It became cliche after Sept. 11 to remark that "everything is different now." We didn't know what was different, but something had changed. Months later, after the detention of hundreds of people without charges and the unleashing of the FBI to spy on U.S. citizens, we have a better idea of where the differences lie. America is now less like the constitutional republic launched in 1776, and more like a third-world banana republic.
The erosion of protections for individual rights isn't advertised as such. Attorney General John Ashcroft didn't publicly tear up the Constitution; instead he announced, perhaps accurately, perhaps not, that "dirty bomber" suspect Jose Padilla, also known as Abdullah Al Muhajir, a U.S. citizen, posed a potential danger to millions of Americans. As such, Ashcroft pronounced Padilla an "enemy combatant" and turned him over to the military.
As an "enemy combatant," Padilla can theoretically be held indefinitely, without charges. That designation effectively suspends habeas corpus — the right to challenge arrests in court and to be released unless the government is ready to prove its case.
Timothy Lynch of the Cato Institute warns, "Without judicial review, the police can arrest people without warrants and jail people without trials."
Senator Charles Schumer defends the administration's actions, arguing, "If you aid and abet the enemy, whether you are a citizen or not, you're not entitled to the right of due process."
Schumer and Ashcroft may believe that due process protections don't apply to people accused (but not convicted) of aiding America's enemies, but the Constitution doesn't agree. Under Article 1, Section 9, the writ of habeas corpus may be suspended only by an act of Congress, "when in Cases of Rebellion or Invasion the public Safety may require it."
Padilla isn't the only person in prison under creative interpretations of U.S. law. Many other suspects have been thrown behind bars under a statute intended to ensure that witnesses in criminal proceedings appear at trial.
The Christian Science Monitor reported that "[j]ust as a presidential designation of someone as an 'enemy combatant' can trigger indefinite military detention without any formal charge, federal prosecutors are accomplishing that same result of indefinite detention without charge by relying on the material-witness statute."
U.S. District Judge Shira Scheindlin is less than impressed with the government's position. In April, she released a detainee, saying that the Justice Department's "broad reading of the material witness statute has led to serious abuses."
Are the people cooling their heels in jail cells guilty of plotting some sequel to Sept. 11? Well … that's a question that can't be answered.
One problem with holding people without charges is that, in the absence of a trial, prosecutors never have to prove their case. We don't know whether any of the detainees pose a real threat — or were simply unlucky enough to get ensnared in an overeager dragnet.
But if we don't know if the government is rounding up the guilty or the innocent, we do know how it identifies the subjects of its attention. Around the country, snooping has become a favorite hobby of law enforcement personnel. The FBI has acquired new powers to eavesdrop on telephone calls — and even to monitor what books we borrow from the library.
Expanded wiretapping powers have been brewing since the 1994 passage of the Communications Assistance for Law Enforcement Act, which essentially requires telecommunications companies to tailor their systems for easy wiretapping. CALEA was briefly stalled by civil libertarians and industry lawyers, but the political climate changed after September 11. Then Congress passed the USA Patriot Act, further enhancing the FBI's power to monitor Americans' messages to one another with little or no need for warrants. As a result, wiretaps and other interceptions of communications have surged in recent months.
But the USA Patriot Act didn't target just phone calls and e-mail — books and newspapers also draw its attention. Section 215 of the law authorizes the FBI to demand records from, among other sources, libraries and bookstores, on the reading habits of suspects. Bookstore owners and librarians are forbidden to reveal to anyone that such records have been handed over.
The American Library Association advises members to refuse demands for records unless accompanied by a court order. With the ability to appeal such orders severely curtailed, the ALA now urges its members to "avoid creating unnecessary records" so that they'll have little to surrender to curious cops.
These vast new powers and creative interpretations of the law are justified as temporary measures necessary to wage the War on Terrorism. We're told that life will return to normal once hostilities have ceased.
But even assuming that constitutional protections can survive a wartime battering unharmed — something that appears unlikely from past history — how are we to know when this war is over? The War on Terrorism is an undeclared crusade against a brutal tactic — not a formal war against an identifiable enemy. As Cato's Timothy Lynch points out, "America is now waging a permanent war. … Whatever constitutional rights are taken from us (or that we choose to relinquish) will not be restored after a few years. In all likelihood, they will be gone forever."
Yes, in the wake of the attacks on the World Trade Center and the Pentagon, America is different. It's less like the country it once was, and more like the places that spawned the Sept. 11 terrorists.
— Arizona Daily Sun