International Socialist Review, March–April 2002

Candace Cohn

The assault on civil liberties

From International Socialist Review, Issue 22, March–April 2002.
Downloaded with thanks from the ISR Archive.
Marked up by Einde O’Callaghan for the ETOL.

THE GENERATION that lived through Vietnam learned in its bones that every imperialist war comes home. As villagers were brutally slaughtered in Southeast Asia, Black Panthers were assassinated in their beds in Chicago. Just as the American government attempted to destroy a people’s aspiration for self-determination halfway around the globe, so Uncle Sam pulled out all the stops in surveillance, infiltration, imprisonment, blackmail, and intimidation of movements for social justice on its own turf.

In the 20th century, imperialist competition has led to American conquest throughout the world. But that dynamic is not a one-way street. As Martin Luther King Jr. said on April 4, 1967, in a speech delivered at Riverside Church in New York City, of the war of his generation: “The bombs in Vietnam explode at home.” [1]

Military aggression abroad has always meant political repression at home. This should not come as a surprise: The American capitalist class and its government are not one class and one state at home, and another, different state/class abroad. Because we live in a bourgeois democracy, it is easy to develop illusions about the American ruling class, the American government, and freedom and democracy. Unlike activists throughout Central America, Asia, Africa, and the Middle East, we are not used to living with the searing, daily reality of secret and indefinite detentions, military “justice,” disappearances, and widespread torture by America’s allies and client regimes.

But illusions are rapidly shattered when the “freedom-loving” state goes to war. Suddenly, the previous balance of civil liberties and milder repression no longer best serves its needs. The government wastes no time in “adjusting” that balance to suit its new, wartime requirements–which include, among other things, a quashing of dissent and the targeting of an immigrant population as “the enemy.”

Why must dissent be quashed? In the case of the current war, so that Secretary of Defense Donald Rumsfeld and the generals can have a free hand in bombing and murdering innocent civilians, beating and torturing captured soldiers, and cutting deals with local warlords and thugs. Official brutality on such a scale requires that the U.S. population be ideologically convinced. At the very least, the majority must be resigned to accepting the government’s savagery.

For society’s elite, popular dissent in these circumstances is a serious liability. If the truth gets out about the war’s hidden motivations and goals, which invariably involve crass corporate greed, then no one will support or die for it. As Eugene V. Debs, the great antiwar socialist and mass leader who went to jail for his opposition to the First World War, put it in his famous Canton, Ohio, speech:

The feudal barons of the Middle Ages, the economic predecessors of the capitalists of our day, declared all wars. And their miserable serfs fought all the battles. The poor, ignorant serfs had been taught to revere their masters; to believe that when their masters declared war upon one another, it was their patriotic duty to fall upon one another and to cut one another’s throats for the profit and glory of the lords and barons who held them in contempt. And that is war in a nutshell. The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and all to lose–especially their lives. [2]

The population must be hoodwinked to go along. The government fully exploits its recognition that the “statement of war aims for propaganda purposes is very different from ... one defining the true national interest.”[3] Waging a massive dis-information campaign, the warmongers suppress the dangerous truth–mass murder for greedy motives–and substitute benign fictions.

The aggressors use two main strategies to accomplish their huge propaganda scam. The first, which is beyond the scope of this article, is media manipulation. The other, which involves crushing dissent, forms the heart of our discussion here. In its attack on civil rights, the ruling elite attempts to gut free speech protections to which it was previously forced to yield. Thus it becomes freer to criminalize those who expose its lies and to conduct its imperialist war.

During the Vietnam era, the government became increasingly unable to suppress the truth as opposition to its dirty war grew. The real story leaked out, irrepressibly, over time–beginning with driblets in the press, and ending in a flood. In time, the torrent included televised nightly news clips of flaming children and napalmed villages, and extensive exposÈs leaked from the Pentagon.

Americans watched, read, and learned–and poured their overwhelming outrage into the antiwar movement, which spread throughout the population and into the army. The domestic antiwar movement consciously built international solidarity with the Vietnamese National Liberation Front’s struggle for self-determination, and vice versa. Together, they brought U.S. imperialism to its knees. The American army, facing internal mutiny, collapsed.

The government learned, as we did, from Vietnam. As Dean Rusk, Vietnam-era secretary of state, pointed out, you can’t win a war that’s televised.[4] This time around, as in the 1991 Gulf War, the U.S. power elite hopes to suppress the truth more effectively than it did during the war in Vietnam. The principal aim of the current war is to undo the “Vietnam syndrome” at its root, by reestablishing the United States (this time, the sole superpower) as Cop of the World–beginning in the Middle East and Caspian Sea regions, with their oil. To undo the Vietnam syndrome by reestablishing and legitimizing extensive, internal counterintelligence and repression is the goal of the current domestic war, led by the Department of Justice.

Today’s war–as Vietnam, both World Wars, and every imperialist war ever fought–once again teaches the inevitable: Military aggression abroad means political repression at home.[5]

Overview of the current attack

The master class of our own country, pretending to be waging a war for democracy, have done everything in their power to destroy democracy.
– Eugene V. Debs, to cheering crowds while temporarily out on bail during prosecution for his Canton, Ohio, antiwar speech

Many a bum show has been saved by the flag.
– George M. Cohan

Now that the Afghan war has been “victoriously” concluded, it is difficult to remember the ferocity of last autumn’s attack on civil liberties. The legacy of that seemingly distant assault, however, is a multitude of antidemocratic and anti-immigrant measures–some in active use, some yet to be used.

The war, both domestic and foreign, continues. Though the public perception may be that American military operations are winding down, Pentagon officials make clear that this isn’t true. “It is going on today with every bit as much intensity as it was last month, the month before, and indeed every day since September 11,” said Rumsfeld at the end of January.[6] Plans for the invasion of Iraq are now being publicly trumpeted.

On the home front, President George W. Bush seeks major new funding–to the tune of $38 billion–ostensibly for “domestic security.” In reality, Tom Ridge, head of the newly established Office of Homeland Security, quietly leads a vast modernization of the government’s ability to collect and use information that it gathers on ordinary Americans. Bringing the government’s domestic and international “antiterrorist” technologies and databases into the high-tech age is the short-term goal. The long-term goal is a modern, massive, and highly invasive electronic policing system in which government and corporate databases are merged; information gathering is extensive and speedy; and the activities, backgrounds, and beliefs of noncitizens and citizens are easily tracked.

The postñSeptember 11 domestic campaign against democratic rights unfolded with dizzying speed and staggering scope. A flood of near-daily autumn edicts, fiats, executive orders, and “rule changes” sought to gut constitutional protections of free speech, of freedom from unreasonable search and seizure, and of the right to a fair, speedy trial and a lawyer.

So great and so rapid were these onslaughts, that new federal “antiterrorist” legislation–appalling in its expansion of the state’s police powers–was virtually lost in the avalanche. That legislation, the USA PATRIOT Act (or, Uncle Sam Abuses Powers by Aggressively Trashing Rights In Outrageous Travesty) [7], was passed by an overwhelming majority of liberals and conservatives–Democrats and Republicans, alike–at the end of October.

The passage of USA PATRIOT was quickly eclipsed, as the country was treated to an illuminating lesson in civil “democracy”: massive witch-hunts, secret detentions, “voluntary” round-ups of thousands of (mainly Arab and Arab American) immigrants and citizens; military tribunals; denial of attorney-client privilege; widely disseminated proposals for legalized torture, retinal identification cards, and internal passports; encouragement of Americans to spy on neighbors and “watch what they say”; promises of expedited citizenship for immigrants who act as stool pigeons; harassment and discipline of students, professors, and media reporters who speak out against the war; whipping up of racism, which has led to many attacks and, in some cases, deaths; delays in visa processing for tens of thousands of innocent immigrants who come from “suspect” countries; the imposition of secrecy on ordinary immigration hearings, to the extent that they may not even be listed on the docket; the jailing of immigrants even after immigration judges have ordered their release; the limiting of immigration appeals; the withdrawal of presidential papers and historical records from the public domain; and greater limitations on what citizens can learn about government functioning under the Freedom of Information Act.

Note that this litany does not include the numerous repressive measures of the USA PATRIOT Act itself, which are even more sweeping in their own right: secret searches of citizens and noncitizens alike, without probable cause, without notification, and without any relationship to “terrorist” investigations; expanded detention, without hearing, of immigrants, potentially for life, on vague assertions by the attorney general; expansive e-mail and Internet snooping; expanded, secret government access to personal and professional records, including medical records, bank records, credit histories, drug tests, hair and DNA samples, etc.; tremendous expansion and legalization of government powers to spy on and prosecute political protesters, dissenters, and organizations; criminal definitions of “terrorism” having little to do with a common understanding of the term–so broad as to include us all; guilt by association; expanded government access to student records; and broader wiretapping powers.

The USA PATRIOT legislation inspired similar efforts elsewhere. Canada, Britain, Mexico, China, India, Turkey, Tibet, Nepal, and others have used the cover of the U.S. war on terrorism to crack down on democracy. Several individual states within the U.S. have also passed their own versions of “antiterrorist” legislation; Illinois legislation provides a mandatory minimum penalty of 20 years, and a possible maximum of death.

In a bizarre Kafka-esque landscape, it has become possible in the new millennium in the United States to be jailed without charge; to be held secretly–and, potentially, indefinitely; to never be informed of the evidence against you; to have your name withheld; to be presumed guilty until proven innocent; and to be denied a lawyer to mount a defense. The land of “freedom” and “democracy” has established guilt by association, guilt by suspicion, and guilt by belief.[8] The scope of the attack on civil rights has been so broad as to constitute apparent overkill; in fact, it is commensurate with the military scale of unlimited war that the elite of this country intends to wage.

Hijacking the Bill of Rights

The illegal we can do right now; the unconstitutional will take a little longer.
– Henry Kissinger

The freedoms targeted by today’s ruling “patriots” are part of our historic revolutionary heritage. They are protected by the first 10 amendments to the U.S. Constitution, which represent gains of the American Revolution. These 10 amendments, known as the Bill of Rights, are the fruit of revolutionary activity and mass popular demand.[9]

The democratic rights that the country’s elite is now looting are rights that the American people have enjoyed for more than 200 years. But for the forces of American reaction, even the gains of the 18th century bourgeois revolution are too subversive.

In addition to constitutional due process guarantees of fairness[10], currently targeted provisions include the First Amendment (freedom of speech and religion); the Fourth Amendment (freedom from unwarranted search and seizure); and the Sixth Amendment (right to a fair, speedy trial and a defense lawyer).

We shall examine these rights and others in more detail below, as they relate to each of several key administration initiatives: mass detainment of immigrants, military tribunals, monitoring of attorney-client conversations, criminalization of dissent as “terrorist,” and the USA PATRIOT Act.

Witch-hunts and detainees

Out of the sly and crafty eyes of many of them leap cupidity, cruelty, insanity, and crime; from their lopsided faces, sloping brows, and misshapen features may be recognized the unmistakable criminal type.
– Attorney General Mitchell A. Palmer, on immigrants arrested in the 1918 Palmer Raids

We are a nation of immigrants. The Bill of Rights makes no distinction between citizens and noncitizens. Its guarantees extend to both. In addition to the Fourth Amendment freedom from unreasonable search and seizure (detainment), immigrants are entitled to many other protections under the Constitution and other laws of the United States:

The Bill of Rights does not grant foreigners the right to enter the United States, but once here, immigrants are entitled to certain broad constitutional protections. Due Process–the right to be treated fairly, whether in a deportation hearing or a criminal court proceeding–applies to every person within U.S. borders. And Equal Protection prohibits discrimination based on race or national origin. An alien’s rights to free speech and religious freedom are protected under the First Amendment. The Refugee Act of 1980 gives certain aliens the right to political asylum in the U.S.[11]

Despite constitutional dictates to the contrary, however, immigrants have been a favored group for scapegoating throughout our country’s history. Noncitizens are the most vulnerable: least protected legally, least supported socially, often least knowledgeable about their rights and how to defend themselves.

Immigrants facing racist attacks deserve our support on grounds of basic human rights and solidarity. But, in fact, everyone’s self-interest is at stake. Historically, the repressive state–like the jungle predator, or the schoolyard bully–has always come for the weakest first. Its initial assault constitutes a foot in the door. The government traditionally enacts laws and practices against the weak that it would like to apply to all of us. If these practices are tolerated, they then become extended to other parts of population.

Last fall, the Justice Department began with the secret detention, on no charges, of 1,200 mainly innocent Arabs and Arab Americans. It refused to release their names and moved detainees around the country to make it difficult for family and attorneys to find and contact them.[12] Federal agents have kept the detainees incarcerated on minor, technical immigration violations–which might be legal grounds for deportation, but not for jail. Authorities have refused to release even detainees who admit to the violation, agree to leave the country, and arrange plane fare. Recently, the Justice Department quietly announced that it would continue to hold detainees even after immigration judges had ordered their release. As of this writing, about one-third of the original 1,200 detainees remain in jail. This, despite the fact that

[a]fter thousands of interviews, FBI agents have not found a single accomplice to the hijacking attacks within the United States, senior law-enforcement officials said last week. They have yet to find even one instance in which Zacarias Moussaoui, the only individual charged in connection with the terrorist acts, made any contact with the 19 hijackers.[13]

The Justice Department has moved on from the 1,200 detainees to a national dragnet of 5,000 young men, aged 18 to 33, who legally arrived here from Middle Eastern countries during the last two years. From those 5,000, the government upped the ante to 300,000–the number of immigrants it now seeks to identify and deport for overstaying their visas in the last 10 years.

None of this legal slamming of immigrants has anything to do with finding those responsible for September 11. The FBI itself acknowledged that fewer than a dozen of the 1,200 people it jailed had any suspected connection to terrorism and September 11 and admitted that none of the 5,000 men it sought to interview had broken any laws.

Last fall’s passage of the USA PATRIOT Act sought to legitimize and expand government detentions. Under that legislation, immigrants and other noncitizens may now be detained for a week without charges if Ashcroft “certifies” that the individual is a “terrorist” or a threat to “national security.” If it later turns out that the detainee is not deportable for terrorism, but is deportable for a technical violation (such as overstaying a visa), consequences for the individual may be dire, especially if the person is not accepted by his or her native country. In that case, the individual can be jailed under USA PATRIOT indefinitely and without a hearing. The act effectively imposes life sentences on immigrants in these circumstances based on the attorney general’s vague and unsubstantiated allegations.

The New York Committee Against the War (NYCAW), in demanding the immediate release of all detainees, has pointed out that immigration violations are civil violations. No other civil offense in our society is punished by incarceration. As protests by organizations such as NYCAW grew last fall, and as comparisons mounted in the press between detentions here and the infamous “disappearances” under various Latin American regimes, the U.S. government simply became more aggressive. Representative Saxby Chambliss of Georgia, the chair of the House Subcommittee on Terrorism and Homeland Security, told 30 local Georgia officials in November that “every Muslim that comes across the state line” should be arrested. Meanwhile, the assistant attorney general, Michael Chertoff, told the Senate Judiciary Committee, “[L]et’s be clear ... [T]hey’ve overstayed their welcome ... They don’t belong here.”[14]

The government continued to stoke racism even as “patriotic” hate crimes multiplied against Arabs and Arab Americans and those who were mistaken for Arabs or Muslims, including Sikhs. Federal officials claimed to decry prejudice: “Muslims are not the enemy”; “Arabs are our allies”; “We are not profiling.” Even as it mouthed its empty mantras, however, the government continued to openly profile and persecute Arabs on a massive scale. In so doing, it detained hundreds. Take the following cases, for example.

A Pakistani student in Oklahoma reported a racist beating to both the university and the local police. The university disciplined the attackers, expelling one. However, the FBI investigated the victim, for he had once been a neighbor of two other students who were being detained. One of those students had once roomed with suspected hijacker Moussaoui.[15]

A woman in her forties from Uzbekistan was arrested because she was riding in a car with three other people, one of whom had a name similar to someone else the FBI desired to detain. She was held for 40 days because she had overstayed and violated her visa by working as a janitor at Wal-Mart.[16]

One detainee’s “terrorist” connections are so preposterous to his neighbors and colleagues that the whole community has rallied around him. Dr. Irshad Shaikh has been a major boon to the small community of Chester, Pennsylvania, for several years as their highly successful, effective, and generous commissioner of public health. This did not stop the FBI from breaking down Shaikh’s door with guns drawn in a highly public and humiliating raid. Men in moon suits removed his possessions for inspection. Since then, the community of Chester has doubled Dr. Shaikh’s pay in an effort to keep him.[17]

Most detainees are not as prominent as Dr. Shaikh, and therefore do not garner such broad public support. Most targets of the FBI’s raids are more like the Kazi family, which lives two blocks away from Dr. Shaikh. Mr. Kazi is Chester’s city accountant, and he is Pakistani. Thirty armed FBI agents descended on his home and held his wife at gunpoint, while a decontamination team conducted a 10-hour search–based on a “tip” that a suspicious liquid had been dumped outside. The dangerous biochemical turned out to be soapy water from a clogged sink.

Perhaps it is obvious from these examples why the FBI’s detention of 1,200 people has netted so little evidence toward solving the crimes of September 11. The agency’s response to its own failure, not surprisingly, has been to mount still larger fishing expeditions.

The Justice Department’s program to round up 5,000 innocent Arab young men for questioning is so abusive that several city police departments have refused to go along. The targets are not suspects, but they come from countries where other “evildoers” might also have come. These men have been chosen on the basis of the crudest stereotyping (age, gender, and country of origin). Many of those sought are students, and federal investigators have relied heavily on university cooperation. Within two months of the September 11 attack, federal investigators had contacted administrators on more than 200 college campuses to obtain information about students from Middle Eastern countries.

The Universities of Wisconsin, Michigan, and Oregon refused to cooperate in the roundup. (Michigan, with perhaps the largest Arab population in the country, involved thousands of targeted students.) Police chiefs in Detroit, Michigan, and Eugene, Oregon, announced that their departments would not cooperate with blatant profiling against those they had no reason to suspect. Police departments in Austin, Texas; San Jose and San Francisco, California; and Portland, Oregon, also refused to cooperate.

The federal government was forced to back off, at least from its aggressive stance and style. The 5,000 “interviews” would be “voluntary,” it announced publicly. Unfortunately, it also established (privately) that those who voluntarily cooperated could be held without bail if investigators so desired.[18] Police and FBI agents are now tracking down the hundreds who voluntarily decided not to turn themselves in for questioning.[19]

The interrogations and incarcerations (“detentions”), based on the crudest anti-Arab stereotypes, form the racist domestic offensive of the imperialist war in the Middle East. The war against “terrorism” has resurrected domestic racial profiling. The scandalous profiling of Black Americans–by police, real estate, insurance, and other agents–had come under increasing attack in recent years. Now, racist attacks on Arab detainees are being used to legitimate profiling procedures that will increasingly be used in the attack on Black Americans.

The oldest trick in the book of American rule is racism. Today’s version involves scapegoating Arabs, in an attempt to convince the rest of the population that its interests are really the same as those of the country’s billionaire militarists. Arab Americans (substituting, for the moment, for Black Americans) are the section of the oppressed picked out for persecution, to convince the rest of the oppressed that they and their oppressors are in this war together.

Military tribunals

[N]on-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner.
– William Safire, former Nixon speechwriter

The administration move that has engendered the broadest and most vocal opposition was the establishment of military tribunals. Bush issued his extraordinary executive order for special tribunals on November 13, 2001. Vague and overreaching, based on questionable precedent, developed unilaterally, and unjust enough to give even courts-martial a bad name, the military tribunals quickly ignited broad outrage. The tribunal order established “a crude and unaccountable system that any dictator would admire,” the New York Times editorialized.[20]

Military tribunals have been created rarely in our history–mainly to hang spies behind enemy lines–and only during congressionally declared war. They are supposed to be reserved for situations in which there are inadequate civil alternatives[21]–clearly not the case today.[22] Bush’s order, ostensibly aimed at trying al-Qaeda terrorists responsible for September 11, actually covers all noncitizens in the country. Twenty million noncitizens live in the United States, most of them with green cards. Any one of these legal residents “could be brought before a military tribunal, instead of a regular court, if the president said he or she has ëaided terrorism’ or ‘harbored’ a terrorist.”[23] In addition to 20 million noncitizens, the military tribunal order could be extended to all citizens as well, according to constitutional scholars.[24]

The Sixth Amendment to the U.S. Constitution, which applies to citizens and noncitizens alike, provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

That civilians, as opposed to soldiers, would be tried before military tribunals rather than the usual criminal courts, is especially outrageous and without precedent.

As originally drafted, the tribunals would

be held in secret;
use secret evidence that would not be shown to the defense, thereby eliminating the right to cross-examine;
use rumor and hearsay as “evidence”;
allow evidence obtained by torture;
have no juries (in order, the administration piously explained, to “protect” the jurors from repercussions);
have judges–and possibly defense counsel–who are not independent of those bringing the charges;[25]
refuse defendants the right to choose their counsel;
not require presumption of innocence or proof of guilt “beyond a reasonable doubt”;
be immune from appeal; and
have the power to take a defendant’s life with even less agreement than required in more “liberal” courts-martial.[26]

Other abuses in the military tribunal order are too numerous to detail fully here. For example, the order “gives the president and secretary of defense unbridled discretion to conduct all proceedings in complete secrecy, and to reach whatever ëfinal decision’ the president deems proper, perhaps even convicting and sentencing to death someone the tribunal has acquitted.”[27]

The tribunal order was entirely unnecessary. Numerous legal avenues were and remain available to federal authorities to pursue those who committed the September 11 atrocities. These avenues have been used by the Justice Department before, to successfully prosecute Timothy McVeigh for the 1996 Oklahoma City bombing and al-Qaeda associates (and others) for both the 1993 bombing of the World Trade Center and the 1998 bombings of the U.S. Embassies in Africa. The government’s claim that without military tribunals, prosecutorial options are inadequate is disingenuous.

There is no expiration date for the order or the tribunals. Like the limitless war Bush has proclaimed, no end is in sight. Much of the outcry against tribunals from Democratic Party luminaries involved objections to lack of consultation. Had they been consulted, the Democrats insisted, the tribunals would have been so much more effective! Much-vaunted congressional hearings under Patrick Leahy, Democratic chair of the Senate Judiciary Committee, collapsed in hot air. The only objection that the pathetically weak Leahy-led opposition could mount was to Ashcroft’s hypocritical protection of gun rights.

Unwilling to alienate the National Rifle Association, the rights-bashing Ashcroft refused to allow examination of records tracking gun ownership by suspected terrorists. The constitutional right to bear arms, the attorney general pointed out, is protected under the Second Amendment. Somehow, other constitutional protections (such as free speech and limited police searches) do not carry the same legal weight for the man who pledged, hand over heart, to enforce the laws of the land. Ashcroft’s patent hypocrisy produced a lot of noise from the Democrats–about an issue that mattered for around 48 hours. In the meantime, the national opportunity to officially expose and condemn the draconian tribunals had been squandered.

The torrent of opposition unleashed by the military tribunal order, however, extended far beyond the Democratic Party; it included civil rights organizations, right-wing columnists, the liberal press, legal scholars, military officers, European allies, and international human rights organizations. Military officers were incensed when their courts-martial–no bastions of liberty–were given a black eye through confusion with Bush’s tribunals. Three hundred U.S. law professors from varying institutions and political persuasions signed a letter opposing the military tribunals. Even the relatively conservative American Bar Association “def[ied] an administration request to keep quiet, [and] voted ... to recommend that defendants tried before military tribunals be guaranteed traditional legal protections.”[28]

Spain, Germany, and other countries that the United States lectures about secret trials and human rights, announced that they would refuse to extradite to the United States terror suspects they had arrested. Uncomfortable with the American government’s adoption of the “Peruvian option,” they particularly objected to harsh death penalty provisions.

When there is opposition, the government is unable to get away with its entire right-wing agenda. So, in the face of this opposition, the administration has declined to try suspected “terrorists” Zacarias Moussaoui and John Walker Lindh in special military tribunals. Their cases will instead be prosecuted in ordinary, civilian, federal criminal courts. Furthermore, the Justice Department has been forced to reform the original tribunal order. New regulations are being drafted that reportedly soften harsh death penalty and other provisions.

The administration is unwilling to say when the draft regulations will be ready or what they will encompass. A key issue, for instance, is whether meaningful appeals will be allowed. But the very fact that the tribunal provisions are being redrafted in the face of broad popular outrage indicates the power of a potential pro-democracy opposition movement.

Attorney-client privilege

[N]o privilege is more “indelibly ensconced” in the American legal system than this privilege.
– Robert E. Hirshon, president, American Bar Association

Among the reported wholesale violations of civil rights of the detainees, denial of access to attorneys has been frequent. Many of detainees who remain in custody were refused attorneys until at least the end of January–months after they were jailed.

In several cases last fall where authorities did allow detainees to speak with lawyers, the government monitored their conversations. In a rule quietly published without the usual public discussion period, the Justice Department seized authority to “monitor communications between people in federal custody and their lawyers if the attorney general deems it ‘reasonably necessary in order to deter future acts of violence or terrorism.’”[29]

The Sixth Amendment to the Constitution expressly guarantees the right to an attorney to aid in one’s legal defense:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ... and to have the assistance of counsel for his defense.

But legal representation as guaranteed under the Sixth Amendment cannot exist without confidentiality between lawyer and client. That confidentiality, known as attorney-client privilege, has therefore been protected as virtually sacred since the days of Shakespeare and Queen Elizabeth.

Such entrenched precedent barely gives pause to today’s “patriots.” In their attempt to transport us to a pre-Bard era, however, they risk igniting the broadest protest so far. Certainly Enron ought to clue them in: Corporate lawyers and clients need rock-solid guarantees of confidentiality more than anyone.

The First Amendment and “terrorizing” dissent

There are some very serious bad guys out there, and I am not talking about Osama bin Laden. We are talking about pretty sophisticated bad guys.
– New York City’s former deputy police chief, John Timoney, referring to protesters at the 2002 World Economic Forum in New York

Perhaps the most fundamental social freedom is the right to dissent: to think and speak freely, without interference from governmental powers. The language of the First Amendment to the Constitution recognizes this universal democratic right and protects it against government interference:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It is true that Congress and the courts have carved out many exceptions to these premiere protections. It is also true that “free” speech has always been a hypocritical concept that is more available to some than to others in class society. Nonetheless, the constitutional right to dissent remains crucial. It was won in the American Revolution and belongs to the people.

The targets of the antidemocratic crusade have ostensibly been genuine terrorists like those responsible for September 11. Certainly, punishing the September 11 perpetrators is a goal of current government policy. But “terrorist” is an umbrella term that extends far beyond al-Qaeda. In fact, the main domestic targets of the administration so far have been two sections of the working class that are traditionally attacked: immigrants and activists in movements for social justice. We have already detailed the current attack on immigrants. Now, we shall examine the attack on dissenters.

Most of us understand “terrorism” to have a particular meaning, generally involving violent attacks on government officials or innocent civilians in order to make a political point and calculated to instill fear and shock in the general population. But when representatives of the power elite use the word “terrorism” nowadays, they often mean something quite different. “Terrorism” has in fact has become a code word used by “superterrorists”[30] to demonize, marginalize, and criminalize domestic opposition.[31] Bush, Ashcroft, and the FBI have all explicitly declared their determination to focus on critics of the status quo as part of the “antiterror” campaign.

Ashcroft revealed in early December that the war on terrorism would involve extensive targeting of “domestic religious and political groups.” Even though the Afghan war was still raging and Osama bin Laden remained at large, Ashcroft felt so secure of success in the campaign against al-Qaeda that he announced plans for a new national offensive. His plan would reverse 25 years of reforms barring domestic surveillance of political groups. The reform guidelines were imposed upon a thoroughly discredited FBI, following exposure of agency abuses in the mid-1970s that shocked the country.

During the Vietnam era, revelations mushroomed regarding dozens of scandalous intelligence programs, such as COINTELPRO (counterintelligence program), run by the FBI, the CIA, and other government agencies. Popular outrage prompted an exhaustive congressional investigation into “the FBI’s claims that domestic intelligence was necessary to combat terrorism.” Instead of substantiating the FBI’s claims of “communist and terrorist subversion” by political groups within the population, the Senate committee headed by Democrat Frank Church of Idaho (known as the “Church Committee”) found a pervasive web of criminal sabotage, lies, dirty tricks, and sordid crimes committed by the government against innocent Americans. The scale of abuse by the political police was massive. Nearly all forms of criticism and dissent had been targeted, especially the Black liberation and antiwar movements.[32]

In the mid-1970s, the government’s spying was reined in as a result of mass popular demand and the Church Committee’s investigations. Official spying on the people certainly never stopped. But the intelligence community was forced to operate within serious confines (just as American military intervention did not end with Vietnam, but has been significantly limited since). It is precisely these reins that the Bush administration is trying to cut loose today.

The administration’s current plan, if unchecked, would return us to the dark days of ubiquitous, uncurbed government spying and sabotage against the American people. The current administration, in fact, would like to take us back even further. It is seeking legal sanction for much conduct that the government was forced previously to carry out illegally.

Goals and tactics remain the same. Only the labels have changed: “Antiterrorist” has replaced “anticommunist” as the justification for police spying and political repression.

Congress, the left, and other critics

I am willing to salute the flag as the flag salutes me.
– Hubert Eaves, 11 years old, arrested in 1916 for refusing to pledge allegiance to a flag that represented Jim Crow and lynching

Only a month before Ashcroft publicly revealed the plan to reverse 25 years of anti-spying reforms in December, in a high-profile statement he equated his critics with traitors who aid the terrorist cause. Hauled before the Senate committee that was investigating antidemocratic administration policies, Ashcroft declared:

[T]o those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends.[33]

Skeptical senators were not the only ones to be told by the Bush administration that they threaten the nation’s security. Bush began the New Year by announcing that unions would henceforth be banned from the Department of Justice. His grounds? National security![34]

The basis for identifying critics and opponents as terrorists has long been in the making. Long before September 11, the FBI’s official attitude has been that “domestic terrorists” include left-wing groups, according to its then-director, Louis J. Freeh, in congressional testimony in May 2001. Describing the agency’s targets, Freeh testified:

The second category of domestic terrorists, left-wing groups, generally profess a revolutionary socialist doctrine and view themselves as protectors of the people against the “dehumanizing effects” of capitalism and imperialism. They aim to bring about change in the United States through revolution rather than through the established political process.[35]

The political police have been particularly concerned with global justice activists since the protests against the World Trade Organization (WTO) in Seattle in 1999. The FBI’s concern is evident both in Freeh’s extensive testimony and in the agency’s conduct.

The FBI has worked intensively recently with local police to undermine, harass, and set up demonstrators in several cities. In Washington and Philadelphia, outrageously false reports have been leaked to the press regarding the discovery of “dangerous weapons” (such as vegetables) among protesters. Other reported FBI/police abuses of global justice protesters include trumped-up charges and excessive bail, raids under false pretenses, profiling activists and leaders for harassment, prolonged detention, and brutal treatment in custody.[36]

Peaceful protesters against the World Economic Forum (WEF) in New York City in February faced violent, unprovoked police attack without warning, according to photographic and testimonial evidence.[37] A February 5 news release by the People’s Law Collective reveals that demonstrators against WEF were arrested by the dozens (200, in all) and subjected to “glaringly illegal” treatment and detention.

But the FBI does not stop at harassing global justice protesters. The agency expressly extends its “antiterrorist” net to Puerto Rican independence activists, environmentalists, anarchists, socialists, Women in Black (a vigil-oriented women’s peace group), Reclaim the Streets (a kind of semi-rave, semiñstreet party), and many others.[38]

If the testimonies of Freeh and Ashcroft leave any doubt, the president himself has made it clear that the government will function as thought police. From now on, voicing a “terrorist” creed, not just committing a “terrorist” act, will suffice to provoke Bush’s vengeance, the president assured a Portland crowd at the beginning of the New Year. Anyone “who espouses a philosophy that’s terrorist and bent, I assure you we will bring that person to justice.”[39]

“Terrorist and bent” apparently includes “critical of government policy.” Since September 11, the FBI has stepped up “terrorist investigations” of people who express criticism of the government. The agency is committed to following up every “tip” it receives–no matter how disreputable, malevolent, or crackpot.

Last October, a 60-year-old retired phone company worker received a visit from the FBI for expressing his opinion while working out at the local gym. During a social discussion, Barry Reingold stated that “Bush has nothing to be proud of. He is a servant of the big oil companies, and his only interest in the Middle East is oil.” A fellow weight lifter found these comments to be “disloyal.” He called in the tip, and the FBI investigated Reingold as a potential terrorist. (In cases like Reingold’s, even if the tip is “discarded,” the FBI still opens and maintains a file on the “suspect.”)

In another case of “combating terrorism” last fall, a community college student in North Carolina

faced 40 minutes of grilling by two Secret Service agents and a Raleigh police officer in her doorway (she wouldn’t let them come in, and they had no search warrant). By her account, they said they were investigating a tip that she had “un-American material” in her apartment. From the doorway, they took particular note of a poster of George W. Bush holding a noose. It read: “We hang on your every word,” referring to his unflinching support of the death penalty as governor of Texas.

A small Houston art gallery was investigated for “anti-American activity” by FBI agents when it opened an exhibit on U.S. covert operations called “Secret Wars.”[40]

These examples of the FBI’s commitment to investigating every person reported for disagreeing with the government join instances cited above of government harassment of protesters. Coupled with official policy statements against dissenters, a clear pattern emerges. From gallery owners to unionists to global justice demonstrators to Greenpeace members, those who dare to criticize the status quo are, in the eyes of the administration, traitors and “terrorists”–or, at best, the aiders and abettors of “terrorism”–who must be stopped.

Threats to academic freedom

[I]t seems now that the place where you see the most obvious censorship is on college campuses–the precise place where you would expect to see the least.
– Harry A. Silverglate, coauthor of The Shadow University

Last November, the American Council of Trustees and Alumni (ACTA), a nongovernmental organization, created and published an attempted blacklist of 40 “unpatriotic” academics–students, professors, and heads of universities–from around the country.[41] Lynne Cheney, wife of Vice President Dick Cheney, and Democratic Senator Joseph Lieberman, are two of ACTA’s founders and sit on its board.

The report’s release evoked McCarthyist echoes, and the immediate outcry forced ACTA to back down. It replaced its original report with a sanitized version that omitted names (but added descriptions and retained quotations). Douglas Bennet, for example, is no longer referred to by name, but more “anonymously” as the president of Wesleyan College.

What Bennet, who avidly supports the Bush administration’s response to September 11, is identified for is rather startling: the idea that Americans should try to be understanding toward other cultures’ sensitivities. Hardly a call to revolution. But a faction of this country’s ruling class is signaling that it will require absolute loyalty, with not a sliver of daylight between itself and its supporters. To veer even a millimeter from the official line invites taint: “disloyal,” “unpatriotic,” “soft on terrorism.” And so all dissent is chilled.

And so, too, of course, are ACTA and the country’s rulers freer to go after their main target: those who oppose the war.[42] Protesters at a Harvard rally in September made it onto ACTA’s list by chanting, “What do we want? Peace! When do we want it? Now!” Seventy-six professors at the University of California at Berkeley (UC-Berkeley) and 100 other academics were cited for taking out an advertisement in the New York Times calling the war unacceptable. A sign at the University of Maryland proclaiming “Hate breeds hate” was subversive enough to be included on their list.

ACTA also condemned the UC-Berkeley student senate for demanding a front-page apology after student editors at the UC-Berkeley Daily Californian published an anti-Arab cartoon. ACTA specifically cited a student senate member for saying,

It’s not about being offended. It’s about the implications of [running] an inflammatory cartoon at a time when there had already been more than 1,000 hate crimes against the community depicted. Racism is not an American right.

The ACTA attack is emblematic of a broader, post-September 11 trend in academia. That trend has included firings, discipline, harassment, public denunciation by superiors, and physical threats against teachers and students who speak out against the war.

In response, students, professors, and media supporters have been involved in free speech skirmishes across the country. More than 3,000 academics and supporters have signed onto and circulated an academic freedom petition “protesting the campaign of intimidation carried out by pro-war media and college administrators.”[43]

The USA PATRIOT Act

[Patriotism] ... is a word which always commemorates a robbery.
– Mark Twain

The campaign against dissent has many facets. In addition to those we’ve examined above–academic, public policy, and political police–there is the legislative side.[44] If government officials have announced their intentions to go after dissidents, unionists, the left, and immigrants under the cynical guise of fighting “terror,” then the USA PATRIOT Act provides the legal means to do so. In that recent larcenous legislation, the U.S. government, like a swift thief in the night, stole the people’s First and Fourth Amendment rights.[45]

USA PATRIOT seeks to criminalize constitutionally protected dissent as “terrorist” in the following ways:

Demonstrations: Protests, pickets, marches, rallies, and demonstrations qualify as “terrorist” under the act’s definition if the government determines that activity “dangerous to human life” is involved–which could conceivably cover acts of minor vandalism, resisting arrest, or violent provocations by police agents; and if they “appear to be intended ... to influence the policy of a government by intimidation.” [italics added][46]

This provision could be used to criminalize protests against the International Monetary Fund, the World Bank, or imperialist war, among others. Note that under USA PATRIOT’s language, conduct need only to appear to be intended to influence by intimidation–it need not actually be intended to influence by intimidation–in order to qualify as “terrorist.”

Organizations: The secretary of state is authorized under USA PATRIOT to designate any group that has ever engaged in “violent” activity as a “terrorist organization,” according to the American Civil Liberties Union.[47] Such a sweeping definition could include many groups that engage in direct action–for example, Greenpeace or People for the Ethical Treatment of Animals. There are no safeguards or procedures to appeal arbitrary decisions.

Minor assistance: The USA PATRIOT Act punishes not only the dissenter as terrorist, but also anyone who assists or “harbors” that person. Providing even the most minor assistance to anyone designated a “terrorist” is criminalized. The act is drafted so broadly as to make ordinary, innocent conduct, such as allowing friends to sleep on your floor when they come to demonstrate against the WTO–even if you stay home while they’re at the protest–a serious “crime.”

Guilt by association: Beginning (for now) with noncitizens, the government has resurrected and extended the McCarthyite concept of guilt by association. Under USA PATRIOT, non-citizens, including lawful permanent residents, may be barred from entering or reentering the country–or, if they’re in the U.S., detained or deported–for belonging to or lawfully assisting groups deemed “terrorist” by the government.

The government doesn’t have to notify noncitizens which groups to avoid, and their assistance doesn’t need to be related to the group’s alleged terrorist activity. Groups that are not designated as terrorist can be included–if an individual “should have known” that his or her assistance would further loosely defined “terrorist” activity. (The government does not have to prove this “should have known” charge; the oppressive burden is on the individual to prove the difficult negative that he or she “should not have known.”) Paying dues or otherwise financially supporting a proscribed organization is a deportable offense.

These provisions could ensnare, for example, many individuals who generously made innocent contributions to Muslim charities in this country that the government has now deemed connected with terrorism. The U.S. government has been steadily increasing its list of organizations that it considers terrorist, including Hamas and Hezbollah.

Extending government spying and sabotage: The USA PATRIOT Act explicitly puts the CIA back in the business of spying on Americans, granting it access, without court order, to “a vast array of information gathering on U.S. citizens.”[48] The new authority violates both statutory prohibitions in the CIA’s charter and limitations that were placed on it after the notorious abuses of the 1960s and 1970s.

First Amendment rights are not the only civil rights assailed by the USA PATRIOT Act. It centers in its crosshairs historic Fourth Amendment protections against police abuse. The Fourth Amendment to the Constitution protects the people from arbitrary invasion and detainment by the government. It forbids the government from coming into your home, taking evidence, or arresting you just because it doesn’t like your color or nationality, your political or religious beliefs, your moral or sexual persuasion. Before it can search or seize you or your belongings, the government must first obtain a warrant from a court. To get that warrant, it must demonstrate probable cause “that a crime has been, is being, or is about to be, committed.” The government can’t come in or detain you or seize your property just because it wants to–at least, not according to the language of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable cause: The Fourth Amendment’s requirement of probable cause is a historic cornerstone of the American legal system. USA PATRIOT dispenses with this sacrosanct requirement by simply stating that much less will henceforth suffice.

Under the USA PATRIOT Act, when law enforcement agents seek search warrants in the future, they won’t need to prove to a judge that they have probable cause to believe that a crime has been, is being, or is about to be committed. Now, instead, the agents will get their warrants if they simply establish “relevance” to “national security.” Relevance is a much lower standard to meet than is probable cause. A viable legal argument can almost always be made as to the relevance of anything.

Notice: “Probable cause” is not the only core protection of the Fourth Amendment that USA PATRIOT attempts to gut. The act also tramples “notice,” a critical requirement inherent in Fourth Amendment protections as interpreted by the courts.

“Notice” means “notification.” Under traditional legal standards, you have to be notified that your house is about to be searched; the police can’t do it in secret when you are not home. The reason that notice of a search has been considered a key Fourth Amendment protection is that without notice, you cannot possibly assert your rights.

Without notice, for example, you could not object if police came to the wrong address, or if they searched through your dresser drawers when their warrant was limited to a search for a stolen car.[49] The ability to object is important not only at the time of the search, but also in potential subsequent criminal prosecutions, when police may try to introduce into court evidence seized improperly during the search.

To dispense with notice under USA PATRIOT, all law enforcement has to do is show that giving notice of a search would jeopardize an investigation–an extremely low standard. If it shows this, then police or FBI agents may secretly enter your home while you’re not there, search your belongings, download your hard drive, photograph and/or take your belongings, and simply never tell you they were there.

The Bush administration, so eager to expose our private lives and homes to its unrelenting eyes, turns out to be very big on secrecy for itself, refusing to make public a number of documents and communications, and even forcing the General Accounting Office to sue Cheney to make him hand over information regarding the meetings of his energy policy task force.

Finally, the way in which the administration drafted the sneak-and-peek search provisions provides powerful evidence that the official “antiterrorist” public relations propaganda is cynical baloney. The “antiterrorist” search powers in USA PATRIOT are not limited to “antiterrorist” prosecutions; they apply across the board, to the entire criminal field.

Wiretaps and cyberspace surveillance: Traditionally, wiretaps for content have been considered Fourth Amendment searches requiring probable cause. But under USA PATRIOT, authorities are no longer required to show “probable cause” to obtain wiretaps for investigating a “crime.” The new law also legalizes controversial, “roving” wiretaps–in which the government can bug any phone that a suspect uses without getting a new warrant each time. Under this provision, your conversations might be bugged, for example, because you use the same pay phone a suspected “terrorist” once used.

Cyberspace snooping is comparable to telephonic eavesdropping, but represents a whole new vista of emerging legal developments. The repercussions of the USA PATRIOT legislation for cyberspace privacy are hugely significant. Space limitations unfortunately allow only the following brief discussion here.[50]

The new standards for cyberspace searches under the USA PATRIOT Act are low. Rather than the traditional Fourth Amendment requirement of evidence of “probable cause,” the state has only to assert “relevance to an[y] ongoing criminal investigation,” a test that is almost impossible to fail. If law enforcement meets this (non)standard, then USA PATRIOT removes traditional discretion from the judge, who must issue the search order–even if the judge believes that law enforcement is carrying out a bogus fishing expedition or vendetta.

With the order obtained on less-than-probable cause, law enforcement agents are not supposed to view content, but “only” e-mail addresses and Web sites visited. Unfortunately, current technology does not allow addresses to be viewed separately from content; that information moves together on the Internet in electronic “packets.” The FBI insists that it can be trusted to receive all of the information–content included–then cover its eyes at the right places. (If you’ve kept a straight face, incidentally, they have some Enron stock to sell you.)

Even if you are not a target of a government investigation, your e-mail and Internet activity may be monitored under USA PATRIOT, despite Fourth Amendment safeguards, in either of two cases. You may be snooped through the FBI’s “Carnivore” Internet surveillance system. Carnivore gives the government access to electronic communications of non-suspects if they happen to share an Internet service provider (ISP) with a targeted suspect.[51] You may also qualify for snooping as a trespasser. A “trespasser” is defined as someone who doesn’t have authorized access to a machine or network–and therefore is fair game for surveillance. You can be a “trespasser” if you were late, for example, in your payments to an ISP, or if you shopped online at work against company policy.[52]

Records and bodily evidence: Obtaining medical records, financial records, fingerprints, and the like, which also qualify as searches under the Fourth Amendment, have suffered the same fate as private phone conversations and personal Internet activity. If the government meets its new standard for getting a warrant (“relevance” instead of “probable cause”), institutions must supply the government with a given individual’s financial books; medical, mental health, employment, or drug-testing records; hair samples; fingerprints; and so forth. Under the USA PATRIOT Act’s secrecy requirements, institutions are explicitly barred from telling you that they turned over your information.

Student privacy: The government has focused heavily on obtaining the confidential information of Arab and Muslim students. The USA PATRIOT Act facilitated those efforts by sanctioning police and FBI access to student records, previously private, from colleges and universities. The act also provided greater access to information under the National Education Statistics Act, which collects vast amounts of identifiable data for statistical research purposes. Until now, such information has been strictly confidential without exception.

To summarize, important Fourth Amendment rights were looted under USA PATRIOT in the name of “fighting terror.” But this is only one aspect of that legislative heist. Similar to the house that Jack built, the USA PATRIOT Act itself was but one part of the administration’s overall attack. From detainees to military tribunals, from “terrorizing” dissent to denying attorney-client privilege, the scope of the attack on civil liberties has been breathtaking. Those currently in power are attempting to undo democratic rights that the American people have enjoyed for 225 years as a result of the popular gains of the American Revolution.

Unconstitutionality and the courts

Several questions logically arise from a close examination of the USA PATRIOT Act: Isn’t all of this stuff unconstitutional? Won’t these provisions get overturned in the courts? What about the Supreme Court?

The answer is that this stuff is indeed unconstitutional. But that fact is irrelevant to the legally enforceable determination of constitutionality, which is pretty much whatever the Supreme Court says it is.

The current, highly conservative Court has been undermining constitutional rights (in particular, the Fourth Amendment) for years. It is unlikely that the Court would suddenly change its spots over USA PATRIOT. This is especially true since an antiñUSA PATRIOT decision would mean opposing the alleged national legislative embodiment of the “popular will.” Constitutional expert Laurence Tribe explains:

[I]t would be a terrible mistake for those who worry about civil rights and liberties to pin too much hope on the judiciary in times of crisis. Even assuming general agreement in hindsight that a government practice violated the Constitution, the likelihood that the Supreme Court would say so in the face of strong opposition by Congress, the president, and a public caught in the fog of war is very low indeed. And the odds that judges will second-guess a determination by the nation’s commander in chief that a given measure is truly demanded by military necessity are particularly slim.[53]

Legal challenges to USA PATRIOT should of course be supported. But they cannot form the basis of an effective strategy. By their nature, court challenges must be piecemeal and prolonged. They will require many years to sort out, and even then, success is dubious, especially without a change in the overall political climate.

If the Bill of Rights is to be upheld, the people must do it, through mass action.

Forced retreat of McCarthyism and 1960s repression

You can cage the singer but not the song.
– Harry Belafonte

If the sweep of today’s attack on civil rights leaves the reader demoralized, it should be remembered that both McCarthyism and the pervasive repression of the 1960s were eventually beaten back. In both cases, the attacks were far worse than those we are witnessing today. In both cases, they were rolled back by mass popular and working-class struggle–in particular, the civil rights movement.

Fear, which had been entrenched, ceased to exist. The nation watched the South, as courage multiplied and thousands stood up to fire hoses and attack dogs. “Southern justice”–daily, officially sanctioned beatings, murders, lynchings, fire bombings, cross burnings, firings, and persecution–could not reduce the magnificent courage of Southern Blacks, who simply could bear no more.

Their courage was infectious; the nation was transformed. Eventually, even the McCarthyite attack on the right to dissent was reversed. McCarthyism did not end, as many assume, with McCarthy’s individual demise, following his unsuccessful attacks on Republicans and the army. “McCarthyism” had begun long before McCarthy, and it survived the death of his political career. The House Un-American Activities Committee (HUAC) continued its traveling road show long after it lost its most infamous showman.

But when HUAC met in 1960 in San Francisco, hundreds of students (and others) protested. The demonstrators were clubbed and washed down the marble steps of city hall, “drenched in water and blood”[54] by police fire hoses. Sixty-eight were arrested. The students had been inspired by the magnificent example of their Black brothers and sisters in the South. So were the 5,000 demonstrators who turned out to support the protesters the next day, mockingly chanting “Sieg Heil! Sieg Heil!”

The San Francisco protests, in turn, inspired anti-HUAC demonstrations on other campuses, which quickly spread. The power of HUAC and McCarthyism were forever broken, and people were, simply, no longer afraid.

Having lost its official power, McCarthyism effectively went underground and became a pervasive, covert governmental campaign to sabotage the social justice movements of the 1960s. COINTELPRO was one of dozens of such spying and disruption programs run by the FBI, the CIA, the National Security Agency, and many other official federal and state agencies, often in close cooperation with right-wing groups and paramilitary organizations.

But that ubiquitous repression was eventually rolled back by the same popular power that had eviscerated HUAC–a united, massive and mobilized social movement from below, inspired by the heroic leadership of Blacks in the South.

Meanwhile, American imperialism faced another defeat–its greatest ever.

Colossus crumbles: The legacy of Vietnam

A champion named Goliath ... came out from the Philistine camp ... David put his hand into the bag and took out a stone, hurled it with the sling ... Then David ran and stood over him; with the Philistine’s own sword (which he drew from its sheath) he dispatched him and cut off his head.
– I Samuel, 17:4, 49, 51

Now we have a problem in making our power credible, and Vietnam is the place.
– John F. Kennedy, 1961

This article begins and ends with Vietnam. We started with the premise that imperialist military aggression abroad means increased political domestic repression at home. Undoing the “Vietnam syndrome”–by reestablishing the United States as Cop of the World internationally, and by reestablishing extensive counterintelligence and repression internally–is the goal of the current war on terrorism.

Undoing the domestic and international shackles of the Vietnam syndrome is of crucial importance to U.S. ruling interests–and has been ever since they overcame the shock of their defeat in Southeast Asia three decades ago. But Vietnam has lessons for us as well, and they are of earthshaking proportions.

The overriding lesson of Vietnam is that the American ruling class is not invincible. A tiny, underdeveloped, poor, peasant country beat the greatest military power in the world. U.S. imperialism can be, and has been, defeated–precisely by mass popular resistance movements in solidarity with one other.

So while the attack on democracy has been so sweeping that it is easy to become demoralized, it is crucial to remember that many of the repressive measures outlined above represent plans for what American capitalism would like to do, and not necessarily what it is actually capable of accomplishing. Appropriating legal authority in a written document is not the same as enjoying actual authority–i.e., power–to carry out its provisions.

The extent to which the American ruling class proves able to execute its domestic war on democracy will depend, ultimately, on the balance of social forces, that is, in struggle. There will be a fightback–pockets of opposition have already surfaced, even within the culture of fevered patriotism. Striking public employees in Minnesota defiantly repelled a barrage of vilification that portrayed them as unpatriotic. Striking teachers in New Jersey stuck to their guns, figuratively speaking, even as they were carted off in handcuffs and accused of indifference to September 11. Three thousand people have signed the academic freedom petition. Popular and international outrage has forced the Bush administration to back off somewhat on several repressive measures: mass “interview” roundups of young Arabs, military tribunals, and withholding Geneva convention protections from prisoners captured in the Afghan war. It seems fair to predict further growth in opposition–especially as the system’s Enronian core gains exposure.

The movement that develops in opposition to today’s attack on civil liberties will be integral to the antiwar movement. Vietnam taught us that the movement for civil rights and the movement against the war, the movement against imperialism and the resistance to domestic repression all develop in sync. Each feeds the other.

Deep popular cynicism about the American ruling class and the U.S. government remains the legacy of Vietnam and Watergate. Despite patriotic pro-war amnesia, that popular cynicism explodes anew when inevitable, fresh scandals like Enron unfold. The huge repercussions of the collapse of Enron, when combined with the voracious transfer of wealth to the richest few in the last three decades, the destruction of the social safety net, and massive layoffs, create domestic conditions that are potentially more explosive than they were in the sixties.

As the new era of increased U.S. imperialist aggression unfolds, in the form of “unlimited” war, we must expect increasingly repressive, domestic, antidemocratic attacks on workers, immigrants, Blacks, dissenters, and the left. We need to be prepared and effectively organized to resist. We must walk a fine line between realistically assessing the full scale of the attacks and, at the same time, neither becoming demoralized nor paranoid.

As we build a movement against its attacks, the American ruling class will face opposition from other quarters as well. People throughout the world will not allow their lives and freedoms to be sacrificed and subordinated in order to further enrich America’s rulers. The history of modern imperialism is also the history of popular resistance to it. New imperialist aggressions will eventually be met by new anti-imperialist struggles.

As we build links between those struggles and our own, we must remember the great historic legacy of Vietnam: U.S. imperialism is not invincible. It can be–and has been–beaten.

* * *

Notes

1 The speech, “Beyond Vietnam: A time to break silence,” is available for download from the King Papers Project at www.stanford.edu/group/King/home_new.htm.

2 Eugene V. Debs, “The Canton, Ohio, speech,” International Socialist Review, November–December 2001, pp. 85–86.

3 The quotation is from a Council on Foreign Relations study to help define U.S. aims in the Second World War, cited in Ashley Smith, “World War II: The good war?” International Socialist Review, Winter 2000, p. 55.

4 Lawrence S. Wittner, Cold War America: From Hiroshima to Watergate (New York: Holt, Rinehart and Winston, 1978), p. 389.

5 This unity of aggression abroad and repression at home has operated in every war in our nation’s history. Thousands were jailed during the First World War under the Espionage Act, which made it illegal to interfere with the draft (and therefore to advocate opposition to the war). A massive national propaganda campaign was waged, and those with “negative thoughts” were considered highly suspicious. State and corporate persecution decimated the militant, massive Industrial Workers of the World (IWW).

In the Second World War, 120,000 Japanese Americans, law-abiding innocents, were forced to survive for years in concentration camps on American soil. During the Cold War, the nightmare of McCarthyism engulfed the nation. The Vietnam era brought, and uncovered, massive domestic government spying on the American people. Not only surveillance, but official criminal sabotage burgeoned–as state agents attempted to shut down a broad range of (completely legal) activity.

Unfortunately, space limitations prevent exploration here of the fascinating parallels (and divergences) between these historical periods and today. For further information, see Howard Zinn, A People’s History of the United States (New York: HarperCollins, 1980); Philip S. Foner, History of the Labor Movement in the United States, vols. 7, 8 (New York: International Publishers, 1987); Wittner’s Cold War America; Smith’s “World War II: The good war?”; Ken Matsumura, “The hidden history of America’s concentration camps,” International Socialist Review, August–September 2000; David Caute, The Great Fear: The Anti-Communist Purge under Truman and Eisenhower (New York: Simon and Schuster, 1978); Victor S. Navasky, Naming Names (Penguin Books, 1981); and William Preston, Aliens and Dissenters: Federal Suppression of Radicals, 1903–1933 (New York: Harper and Row, 1966).

6 Alan Sipress, “U.S. says war effort remains intense,” Washington Post, January 27, 2002.

7 The actual name of the act is Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, H.R. 3162. The full text is available on the Electronic Privacy Information Center Web site at www.epic.org/privacy/terrorism/hr3162.html.

8 The phrase is Eduardo Capulong’s, from a talk entitled “Savaging civil liberties,” delivered in San Francisco in November 2001.

9 The addition of the Bill of Rights was the only way that merchants and slaveholders could gain sufficient support for the more conservative Constitution they favored. See the interview with Ray Raphael, author of A People’s History of the American Revolution, in this issue of the ISR for a fuller discussion of this.

10 Due process is an express protection of the 14th Amendment; it is also implicit in the Fourth Amendment, according to case law interpretation by the courts.

11 American Civil Liberties Union, “Immigration and civil liberties,” available on the ACLU Web site at www.aclu.org.

12 Ashcroft put forward many theories to justify not releasing detainees’ names. One was to protect their “privacy rights”–far be it from him, he said, to create a “blacklist” (Neil A. Lewis and Don Van Natta Jr., “Ashcroft offers accounting of 641 charged or held,” New York Times, November 28, 2001; Todd S. Purdum, “Ashcroft’s about-face on the detainees,” New York Times, November 28, 2001). This “for your own good” mixture of hypocrisy and gall is commonly used to rationalize rights violations. Blacklisted actors under McCarthyism were often told they were “too good for the part” [Ellen Schrecker, The Age of McCarthyism: A Brief History with Documents (Boston: St. Martin’s Press, 1994)]. J. Edgar Hoover’s justification for not disclosing FBI files in court (which he feared might open the Bureau to condemnation) was, amazingly, “I would not want to be a party to any action which would ‘smear’ innocent individuals for the rest of their lives” (Caute, p. 115). And solicitous authorities justified the illegal detention of IWW members during the First World War on grounds that they needed to be “protected against injury” (Preston, p. 107).

13 Naftali Bendavid, “FBI: Terrorists had no U.S. aid; Investigators face tough questions from Congress,” Chicago Tribune, March 5, 2002.

14 “Rep. Saxby Chambliss: Arrest every Muslim that enters Georgia,” CounterPunch Wire, November 21, 2001.

15 Jo Thomas, “Hearing for Pakistani student,” New York Times, November 15, 2001; Sharon Smith, “Washington’s new witch-hunt,” Socialist Worker, November 30, 2001.

16 David Firestone and Christopher Drew, “Al Qaeda link seen in only a handful of 1,200 detainees,” New York Times, November 29, 2001.

17 Sara Rimer, “Raid and investigation unite city for immigrant,” New York Times, December 8, 2001.

18 William Glaberson, “Legal experts question legality of questioning,” New York Times, November 30, 2001.

19 Fox Butterfield, “Police are split on questioning of Mideast men,” New York Times, November 22, 2001; Jodi Wilgoren, “Deadline is extended in questioning of foreigners,” New York Times, December 4, 2001; “Third Oregon city balks at aiding interviews,” New York Times, November 30, 2001.

20 “A travesty of justice,” New York Times, editorial, November 16, 2001.

21 See the decision in Ex Parte Milligan, 71 U.S. 2 (1866); Kenneth Roth, executive director, Human Rights Watch, “HRW urges due process protections: Letter to Secretary Rumsfeld on military commissions,” CounterPunch, December 20, 2001.

22 Many adequate legal alternatives already exist for the pursuit and prosecution of “terrorists.” For more information, see Center for National Security Studies, “The FBI’s domestic counterterrorism program,” April 26, 1995, available on the Center for Democracy and Technology Web site at www.cdt.org; Bill Keller, “Trials and tribulations,” New York Times, op-ed, December 15, 2001; Alan Dershowitz, “Military justice is to justice as military music is to music,” Village Voice, November 27, 2001; Nat Hentoff, “Abandoning the Constitution to military tribunals,” Village Voice, November 27, 2001; James Orenstein, “Rooting out terrorists just became harder,” New York Times, December 6, 2001; and the Immigration and Nationality Act, 8 U.S.C., Sections 1226 and 1227(a)(4), 8 CFR, Sec. 241.

23 Anthony Lewis, “Right and wrong,” New York Times, November 24, 2001, and “Wake up America,” New York Times, November 30, 2001.

24 Laurence H. Tribe, “Why Congress must curb Bush’s military courts: Trial by fury,” The New Republic online, December 10, 2001. “[I]n reality, if this can be done to noncitizens, it can be done to citizens, as well,” said David Cole, constitutional law professor at Georgetown University Law Center, quoted in David A. Love, “Military tribunals are a threat to the Constitution,” November 28, 2001, available on the Progressive Media Project Web site at www.progressive.org/mediaproj.htm. Note also that “a unanimous [Supreme Court] ruled that both citizens and noncitizens lose the protections of the American legal system when they become enemy agents in wartime” (Robin Toner, “Civil liberty vs. security: Finding a wartime balance,” New York Times, November 18, 2001).

25 Federal judges are appointed for life. The military officers who would serve as tribunal judges (and who might not even be lawyers) would be depen-dent for promotion–before, during, and after the trial–upon the same superiors who brought the charges and were overseeing the process.

26 Courts-martial require unanimity to impose the death penalty. Bush’s order requires a two-thirds majority. Thus, on a three-judge panel, two of the three judges could take a defendant’s life. Furthermore, the two-thirds requirement is actually less than two-thirds of the whole panel. A two-thirds majority of those judges present at the time of the vote is required, for which only a majority of the panel needs to be present.

27 Tribe, “Trial by fury.”

28 Anne Gearan, “ABA backs tribunals with conditions,” Associated Press, February 4, 2002.

29 Ann Davis, “Attorney-client confidentiality waived in rule,” Wall Street Journal, November 9, 2001.

30 Edward S. Herman and David Peterson discuss “the superterrorists’ anti-terrorist agenda,” in “Who terrorizes whom?” available on the Political Research AssociatesWeb site at www.publiceye.org.

31 The term “terrorism” has been used this way at least since Reagan [Frank Donner, The Age of Surveillance: The Aims & Methods of America’s Political Intelligence System (New York: Alfred Knopf, 1980)], and especially since Clinton (Kit Gage, “Demonizing dissent,” an updated version of which is available on the Political Research Associates Web Site at www.publiceye.org.

32 Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States Senate, 94th Congress, 2nd Session, 1976. Excerpts from this report were available online at www.derechos.net/paulwolf/cointelpro/cointel.htm, as of March 8, 2002.

33 Attorney General John Ashcroft, quoted in Susan Milligan, “Critics aid terrorists, AG argues,” Boston Globe, December 7, 2001.

34 Meanwhile, in a symmetrical move, the administration welcomed Enron in on precisely those grounds. The U.S. National Security Council (NSC), which handles national security “emergencies,” recently acted as a “concierge service” for Enron, according to the Washington Post. The NSC set up high-level meetings for Enron to pressure Indian government officials in Enron’s scandalous energy dealings in that country. Among other things, American tax dollars helped Enron to pay Indian police to brutally beat villagers who were protesting the scarce water that is a consequence of Enron’s Dabhol power plant.

35 Louis J. Freeh, “Statement for the record on the threat of terrorism to the United States before the United States Senate Committees on Appropriations, Armed Services, and Select Committee on Intelligence,” May 10, 2001, avialable online at www.fbi.gov.

36 Abby Scher, “The crackdown on dissent,” The Nation, January 19, 2001; People’s Law Collective, news release, February 5, 2002.

37 See, for instance, the photographs compiled on the New York City Independent Media Center Web site at www.nyc.indymedia.org/front.php3?article_id=19654&group=webcast.

38 Freeh, “Statement for the record”; Scher, “The crackdown”; Chip Berlet, “The hunt for Red Menace,” February 1993, and “Attacks on Greenpeace and other ecology groups,” both available on the Political Research Associates Web site at www.publiceye.org.

39 David Sanger, “Bush, on offense, says he’ll fight to keep tax cuts,” New York Times, January 6, 2002.

40 Quotations and descriptions of incidents taken from Kris Axtman, “Political dissent can bring federal agents to your door,” Christian Science Monitor, January 8, 2002. Also see Christopher Brauchli, “Ashcroft sets tone at heavy-handed Justice,” The Daily Camera, March 2, 2002.

41 American Council of Trustees and Alumni (ACTA), Defending Civilization: How Our Universities Are Failing America and What Can Be Done About It, available for download on ACTA’s Web site at www.goacta.org.

42 Even as a floodtide of pro-war patriotism continues to sweep the nation, ACTA makes the preposterous claim that antiwar students are free to speak out on campuses, while those who support the war are not (Mary Beth Marklein, “Foreign policy, free speech are under fire on campuses,” USA Today, November 15, 2001).

43 To read the text of the petition, to view a list of signatories, or to sign on, visit www.academicfreedomnow.org on the Web.

44 Again, the media’s crucial role is omitted for considerations of scope and space, not for its relative significance.

45 For a discussion of the act’s vicious attack on immigrants and detainees, see text accompanying notes 11–18 above.

46 USA PATRIOT Act, H.R. 3162, section 802. Under the act’s language, the activity in question must also “violate the laws of the United States or any State” to qualify as “terrorist.” Presumably, however, the activity involved would violate the USA PATRIOT Act, and therefore this clause seems redundant.

47 American Civil Liberties Union, “How the USA-PATRIOT Act allows for detention and deportation of people engaging in innocent associational activity,” available on the ACLU Web site at www.aclu.org.

48 American Civil Liberties Union, “How the USA-PATRIOT Act Puts the CIA Back in the Business of Spying on Americans,” October 23, 2001, available on the ACLU Web site at www.aclu.org.

49 The author is indebted to the American Civil Liberties Union for this and several other illustrations that explain the effects of the new legislation.

50 For more information on wiretap issues, see the Center for Democracy and Technology Web site at www.cdt.org/wiretap. For general information about the current attacks on civil liberties, see Political Research Associates, “Security for activists: Overcoming repression,” online at www.publiceye.org/liberty/Security_for_Activists.htm. For more information on computer and e-mail surveillance, see Bob Port, “FBI software program records each keystroke,” Seattle Times, December 18, 2001, and Elinor Mills Abreu, “FBI confirms ‘Magic Lantern’ project exists,” Reuters, February 12, 2002.

51 American Civil Liberties Union, “How the USA-PATRIOT Act limits judicial oversight of telephone and internet surveillance,” available on the ACLU Web site at www.aclu.org.

52 Jonathan Krim and Robert O’Harrow Jr., “Bush signs into law new enforcement era; U.S. gets broad electronic powers,” Washington Post, October 27, 2001.

53 Tribe, “Trial by fury.”

54 Wittner, p. 200; W.J. Rorabaugh, Berkeley at War, the 1960s (New York: Oxford University Press, 1989).