Oct. 8, 2004 – The Bush administrationâ€™s "anti-terrorism" policies have come increasingly under fire from civil libertarians across the political spectrum, but the subject of civil liberties has not become a major issue in this yearâ€™s presidential campaign, leading some to question John Kerryâ€™s position as well as whether Bush will act to remedy the rights violations brought on by his policies.
Civil rights advocates point to the governmentâ€™s indefinite detention of citizens and non-citizens as "enemy combatants," violations of the Geneva Convention through torture and abuse in the name of intelligence gathering, and the use of military commissions to try suspected terrorists, disenfranchising defendants of numerous rights afforded by civilian proceedings.
The USA PATRIOT Act, a broad legislative package ostensibly passed to give domestic law enforcement increased anti-terrorism powers, has also generated intense controversy. Several of its provisions, including wiretapping with no evidence of criminal cause, "sneak and peek" searches of peopleâ€™s homes without warrants, and the use of administrative subpoenas granting the FBI access to peopleâ€™s library and other records, have inspired a broad grassroots campaign to repeal or amend the Patriot Act.
Civil rights advocates look at this long and growing list of restrictions on privacy and freedom so aggressively pursued by George Bushâ€™s administration and see what appears to be a wide-open target for a progressive-minded candidate to poke at. That leaves activists wondering why the Democratic challenger has relatively little to say on the matter.
"The existence of the Patriot Act gives the government much broader powers than previously. I only hope John Kerry wouldnâ€™t be abusive of those -- once you give somebody power, itâ€™s hard not to use it." -- Douglas Reed, Georgetown University professor
Michael Ratner, human rights lawyer and president of the Center for Constitutional Rights in New York (CCR) said that the biggest departure from civil liberties happened after the September 11 terrorist attacks. The CCR is a non-profit legal and educational organization based in New York.
"Thereâ€™s never been anything like this," Ratner said. "When the Supreme Court criticized the Bush administrationâ€™s actions in GuantÃ¡namo, they cited the Magna Carta, from the year 1215, when King John was ordered to bring people to court before jailing them. When a moderate, at best, Supreme Court has to tell the president what to do by citing a document from 1215, you know the situation is pretty bad."
Mary Rose Oakar, President of the American-Arab Anti Discrimination Committee (ADC) in Washington, DC, said that Arabs and Muslims face many civil liberties violations. "The Constitution itself is our biggest civil liberty concern," she said. "ADC is very concerned about some sections of the Patriot Act, such as Section 215, which allows them to arbitrarily search a personâ€™s library records and such, without notifying the individual. We are also very concerned about racial profiling. Arab-Americans have been profiled, and even those perceived to be Arab, like Sikhs have been targeted. There is harassment at airports all the time."
Timothy H. Edgar, legislative counsel for the American Civil Liberties Union (ACLU) said: "President Bush has consistently proven to us that civil liberties are not an important issue for himâ€¦[His] four years in office represent a litany of poor policies that have diminished American civil liberties."
He added that in Congress, the ACLUâ€™s main concern right now is that Republicans will add certain provisions to the bill implementing many of the 9/11 Commission recommendations. House Republicans have in fact included several provisions to increase surveillance and crack down on immigration in their draft of the bill.
"By adding these harmful provisions in the 9/11 Recommendations Implementation Act," he said, "the House leadership will effectively turn the 9/11 reforms into a lightning rod and the House leadership can then attack anyone who criticizes the bill. This is extremely dangerous for civil liberties. While making the country safe, we must preserve our freedoms."
President Bushâ€™s policies on civil liberties have come under fire from conservatives as well. Ian Walters, Communications Director at the American Conservative Union (ACU), a lobbying organization in Virginia, said: "No one knows exactly how the provisions from Patriot I were enforced, because itâ€™s draped in national security. They wonâ€™t tell members of Congress how theyâ€™re using those powers, and our feeling is that until they come clean about it they shouldnâ€™t be given new powers."
Edgar of the ACLU said that Kerry had a better record than Bush regarding civil liberties.
"While we were certainly disappointed in Senator Kerry's vote for the Patriot Act," he said, "Kerry supports adoption of the SAFE Act [Security and Freedom Ensured Act of 2003], which puts much needed safeguards into the Patriot Act to help protect peopleâ€™s privacy from the FBI or the Department of Justice."
But Edgar added that the ACLU disagreed with Kerry on the 9/11 Commissionâ€™s recommendation of a national intelligence director. "We have serious concerns about the potential of such a director to increase spying by intelligence agencies on Americans," he said, "and believe it was irresponsible for Kerry to have endorsed the 9-11 Commissionâ€™s plans without changes to protect civil liberties."
Ratner of the CCR agrees that Kerryâ€™s stance on civil liberties and national security has been relatively moderate. Kerry has called for modifications of the Patriot Act, and has also spoken against the military commissions in GuantÃ¡namo, saying that the hearings should be along the lines of court-martials instead.
"He doesnâ€™t say anything about keeping people as enemy combatants," Ratner said. "Hopefully he would give people legitimate hearings. As to whether he would hold them or not, he has not been 100 percent clear on that. He also doesnâ€™t say anything about ending rendition," Ratner added, referring to the practice of deporting suspects to other countries to be tortured.
"His remarks on civil liberties issues have not been significant in a huge way," Ratner said, "and he has not gotten up and said that Bushâ€™s actions are an embarrassment to the US. But itâ€™s still better to have someone in office with the possibility changing things. My role as a human rights lawyer is to fight no mater whoâ€™s there. Pushing for change with Bush is like hitting a brick wall."
Douglas Reed, associate professor in the Government Department at Georgetown University said that he fears it would be too tempting for anyone to not exercise the powers granted under the Patriot Act. "The existence of the Patriot Act gives the government much broader powers than previously," he said. I only hope John Kerry wouldnâ€™t be abusive of those -- once you give somebody power, itâ€™s hard not to use it."
Though the Bush administration has touted the effectiveness of its "anti-terror" policies, Ratner insists that they have not helped combat terrorism.
On the contrary, those policies "are in fact making the situation even more dangerous," he said. "What happened at GuantÃ¡namo Bay and Abu Ghraib has made people angry and is making the situation worse. We need to show the world that we really are a democracy that has civil rights and that we adhere to law. Otherwise weâ€™re saying that itâ€™s a lawless world and we might as well be in medieval times."
Other candidates, such as independent Ralph Nader and Green Party candidate David Cobb, have won kudos from civil liberties activists for their more outspoken stance. Cobb has called for a repeal of the Patriot Act, saying that civil liberties in the country are threatened by corporate control of the government, economy and media.
"Our countryâ€™s current priorities are horribly skewed, and result in making us less safe and secure," Cobb said in an email interview. "Far more people have died in this country from industrial pollution, car crashes, alcohol and tobacco than from terrorist attacks. We need to redefine â€˜national securityâ€™ to take into account the health of our citizens, our democracy, and our economic and environmental security."
Nader also supports a repeal of the Patriot Act, and has called for "an end to secret detentions, arrests without charges, no access to attorneys and the use of secret â€˜evidence,â€™ military tribunals for civilians, non-combatant status and the shredding of â€˜probable causeâ€™ determinations."
Speaking on what civil liberties policy should be, Ratner of the CCR said the government should adhere to the Geneva Convention.
"Itâ€™s very clear," he said. "We need to give people POW status and hearings. We should obey the Geneva Convention with regard to humane treatment, and ending torture, ending the practice of rendition, and ending the secret interrogation facilities.
"On the domestic front, the government should not authorize detention without a trial," Ratner continued. "And it should reorganize the definition of terrorism so that it doesnâ€™t include demonstration activities."
Edgar of the ACLU said the government should be held responsible for ensuring that laws do not violate peopleâ€™s civil liberties.
"The constitution is the highest body of law in the U.S.," he said, "and the government is responsible in making sure that it is not violated when dealing with anyone within the countryâ€¦. We strongly support the recommendation of the 9/11 Commission for a civil liberties protection board that would have real authority to investigate and correct abuses."
In response to this recommendation, President Bush did create the Board on Safeguarding Americansâ€™ Civil Liberties in late August 2004. However, civil liberties advocates objected that the board was made up of representatives from the very agencies accused of violating civil liberties in the first place, and therefore could not effectively combat civil rights violations. According to an ACLU press release, the presidentâ€™s panel was "a far cry from the civil liberties board envisioned by the 9/11 Commission," and it called for an independent board that would "have full subpoena powers, be composed of experts in both security policy and constitutional law and be adequately resourced."
Ratner said it is "unfortunate that whatâ€™s happening to fundamental human rights law and the Geneva Convention has not been a major subject of the debate. Not only does it affect people around the world but Americans too."
He added, "What we do elsewhere eventually seeps down and undermines our own constitutional rights."