Attack on the Founding Fathers' Inheritance
The Basic Values of American Society Fall by the Wayside in the Battle against Terrorism
By Martin Kilian
[This article originally published in the Swiss weekly Weltwoche 47/01 is translated from the German on the World Wide Web, www.weltwoche.de.]
"Why should we worry since this only involves the constitution?", so Democratic representative David Obey reacted to the passing of the American anti-terrorism law in Congress. However shock was hidden behind Obey's sarcasm. In a night-and-fog campaign, the White House pushed through new laws before most congresspersons had even read the proposals. The legal work was explosive. Appealing to the terrorist attacks in New York and Washington, the Bush administration under the leadership of Attorney General John Ashcroft pursues a rabid rollback of American civil rights and an astonishing expansion of executive power at the expense of Congress and the courts.
The procedures around the anti-terrorism package baptized with the Orwellian name USA-Patriot were hardly public when President Bush shocked defenders of civil rights again. "Terrorists" in the future should be condemned out of hand before military tribunals. Traditional criminal procedure is vacated when the accused are foreigners. Bush has appropriated "dictatorial power", raged the star conservative columnist William Safire. In fact critics from all political camps accuse Ashcroft and his employer of smashing the American constitution with a sledgehammer. "Military tribunals, secret evidence, no numbers about how many persons were incarcerated by the government --we look like a Third World country", exclaimed Jim Zogby from the Arab-American Institute.
Party-liners of the government refer to historical precedents like Abraham Lincoln's curtailment of civil rights during the civil war or the internment of 120,000 Americans of Japanese descent in the Second World War by Franklin Roosevelt. The resistance continues. The USA-Patriot act, according to the civil rights organization the American Civil Liberties Union, brings an "enormous increase of power for the executive that cannot be justified by anything". The legal draft not only allows a considerable expansion of surveillance. Greater powers for prosecuting attorneys and legal justification of so-called "black bag jobs" - legal burglaries for capturing evidence - were also anchored in that draft.
Exchanging Freedom for Security
The Bush administration is now incarcerating thousands of persons - mostly Muslims - in American prisons without presenting the prisoners to an examining magistrate. Most of the prisoners have no legal assistance; only a few were told why they are in custody. Ashcroft wages "a nonstop attack on civil rights" complained Ralph Neas, the president of the civil liberties organization People for the American Way. The attorney general refers to the exceptional situation after September 11 and even appeals to Attorney General Robert Kennedy'' campaign against the Mafia at the beginning of the sixties. While Kennedy was stopped repeatedly by American courts, the Bush administration brushes off the courts and misuses the "war against terror" as a pretext to obstruct public access to government information.
The attorney general instructed government authorities to examine more closely and increasingly reject requests under the Freedom of Information Act (FOIA), an important instrument of democratic transparency. Ashcroft encouraged the bureaucracies to stonewall. Whoever refuses to listen could expect his support. The president also indulges in the cult of secrecy. With his signature of executive order 13.223, George W. Bush torpedoed the planned release of documents of diverse American administrations and took an unparalleled step backward in opening the American archive. No one, no historian and no journalist, can examine important political decisions. Scandalous acts from the Reagan era remain under lock and key like risque jokes from the Clinton years.
Still the secrecy mania pales alongside Bush's order to set terrorism suspects before military tribunals. "The tribunals could send a message to the world that secret trials and executions by order of court martial without the possibility of a judicial review are acceptable as long as the accused is a foreigner", warned Patrick Leahy, the Democratic chairman of the Senate Judiciary committee. The White House justified the tribunal with the necessity of keeping evidence secret.
That evidence before military courts need not meet the standard of civil courts is veiled. Convictions become easier.
"Terror will win"
Bush and his legal advisor want to avoid failures like the Lockerbei trial when one of the two Libyan suspects was released. That the regular courts functioned well after the first attack on the World Trade Center in 1993 and after the assasinations against American embassies in East Africa in 1998 and sentenced the perpetrators is ignored.
Since the executive appears as investigator, accuser, judge and executioner in military proceedings, military tribunals avoid the American separation of powers. The impression, as Senator Leahy warned, is of practicing "victor justice".
The Washington terror fighters refuse bringing Al-Qaida terrorists and Slobadan Milosevic before an international court because no death penalties are imposed there. Instead of rethinking its previous rejection of a universal international tribunal, the Bush administration still relies on single-handed efforts as before the terrorist attacks. "Military justice is necessary; military justice will be shown", as Vice-president Dick Cheney narrowly described the decision.
In the meantime Senator Leahy and the conservative republican representative Bob Barr call for hearings before the Congress to probe the civil rights policy of Bush and Ashcroft. If American civil rights are not protected, "terror will have won this battle without firing a shot", admonished democratic senator Russel Feingold. He alone voted against the USA-Patriot in the Senate.