Repeal the USA Patriot Act, Part IIIby Jennifer Van Bergen
truthout.org (website)
4/3/2002 This is Part III of a six-part t r u t h o u t series on the USA Patriot Act.
This Act, passed hastily and in a time of fear, affects all of us in some very basic
and important ways.
 Part
III discusses the recent emergence of troubling evidence of violations of civil
rights under the USA Patriot Act, and looks at the disturbing possibility of torture.
Repeal
the USA Patriot Act
Part
III: Civil Rights Violations and Torture
by
Jennifer Van Bergen
t
r u t h o u t | April 3, 2002
Yesterday, I noted how similar the Patriot Act is to the abhorrent 1798 Alien
Act. I illustrated how both were enacted after attacks on Americans, and in times
of fear and hysteria. I pointed out how the Alien & Sedition Acts failed to protect
Americans and ended up causing extreme violations of American's civil rights. I
remarked upon the long-term effects of these laws, the blowback of which ultimately
contributed to the outbreak of The Civil War sixty years later. Finally, I closed
by noting how the wheel of history turns, as the Supreme Court was able to put Bush
into office on the basis of a now, long-accepted doctrine laid down in those earlier
precarious times.
The wheel-of-history analogy reminds me of the lines W. S. Gilbert wrote a hundred
years ago in the satirical operetta, "Trial by Jury:"
"The screw may twist and the rack may turn,
And
men may bleed and men may burn...."
W.S. Gilbert's haunting words were written in the context of a fictive and farcical
trial by jury, but they could be applied metaphorically just as well to the twists
and turns of time and fate, to the repetitions and revolutions of history. Those
who do not know history are doomed to repeat it. Democracy is a fragile thing.
But another point: one can also construe Gilbert's words literally. What is worrisome
now, under the Patriot Act and the Administration's ensuing measures, is that our
government might actually consider such things.
I mean, the screw and the rack. Torture.
Does the Bush Administration advocate torture? No. Not publicly, at least, although
the obvious pleasure Bush has shown at applying the death penalty, and his response
to one condemned woman's plea for clemency suggests he might. (His response was
to mock her.)
Does John Ashcroft? Not yet. But, unbelievably, the idea has been bandied about
in the press. (A CNN poll revealed that 45 percent of Americans would not object
to torturing someone if it would provide information about terrorism.)
More importantly, the Patriot Act opens the door for exactly that type of abuse.
Indeed, evidence is already leaking out of cruel treatment toward detainees.
A recent Amnesty International release states: "Reports of cruel treatment include
prolonged solitary confinement; heavy shackling of detainees during visits ... and
lack of adequate exercise."
According to the March 18th amended complaint in the case brought by the Center
for National Security Studies to compel the Department of Justice to release information
on detainees (CNSS v. DOJ): "There are also many reports about detainees being abused
or treated improperly while in federal custody. Detainees have alleged that they
have been beaten by guards. The Los Angeles Times reported that a Pakistani detainee
was stripped and beaten in his cell by inmates while guards did nothing; that five
Israelis were blindfolded during questioning, handcuffed in their cells and forced
to take polygraph tests; and that a Saudi Arabian man "was deprived of a mattress,
a blanket, a drinking cup and a clock to let him know when to recite his Muslim
prayers."
This is the treatment afforded to detainees who are being held on routine visa
violations, people who would not normally be detained at all. The complaint states:
"Less than five of the 718 immigration charges detailed by the government relate
to terrorism."
Americans should be outraged. This is a country of immigrants. This is a democracy,
not a tyranny.
Some detainees have been held several months without being charged with any violation.
Others report they continued to be held after bail had been granted and they were
ready to meet it, according to Amnesty International (AI), which has joined the
suit against the DOJ.
These conditions are in direct contravention of international standards, according
to AI. AI has also called for a full inquiry into the conditions in the federal
Metropolitan Detention Center in New York, to which AI was denied access, where
some 40 detainees are reported to be confined in solitary cells for 23 hours or
more a day.
The Seven-Day Rule
Under the USA Patriot Act, once the Attorney General has "certified" that an
alien is a terrorist or a threat to national security, the Immigration and Naturalization
Service (INS) may detain him without indictment for seven days before it brings
any immigration or criminal charges.
This sounds very much like the Prevention of Terrorism Act that was in place
in Great Britain in the 1970s under which IRA suspects could be held and interrogated
for seven days without indictment or counsel. The 1993 film, "In the Name of the
Father," starring Daniel Day-Lewis and Emma Thompson, showed just how brutally and
unfairly such laws can be used. "The Guildford Four" were arrested, detained without
counsel, beaten, interrogated under extremely coercive conditions, then, of course,
convicted and imprisoned. They continued to be imprisoned even after a convicted
IRA member informed the authorities the four were innocent. After serving fifteen
years in prison, the four were cleared of all charges and released.
This is exactly the type of thing that seems already to be occurring under the
Patriot Act.
Although it is extremely difficult to obtain information about those detained,
several attorneys testified before the Senate of such abuses. One: "Gerald H. Goldstein
testified before the Senate Judiciary Committee that his client had been arrested
on September 12 and held incommunicado from his lawyers until September 19, despite
both his and his lawyers' repeated requests for access to each other. During that
time, he was repeatedly interrogated despite his requests to speak with counsel."
The Attorney General can essentially throw anyone in jail he wants. All he has
to do is point his finger at someone and say the magic words, "terrorist," or "threat
to national security," and the suspect is detained. The Attorney General need give
no reasons or explanations. He can do this on "evidence" he never reveals. Such
evidence could be mere implication or hearsay without proof or corroboration.
As the ACLU has said, this sort of "'trust us, we're the government' solution
... is entirely unacceptable."
Furthermore, the government, once it has certified someone as a terrorist or
threat to national security under the seven-day holding provision, can then detain
the person indefinitely on nothing more than a visa violation.
Once these people are out-of-sight, the government hopes they will be out-of-mind.
What makes this worse is that the label of terrorist affixes without any trial or
proof of guilt. In other words, the law turns the presumption of innocent-until-proven-guilty
upside-down. "Label first; find guilty later," is the new law.
Under these conditions, the question of treatment becomes even more significant.
Torture
Unbeknownst to most Americans, claims of torture have arisen repeatedly in U.S.
terrorism cases from the 1970s onward. Defendants have made claims that they were
subjected to torture at the hands of mercenaries under U.S. control, foreign governments
who were acting in collusion with agents of the U.S., or in foreign custody but
under the watchful and ostensibly approving eye of FBI agents.
These claims, of course, are not reported in the news, as the civil rights of
suspected terrorists naturally do not draw much empathy. Courts are also generally
not sympathetic to such claims, and in some cases have even failed to hold evidentiary
hearings required by law to determine whether there is any factual basis to the
claim. Some, if not most, claims are thrown out for the simple reason that proof
of such torture is impossible to come by.*
In a few instances, however, an appeals court has overturned a lower court's
verdict, or refused to adjudicate a case, due to a claim of torture.
Did you get that? More than one court has had to throw out a case against a suspected
terrorist because there was evidence that our government was involved in torturing
him.
This should be an embarrassment to a democratic country. How dare we call ourselves
an advanced civilization?
In these cases, the torture was alleged to have occurred outside of the United
States, of course. That does not make in any less wrong.
There is evidence that such practices are not isolated to the past era of intelligence
agency abuses of the 1950s through the 1970's -- which included government experiments
on unwitting adult and children U.S. citizens -- but have continued into the 1990's
and beyond. (I personally worked on a case in which a suspect claimed he was tortured
for four months by Pakistani military police in 1994 with the knowledge and under
the supervision of the FBI. The suspect was convicted, and, to date, as far as I
know, no hearing has been held to give the defendant the opportunity to prove his
claim or to ascertain its credibility. This is a matter of public record, but who
has heard about it?)
The existence of police brutality unfortunately no longer surprises most people,
because the cases come out in the media. They come out in the media because victims
are Americans who have constitutional rights that have been violated.
But, federal agent brutality is unknown to us because, where it does take place,
it only does so in the deepest shadows of overseas covert ops in cooperation with
sleazy and abusive foreign governments, and is only directed at foreign nationals.
Our government can thus maintain deniability by laying the blame on foreign governments
for the torture, and no one has to worry about the rights of the suspect who will
be tried in our courts (but who may not yet have even been charged with a crime).
This picture should be a deeply disturbing one to us. Why? Why should we care
about how alien terrorist suspects are treated? First of all, because torture is
inhumane and wrong.
Secondly, because if the suspect confessed under torture, he may not even be
guilty. (Ask yourself, if you were being tortured, would you hesitate to say anything
in order to make it stop?) The government may have gotten the wrong guy, which means
the real perpetrator remains at large.
Thirdly, because it flies in the face of what a democracy is about.
A fourth reason is that the abuses carried out under these laws may come to be
used against us, as well. Remember what happened with the Alien & Sedition Laws?
The Alien Act, which was meant to protect Americans from dangerous foreign nationals,
was used to keep out of office qualified immigrant citizens. The Sedition Law, purportedly
enacted to preserve national security, was used to persecute newspaper editors who
dared to oppose the Administration.
Are these the kinds of laws we want to live under? Is this what a democracy is
about?
* (It is my belief that evidentiary
hearings on claims of torture should use a similar standard as that used in asylum
applicant claims of persecution. The asylum applicant is not required to meet the
impossible standard of supplying eyewitness testimony or documentary proof of past
or probable future persecution in his homeland, and the court may rely on information
compiled from credible sources such as international organizations, private voluntary
agencies, news organizations, or academic institutions, to corroborate the applicant's
testimony. Were this standard applied to torture claims in terrorism cases, a substantiated
claim of torture by a suspected terrorist would not per se exonerate him, but would
go towards a valid defense. Thus, for example, if it is established that a torture-claiming
suspect was held by the authorities of a regime for which Amnesty International
has documented torture, the court should determine whether a confession obtained
by the FBI immediately after obtaining custody of the suspect - whether or not he
supposedly waived his Miranda rights -- should be inadmissible.)
Tomorrow, in Part IV, we will look at how the Patriot Act affects U.S. citizens.
Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law,
is an adjunct faculty member at the New School for Social Research in New York,
and is a member of the Board of the ACLU Broward County, Florida Chapter.
Jennifer Van Bergen is an Editor and a
regular contributor to t r u t h o u t. Close |