyone knows, since there is no public record of the proceedings an only a periodic report to Congress. But, prior to October 2001 NONE of the evidence found as a result of these FISA searches could be used in criminal prosecutions, because to do so would violate the plain instruction of the Supreme Court to Richard Nixon in 1972.
However, this all changed when the Patriot Act was passed because one provision of the 342 page bill that Congress did not read or fully discuss before it passed, the power of the secret FISA Courts was expanded to issue warrants not just for agents of foreign powers, but for any investigation in which some “foreign intelligence” purpose could be alleged in some way. And, unlike the original FISA warrants, the Patriot Act FISA warrants don’t have to be requested by the top levels of the Justice Department and any local agent-in-charge can now go to the FISA Court.
But, even more importantly, the Patriot Act allows the proceeds of the new FISA warrants to be used in criminal prosecutions, which is exactly what the Supreme Court said Nixon could NOT do, in prosecuting domestic crimes in United States v. U.S. District Court. Because of this change in the use of FISA evidence permitted by the Patriot Act, it became possible to indict and prosecute Sami Al-Arian. We now know that, even though there was no evidence that Sami was involved in any criminal activity to support a traditional warrant, he had been subject to wire-taps and surveillance under FISA warrants for almost 10 years….because he was suspected of being an “agent of a foreign power.”
After the passage of the Patriot Act, John Ashcroft’s Justice Department used information gathered during those 10 years to construct an indictment based entirely on evidence that was not legal to use before the Patriot Act was passed. Even though U.S. v. U.S. District Court made clear that it was illegal to use such information in criminal proceedings at the time the surveillance occurred, they decided they could use that same information to prosecute Sami after the Patriot Act went into effect.
Just what IS “terrorism,” anyway?
Now, lets talk about who a domestic “terrorist” is, under the law. As of October 2001, when the “Patiot” Act became effective, “terrorism” came to be defined as:
“…. (1) acts dangerous to human life, that are (2) in violation of criminal laws, (3) that appear to be intended to influence government.”
Jaywalking, for example, may be “dangerous to life” and is certainly a “violation of law” – taken literally, according to the Patriot Act, “jaywalking with the intent to change the law” is a “terrorist” act. This means that if you go to Seattle to demonstrate against the WTO in an attempt to change government policy, and it turns out that some of people around you begin smashing windows…you would find yourself in a group that is committing a crime…that may be “dangerous to human life” if someone gets cut, as a result, you become part of the ”terrorism-related” activities, and you are a “terrorist,” too.
This is same theory of liability that is being proposed in the case against Sami al-Arian. But we also know that this theory about holding people liable for the acts of others in a very distant way isn’t limited to people who are Palestinian, or people who are Muslim. Lynne Stewart is a grandmother who comes from an “anglo-christian” heritage. But she took the position that, even though her client was convicted of a crime called terrorism, Sheik Rahman, like other detainees, was entitled to be represented in a way that lawyers typically represent people in prison.
But, because there is a “special” set of procedures for those charged or convicted of “terrorist- related” offenses, the things that she would normally do to represent her client were converted into Federal felonies. And she’s the first lawyer that has ever been convicted of Federal crimes in the United States for having held a press conference about her client’s views…she did not say “the Sheik’s followers should do this, should do that” – she did say that “the Sheik’s position is this.”
If Lynne Stewart had done exactly that same thing for any other kind of defendant in any other category of crime, it would be exactly what our profession requires of us to do…ot make certain that those who are shut away in detention facilities are not shut out to the world and to maintain communication between them and their families and them and their supporters. Not by suggesting that anyone does crime, of course, but by keeping them in touch with the world.
Because her client was convicted of this “special” category of criminal offenses, Lynn Steward was to sign special promises, administrative promises [not laws passed by Congress OR Orders issues by the Court] which are agreements with the Bureau of Prisons. In past times, if someone violated the Bureau of Prison regulations, they would be admonished, or might even lose their privileges of going into the prison. It is possible that they could also be held in contempt of Court, if a Judge’s Order was involved but being charged and convicted of a Federal felony? - No. This is new.
The “politics” of defining “international terrorism.”
And, it is not just Lynne Stewart, it’s not just Sami, and it’s not just the domestic side of this that’s the problem. Bill Clinton and the Democrats proposed and passed the Anti-terrorism and Effective Death Penalty Act of 1996 that I mentioned earlier. The AEDPA not only created the ““secret evidence”” provisions I mentioned earlier, but it also created secret courts for deportation [that haven’t met yet]. It is the Democrats who established the principle that “secret courts” would be able to take ““secret evidence”” in “secret proceedings” that no one would ever know about, and people would “disappear” in those proceedings. The Democrats also defined in the AEDPA what a “foreign terrorist” organization is, and created federal felony crimes for Americans who provide “material support for terrorism.”
A Foreign Terrorist Organization [FTO] is defined as:
“…(1) a foreign organization; that is (2) nongovernmental; and, that (3) uses violence or the threat of violence to accomplish its objective…”
Now let’s think about that for a moment…do you know of any government in the world that does not use violence or the threat of violence to accomplish its objective? There isn’t one, because the monopoly on the use of violence is what determines the state. But, ONLY a non-governmental organization can be “terrorist” by definition. This means that Israel or the former South Africa, for example, can’t be “terrorist” no matter how much violence they use to accomplish their objectives, according to that definition. But there’s an additional part of the definition in the AEDPA.
Even if a non-governmental organization engages in violence or the threat of violence to accomplish its objectives, it might NOT be a “terrorist organization” because it is up to the Secretary of State to decide whether those tactics are being used in support of U.S. foreign policy, or not. The ONLY way that an organization can become a “terrorist” is if the Secretary of State thinks it is using violence in a way that is contrary to US policy interests…and those can change from day to day, year to year, and administration to administration. And if even the American citizens in the audience were to send donations, or other kinds of “material support” to an orphanage “linked to” one of the Secretary of State’s “forbidden” organizations, you could find yourself facing 10 years in Federal prison, because you would have been providing “material support” for a terrorist organization…even if the organizations is removed from the list next year.
Do you see how the creation of emotionally laden categories leads to the kinds of abuses that we saw during the McCarthy years? When we use the word “terrorism,” OR “subversive,” OR “communist” to create a category beyond the norm that can be applied without requiring us to us to stop and to ask: “But what does the definition mean, anyway?” -- we inevitably re-create the guilt by association that McCarthy created and that Nixon applied to his “enemies.”
To give you an idea of the breadth of this “alternative legal system” with legal rules that apply ONLY to categories like “terrorism” or “terrorism-related” crimes, or “terrorism-linked” suspects that can be treated differently than the norm, let’s consider some examples of this “terrorism-related” legal system --not governed by the Constitution or International Law.
For example, suspected “enemy combatants”, a term that has NO legally defined meaning, and is imposed unilaterally by Bush functionaries, is being used to detain American citizens today, without access to council or legal process. A U.S. citizen named Hamdi was detained that way and has recently been released after the Supreme Court began to examine this question. Another citizen named Padilla is still being held without charges in a military prison in South Carolina. Another citizen, born in Texas, Abu Ali, who was born in Texas and was studying in Medina two years ago and was picked up by the Saudi government, at the order of the Bush Administration, was held incommunicado for the last two years. Just one day ago, the U.S. government went into Federal court and justified this detention by using ““secret evidence”” and making “secret legal arguments” that makes “open” court proceedings a joke. But you see, this American citizen is a Muslim, who was studying at Medina, so the normal rules don’t apply to him.
“Unlawful combatants” is another term that has no clear legal definition and we know that people with THIS label are being held in U.S. facilities at Bagram, Afghanistan, at Abu Ghraib, and at Guantanamo, without access to council, meaningful legal process. The CIA has admitted that at least 26 human beings that the Bush Administration calls “unlawful combatants” have been murdered by U.S. forces while in custody. Those who are still alive are being shuttled to countries where they can’t be found, and their detentiona can’t be challenged.
Even though the Supreme Court said they were entitled to lawyers and due process proceedings to challenge their confinement, they still are not able to see their lawyers and the “hearings” they are getting are hearings in front of military officers where they are being represented by military lawyers. And, of course, the ultimate commander of all U.S. military is George Bush. So, “unlawful combatants” as designated by Emperor Bush are being detained as long as the Emperor desires, and their only recourse is to proceedings in which the judge, the prosecutor, the jury and everything taking place is within the control of the Executive Branch that George Bush controls. It’s not a trial. It’s not an open proceeding.
Investigative targets, citizens or not, are being picked up on “material witness” warrants and are being held incommunicado for months, not because they’re suspected of being involved in a crime, but because they’re suspected of knowing something that the government wants to know. This is what happened to Muhamad Warsame, a Somali-Canadian citizen living with his American wife in Minneapolis who was arrested on a material witness warrant and held incommunicado for almost a year. He was taken to New York because the F.B.I. thought he had information to assist them in prosecuting Zacharias Moussaoui, the supposed “missing” 9-11 perpetrator who attended Warsame’s Mosque for a short time in Minnesota. When it turned out that he would not testify as they wanted him to the Justice Dept. dropped the “material witness” warrant and made good on the threat of what they would do to him if he did not give them the information he wanted…he is now facing federal charges of “material support…for terrorism.”
In “terrorism-related” prosecutions, there IS no attorney-client privilege, by decree of John Ashcroft and the imposition of special administrative measures [SAMs] that you know about from the Lynne Stewart case. According to the Ashcroft declaration, if he thinks that a case is “terrorism-related” lawyers talking to their clients are going to be bugged. When Linda Moreno and I went out to see Sami today, we were VERY careful…and had to communicate any sensitive conversations in writing and did a little “soft shoe” because we wanted to make sure that we were entertaining the folks that were listening. Because we couldn’t be certain that we were NOT being recorded, just like none of us attending this meeting can be certain that we are not being recorded now.
The secret FISA courts used to be limited to foreign intelligence, the results of which couldn’t be used in criminal prosecutions. Now foreign intelligence just has to be a related issue and if they find something, it can be used in criminal proceedings even though it doesn’t meet the 4th Amendment, the test for the normal issue of warrants. Which means that there is no reason for legal representation, because there’s nothing to argue about.
The crime of “material support” for a “foreign terrorist organization” terrorism is defined so broadly that even somebody providing legal advice might be interpreted as providing “material support” if someone the government suspects consults with a lawyer about how to stay within the law. And, if someone gets a “national security letter” which is formal request from the FBI or Justice for information, but is not issued by a judge, revealing the receipt of that letter could, itself, be a crime…since it is against the law to let anyone know you received such a letter, with no clear exception for consulting with lawyers.
The use of “secret evidence”, secret court proceedings we have already discussed. But, now we have the first “secret” Supreme Court case. MKB versus Warden arose in the southern district of Florida and is being raised by a deportee, whose name we don’t know, in a proceedings that was a complete mystery until a mention of the case accidentally turned up on a Court website. There was a sealed case at the trial level, a sealed case at the appellate level and now a sealed case in the Supreme Court in which the Supreme Court’s going to be deciding a case that none of us can know about, because it’s a “terrorism-related” secret immigration case.
The Bush Administration has also cut-off the flow of information to Congress and the American people about WHAT they are doing. They reversed the Freedom of Information Act guidelines that were set up in response to what we found out with Watergate. There is now a presumption in favor of not releasing information, that there’s a limitation on presidential documents about what happened in the First Gulf War, even though Congress has said that those should be released. George Bush has said, “No, you can’t see Dad’s papers.” So, neither Congress nor the American people can see “Dad’s” papers.
The Bush Administration has refused to publicly identify thousands of detainees who were swept up after 9-11 occurred, or to allow them to have lawyers, or for the press and public to find out who they are. No one knows. We’ve heard that a thousand are still in detention although most of the rest have been released, but nobody knows. And immigration proceedings, themselves, are closed to the press and to the public pursuant to a decree from the head of Bush’s Immigration Service. If it is a “terrorism-related” case, according to the Administration, the conduct of the case is secret and no one can know what the immigration courts are doing.
And, there are proposals to further expand executive branch tools in the name of National Security. Things that we’ve heard about, but that have not been formally proposed yet include: stripping natural born Americans of their citizenship, if they are found to be supportive of one of these “terrorist-related” organizations. This means that we ALL have the chance, according to the Bush administration, the great privilege of becoming “Palestinian,” persons declared “stateless persons,” even if you were BORN in the land were you live. The idea that someone in this Administration could think that they could do that – Amazing!
The prosecution of Sami al Arian, no less than that of Lynn Stewart, is intended to serve notice that there are some ideas and some people that you can associate with, only at your peril. And, by creating this whole web of rules that applies specially to “terrorist-connected”, “terrorist-inspired”, “terrorist-linked” and “terrorist-related” investigations, a completely new “terrorism legal system” is being created. We are witnessing the use of new sets of investigative principles; new kinds of previously outlawed governmental powers; new kinds of secret trials and new proceedings in conventional trials, including a new set of limitations on the right to lawyers. An entire new legal regime is being established that will be used to prosecute you, if you are one of those that the government decides is involved in “terrorist- related” activities.
And history shows, once established, these principles can easily extend to all [as Lynne Stewart’s case illustrates]. This old, sad story is reflected in the lament of the German Protestant Pastor Niemoller, before he was killed for his opposition to the Nazi regime:
First they came for the communists and I wasn’t a communist
-- so didn’t speak out…..
Then they came for the trade unionists, and I wasn’t one
-- so I didn’t speak out….
They came for the Catholics….for Jews….for Gypsies…for Gays
--- and I didn’t speak out….
Then they came for ME….and there was no one LEFT to speak out.
During the McCarthy Era, if a person was thought of as being “subversive” or “communist”, or who even associated with a “communist” organizations, all sorts of special rules applied which limited their role in society and attacked their civil liberties in many ways large and small. People labeled “subversive” or “communist” couldn’t be in leadership of labor unions. They had to inform on each other, or be held in contempt of Congress and sent to prison like the Hollywood 10. People like Julius and Ethyl Rosenberg were executed, not because they actually passed information to the Soviets, but because they were seen as being involved in the vast Communist conspiracy. In many ways, Sami’s case – which fortunately does not include the death penalty, at least at this point – can be seen as a “Rosenberg case” for the 21st Century.
What can we do, is there any hope for the future?
I don’t want my comments to be completely bleak, there are some reasons for optimism and we have allies in places we might not expect. Because this isn’t a partisan issue, this is a question about the structure of government and maintenance of Democracy at a time when Government has become more powerful than we could ever have imagined at the time the Bill of Rights was created. Former Republican House Leaders, Bob Barr and Dick Armey are consulting with the ACLU because of their concern about the Bush Administration seizure of power. William Safire has actually used the word “fascist” in the New York Times to describe some of the Bush policies.
Another very influential Republican named Grover Norquist who is a rock-ribbed tax protestor , with whom I disagree about almost everything else, explained the concept to his Republican friends at the Bill of Rights Defense Committee National Conference this way:
“…if you think it’s so great to have John Ashcroft [or Gonzales] with these powers, how would you feel if it was Janet Reno?”
--- the eyes of the Republicans in the audience got very big, and they became very, very quiet.
Anyone who understands that Democracy, itself, rests on adherence to the rule of law can recognize that the conviction of Lynne Stewart, and the prosecution of Sami Al-Arian, are much more than an aberration of justice in just one or two cases. They are opening battles in a long-term struggle to reestablish the balance of power in our governmental system. An unrestrained executive, whether in the hands of Republicans or Democrats presents the greatest danger that any Democracy can face, and patriotic, thoughtful, moral Americans ignore that danger to themselves and to future generations at their own peril.
In addition there are some political and legal brightspots. More than 350 “grass-roots” Bill of Rights Defense Committees have sprung up around the country and have secured support from local government in defending the Bill of Rights. Also, there will be a big struggle over the “sunset provisions” of the Patiot Act which permit a few of the lesser electronic surveillance powers lapse at the end of 2005, if we organize to prevent their re-enactment. And, there have been some positive judicial opinions, such as the Supreme Court cases addressing getting lawyers into Guantanamo and to military prisons and applying as yet undefined “due process” requirements to military tribunals. Some lower court opinions have also been encouraging.
Coming “full-circle” with the Hon. Damon Keith
There also has been at least one very clear and constant “judicial brightspot” that is reflected in the language of an opinion by a Federal appeals court judge declaring Bush’s “secret immigrations proceedings” to be unconstitutional, because, as he said in an Opinion issued just last year:
“Democracy dies behind closed doors.”
The Judge that declared Emperor George Bush’s “secret immigration proceedings” unconstitutional is Damon Keith, who now sits on the Federal appeals court for Detroit. He is the same judge that, early in his career, caused the downfall of the Nixon administration when he rejected an earlier claim of Imperial Presidential power. Judge Damon Keith was the “U.S. District Court” in U.S. v. U.S. District Court, who stood in the way of another President intent on seizing Imperial power, and he is doing so again. But we need new Damon Keith’s, and many more of them….and many more ordinary American people who understand that what is at stake for all of us is preventing our still “young” Republic from going the way of the Roman and first French republics that inexorably fell into Empire….it is plain to see from current events how such a thing could happen.
The challenge for all of us is to bring to an end the most recent attempt to establish an Imperial Presidency, and to make clear that both the Constitution AND International Law apply to George Bush, just as they did to Richard Nixon. The lesson from history is clear, and I’ll leave you with another quote:
In the end, life and liberty can be as much in danger from illegal methods used to convict those thought to be [terrorists] as from the actual [terrorists] themselves.
The author of these words was Chief Justice Earl Warren in another Supreme Court case from 1959. He describes the danger that we are all facing, and Sami’s case is part of the danger. But, it is also part of the struggle to fight back and I am so happy to see the fightback going on in Tampa.
Thanks.
