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What you need to know about Bush's Big Brother policies
"They want to intimidate people from dissenting"

March 24, 2006 | Pages 10 and 11

MICHAEL RATNER is president of the Center for Constitutional Rights (CCR) in New York City. A veteran attorney, he and the CCR have led the way in defending the victims of the U.S. "war on terror"--from the Arab and Muslim immigrants caught up in the witch-hunt that followed the September 11 attacks, to the detainees languishing in brutal conditions at the U.S. prison camp in Guantánamo Bay, Cuba.

Here, Michael tells Socialist Worker's DAVE FLOREY what activists should know about the federal government's new police powers.

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SINCE SEPTEMBER 11, the state has gained a number of new surveillance and police powers through laws like the USA PATRIOT Act. Could you talk about these?

AFTER 9/11, I wrote an article at the end of October 2001 called "Moving Toward a Police State, or Have We Arrived?" And I was nervous about saying that then. I went back and looked at the article the other day, and what I said then is a lot worse. My most paranoid thoughts in that article were not even close.

The things I focused on were the Patriot Act, the detentions of non-citizens in the United States, and the lifting of the FBI guidelines on domestic surveillance. So let's go through those three, understanding that subsequently, in November 2001, we had the detention order from the President that allowed him to pick up people anywhere in the world and send them to places like Guantánamo Bay. We didn't know about torture, we didn't know about renditions, we didn't know about National Security Agency wiretapping.

The things I focused on were the Patriot Act, the detentions of non-citizens in the United States and the lifting of the FBI guidelines on domestic surveillance. So let's go through those, understanding that subsequently, in November 2001, we had the detention order from the President that allowed him to pick up people anywhere in the world and send them places like Guantánamo Bay.

The Patriot Act was passed within six weeks of 9/11. Some 300 pages long, and no one got a chance to look at it.

There were hundreds of provisions, but among the key ones that I remember focusing on was the authority of the attorney general to pick up people anywhere--pick up non-citizens and hold them on what are called attorney general warrants for periods of six months, without trial and without any kind of charges. They just have to go back to court every six months and say, "I have to hold these people in the interest of national security."

What's interesting about that power is that it's never been used. Because now, they've asserted a much broader power--the right to simply pick up non-citizens in the United States or anywhere else, and hold them indefinitely without charging them or taking them to court.

So even the powers to hold non-citizens that the President asked for under the Patriot Act were much less than they what they used.

But I considered that to be something that was completely illegal and a hallmark of a police state--because a police state is one where there are no checks on the executive. What that power meant for activists, particularly for non-citizen activists, was it really ended their ability to speak out publicly, because they could simply be picked up based on their First-Amendment protected statements and slammed in jail with no real recourse.

The second thing we focused on was that they broadened the definition of terrorism under the Patriot Act so that it would clearly pick up the protests that took place at the [World Trade Organization] in Seattle in 1999. So people had climbed a fence and gotten arrested--if you looked at the new definition of domestic terrorism in the act, that could be included.

My feeling was that this could be heavily misused by the government to cast a wide net--particularly against protests.

I gave another example: in the early 1990s, I got arrested in front of the White House protesting Bill Clinton's treatment of Haitian refugees. What we were doing was blocking the street in front of the White House, and that would fit the definition of domestic terrorism--one, a violation of state or federal law; two, threat to life, because obviously ambulances couldn't get through that street; and third, that it was to coerce the government, or at least put pressure on it to change its policy about Haitian refugees.

So that statute is very broad, and it's still laying in there, not used that much so far--though it has been a little bit. It's been used particularly to go after animal rights activists.

They even used it against a woman who was having a fight with her husband on a cruise, and she sent a note to the captain saying something about doing something to the ship unless it turned around and took her home--some BS thing. She was charged initially with domestic terrorism.

So the statute is outrageously broad. Another part has to do with materially aiding terrorism. Partly under the Patriot Act and partly under laws from the Clinton administration, if you materially aid terrorism, you're as guilty as a terrorist.

ISN'T THAT what the civil rights attorney Lynne Stewart was charged with?

THAT'S CORRECT. Lynne Stewart was the lawyer who was charged with aiding terrorism by essentially speaking to a press person about something her client said. It's a pretty big stretch--Lynne didn't intend to aid terrorism, didn't do anything that they charged her with, and they convicted her.

The law can go much more broadly. At the center, we had a case involving a group called the International Humanitarian Law Project, which wanted to teach groups that the U.S. somehow thinks are terrorist about the Geneva Conventions or the Law of Human Rights. The law is so broad that you can't do even that. And you certainly can't give them things like blankets for a hospital.

So by the end of October 2001, we already see that there's a way of indefinitely detaining people. There's a way of bringing into a net not just so-called "real terrorists," but a broad swath--when necessary--of American dissent.

There's a third aspect of the law that's been focused on more recently, which has to do with the ability of the FBI to get information from libraries and other places by simply saying, "This is relevant to a terrorism investigation." Essentially, they give the library a letter signed by a judge--although the judge doesn't have any discretion--that says getting all the books Michael Ratner has read is relevant to a terrorism investigation, even though I'm not the target of the terrorism investigation.

So there's a whole set of new laws under the Patriot Act that allow the government to get new information on probably millions of Americans--from the libraries, from the video store, and anywhere you go, without going to court. It's a broad dragnet for information.

A fourth issue, which is interesting in terms of the present context, is the broadening of wiretapping and the targets of wiretapping. The law allows a lower standard for wiretaps on U.S. citizens approved by the secret FISA courts. And it allows evidence from intelligence to be used in criminal cases and shared.

This makes surveillance powers much stronger, which is why the president's non-use of these powers is so extraordinary. Here he went to Congress to ask for the powers under the Patriot Act, and later, he said this wasn't enough.

HOW DOES this fit in with the detention of Arab and Muslim men after September 11?

AT THE So that's the PATRIOT Act. But at the Center for Constitutional Rights, while we litigated under the Patriot Act, we learned that this wasn't the way that the main oppression came down.

The main oppression immediately after 9/11 was the arrest--and that's not the right word, it's really the kidnapping--of hundreds, and Muslim groups say probably up to 5,000, of non-citizen Muslims in the United States, who were picked up on very minor immigration violations. Like they didn't notify immigration their address changed.

After 9/11, the government panicked, and they picked up hundreds of non-citizen Muslims, a lot of them in the New York City area, and sent them to prisons, both in New York and other holding facilities.

These were people you meet on the street every day--from doctors to people who sold newspapers. They picked up those people, without any probable cause to believe they were terrorists, but simply because there were immigration violations. Prior to 9/11, those people wouldn't have been picked up. They wouldn't have even been looked at.

What they did when they put them into the facilities is they beat the heck out of a lot of them. They put them in what are called "three-piece suits"--which are shackles at the ankles, waists and arms. They called them terrorists, and they treated them terribly.

The Center brought a lawsuit, which is still pending, and then the Justice Department's inspector general issued a report confirming exactly what the Center said in our lawsuit: that these people were completely innocent, picked up for no reason other than immigration violations and treated as if they were terrorists.

We visited some of the people in prison at the time--with lights on 24 hours, shackled, video cameras. Relatives didn't know where they were. They were actually disappeared. It was a terrible period, and some of that is still going on.

And it had nothing to do with the Patriot Act. That was John Ashcroft, when he was attorney general, simply changing the rules of immigration, and saying "Pick these people up, put ' em in jail, don't give 'em bail, don't give 'em the kind of hearings they deserve." Even if they have an order deporting them, don't deport them--keep them in prison until we've cleared them of terrorism.

Completely unconstitutional, completely illegal--these are what I call "internal detention" cases. You could go back to precedents in Germany. These are carried out, in my view, without law--just based on what the government says.

So we're up to October 2001, and look at how far we've already gone. Then, on November 13, 2001, we get the president's Military Order No. 1.

That's the one that really brought the house down, because it says the president has the authority to pick up any alleged terrorist who's a non-citizen--and what does "alleged terrorist" mean except what the president says--anywhere in the world and hold them indefinitely. You never have to charge them, never have to take them before a court, and you can hold them anywhere in the world forever.

And then it says that if a person is tried, they can be tried before a military commission--a special kangaroo court that they still haven't succeeded in using. They're trying to, but we've been holding it back.

That's extraordinary power. That's a power that kings shouldn't have had after the Magna Carta in 1215--the right to pick up someone anywhere in the world.

The president justified it, of course, as part of the so-called "war on terror." Of course, it's not a real war, but he claims that based, from what we've seen in the press recently, on the authorization to use military force that the president received from Congress to fight the Afghan war. The authority was written so broadly that the president is now using it to say, "I can do anything I want to protect the United States against terrorism."

Really, the best analogy for people to understand is the Reichstag fire in Germany in 1933, when the parliament of Germany was burned to the ground. That night, Hitler and the storm troopers gained power, he got the government turned over to him, and as a result of the Reichstag fire, he took emergency powers under the Weimar constitution and did whatever he wanted for the next years legally.

They used the Reichstag fire the same way that Bush used 9/11. He got an emergency order out of Congress that he expanded way beyond what Congress thought at the time, to go after not only Afghanistan, but people in the United States.

Under what he calls "authorization to use military force," he has picked up U.S. citizens in the United States--that's the Jose Padilla case. That's where the term "enemy combatants" comes in, because by calling people "enemy combatants," they look like they fit under the authorization to use military force.

That's how the people in Guantánamo are being held under the president's so-called "powers to hold enemy combatants." If you had to put your finger on one part of the early period and the way it's been misused, that's really the beginning of the coup d'etat in America. Because that says, "I'm the king, I can do no wrong, no court can tell me what to do, and no one has the right to go to court."

As we jump forward to the national security wiretapping, Bush basically asserted that the authorization from Congress to use military force to track down al-Qaeda has implicit within it the right to wiretap. His argument is "if I can kill people, why can't I wiretap?"

The authorization doesn't say anything about wiretapping or operating domestically, and it really relates specifically to people responsible for 9/11. But it's written poorly by Congress, which, being weak-kneed as hell, went along with a very broad authorization.

So if we're looking at the main features of the period, we have the USA PATRIOT Act, internal detentions, the November 13th order from the president and the authorization to use military force. The consequences run from the wiretapping of Americans in the United States, to internal detentions of non-citizens, to the making of "enemy combatants" out of citizens, to the setting up of Guantánamo, to the rendition of people to be tortured in CIA secret prisons all over the world.

All this was done with what you have to call a legal façade. Then you get a series of legal memos written by the administration that authorize the use of torture, authorize. When I started doing my work in this area after 9/11, as I said, I thought we were moving toward a police state. We have arrived. The president believes he can do whatever he wants in national security.

CAN YOU talk some about the prisoners at Guantánamo Bay? Recently, evidence has come to light that some of the detainees may be guilty of nothing at all.

OF THE 700 to 800 people held at Guantánamo originally, through a lot of legal efforts, as well as through countries that were close to the United States, we've freed about 200 to 300. Of the 500 remaining, probably a large majority is innocent of having committed anything.

There may be a few people there who are guilty of something, but we'll never know because they're not charging people and trying them in an open way. So we don't know. But we now have been able, because of our court victory, to get a number of lawyers down there to interview clients, and they don't have anything on these people.

What the Bush administration set up was a special military tribunal, with no lawyers or anything, where evidence obtained through torture could be used and where they try to prove that people were hostile or fought against the United States.

Under that system, a majority of the detainees were found to be that, but it's a meaningless system--it's a kangaroo court. Yet even under that system, they found some people to be innocent of anything. Even the government admits they shouldn't be there. But of course, they didn't tell us that until we got our lawyer down there.

CAN YOU talk some about the FBI's COINTELPRO program to spy on radicals and socialists, and whether there's a parallel with the government's powers today?

COINTELPRO WAS a program that eventually went after most of the groups involved in dissent against the government's policies, from the Vietnam War to Black liberation. I worked in that period, and we were all subject to it.

There was a time when it was just devastating for organizations. I remember in Puerto Rico, when we were working on the independence movement, they set up a special group called Socialista Pro Vota so it looked like they were socialists who wanted to vote in favor of statehood for Puerto Rico or something. They would set up artificial groups.

A number of things came out of the 1960s and '70s, and even the '80s during the Central American movement. A huge amount of dissent and pressure was able to force restrictions in FBI guidelines--on what they could do domestically to groups who were engaged in political activity and First Amendment activity. We got the CIA to supposedly stop spying in the United States. And we got prohibitions on using wiretapping against domestic groups in the United States.

But these are the things that I've talked already about them doing. They've expanded the NSA, and the president is asserting he can do wiretapping. Within weeks of 9/11, John Ashcroft had lifted the guidelines and made it much more possible to do domestic spying.

That had to do with putting informants in First Amendment-protected groups, and, of course, it was focused--certainly initially--on any kind of Muslim organization. If you're a Muslim organization in this country, I don't care which one, you've got informants walking all over that group. You've got your phones tapped, and you've got yourself being photographed.

I have scores of Muslim friends who've been approached by the FBI to spy on Muslims. I have people who are upper-middle-class doctors and much more wrapped in the flag than I am who are being visited by the FBI and asked, "What do you think of the Palestinian issue?" "What did you think of 9/11?" And basically asked to be informants.

That's throughout the Muslim community. If you're a citizen, it's one thing. If you're not a citizen, even with a green card, it's a terrifying situation for Muslims.

So we've focused on Muslims, but if you look at what you have in place right now the ability to surveill groups and put informants in--you're talking about a massive spying program against activists in this country.

Part of it was revealed by the Pentagon, which said it has a unit that was revealed to be spying on any kind of group that's opposed to the war. They do it under the guise of "protecting U.S. facilities," so that if you're demonstrating outside a recruiting office or a military base, they're putting people into your groups and getting people to inform.

This information is already coming out, we know about it, but it's as if everything is okay after 9/11. All of the assumptions that we could form a group that would protest military recruitment or the war on Iraq, and be free from government intervention--spying, surveillance, informing, disruption--are out. The major media, the pundits and others all talk about how "we've got to be safe after 9/11."

I would say for activists that I think you have to assume these things. At our office, we're sure that we're heavily wiretapped. We've had to issue a series of cautions where we can't talk about certain things on the telephone. We have to fly to places like Bahrain to talk to the families because we have no attorney-client security anymore.

So it's a terrible period--but particularly for Muslims right now.

THE JUSTIFICATION is that these policies make us safer. What's your response?

OBVIOUSLY, DOMESTIC spying doesn't make people safer. I mean, the Quaker ladies down in Florida who are being wiretapped are not the people who're going to bomb the World Trade Center. So I think you can turn the argument around--it's not making us safer to do any of this.

What they're doing is trying to carry out their policies without strong dissent. They want to intimidate people and make certain groups think it's illegitimate or unsafe or they may get in trouble by dissenting against government policies.

When I was in law school in the 1970s, they would take your name down if you went to a demonstration, and take your picture. And when you went to take the bar examination, it could come up, because they had a book at the New York City Police Department and could say, "Michael Ratner went to a demonstration." And I might not get admitted to the bar.

Now we know, for example, that New York City is again photographing demonstrations. So if I were to go up to my law school and say, "Come out to demonstrate with me," I'm not going to get law students to do that. And that's true across the board.

Especially now that government databases are becoming merged with private databases, if you're applying for a job at a straight corporation, they're going to look at the database and say, "Well, this guy's protesting the Bush administration." So this surveillance not only doesn't make us safer--what it's doing is intimidating people from really protesting what they see as serious governmental intrusion in our lives.

And what the national security wiretapping tells us is that no communications are secure any longer. Now that everything is digitized, and they have computers sitting on the back of the switches of big telephone companies, every e-mail, every telephone callis being recorded, it's being classified. The files must be gigantic.

WHAT SHOULD activists know in order to protect themselves from the government at demonstrations or in our day-to-day activities, that kind of thing?

YOU SHOULD always bring identification and have the name of a lawyer. There's a whole series of things.

Never, never talk to the FBI without a lawyer. Even lawyers and activists will get called by the FBI, and they think they can outsmart them. If they knock on your door, never talk to the FBI without consulting a lawyer. It's like eating potato chips: once you start, you can't stop, and they'll use you as an informant for the rest of your days.

The main thing, though, is you have to stay active. People have to be demonstrating and not be intimidated and say, "I'm not doing anything that I should go to jail for." The biggest message from me right now is that this is a time in this country where protests should be everywhere--every college, every neighborhood. This is really a time when Martin Luther King would be calling for widespread civil disobedience around this country--around every issue from Iraq to torture to domestic surveillance.

WHAT DO you say to people who fear that the state has become all-powerful and unstoppable?

THE QUESTION is whether, after 9/11, things can ever be the same in the sense of what our country has done. I'm not sure that they ever will be, but that doesn't mean we can't try to get back at least a substantial part of what we had in terms of our rights.

The people who carried this out have to be held accountable. And I don't mean held accountable by being thrown out of office. I mean they have to be tried--seriously tried in criminal cases. They're afraid of that. One of the reasons for these legal memos that justify torture and indefinite detention is because there are criminal laws in the United States that say you can't torture people, you can't disregard the Geneva Conventions, you can't commit war crimes.

If I had a fantasy, it would be to put those guys on trial--the people who really committed war crimes.

Right now, there are certainly splits opening up in the ruling elite. What they represent isn't clear, but it's clear that conservatives--traditional conservatives, not neo-conservatives--and libertarians are not happy. You're beginning to get people peeling away from the administration and conservatives speaking out. There are now some splits in the administration, and you're seeing people in Congress beginning to back off.

But it's minor compared to where we have to go. We have to get the American people understanding that it's going to take mass civil disobedience and mass demonstrations. I don't think you start with Congress. Congress is completely spineless, and the Democrats have sold us out on Guantanamo and on Alito--you can just go down the list.

So you have to start with your local communities and your colleges and universities, and just say, "We've got to put a stop to this." Right now, every time Bush or a congressperson or a senator speaks, I would track them, and I wouldn't let these guys address people without protest.

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