What does a world without civil liberties look like?

From the Restore Fairness blog-

There are many examples of the steady dissolution of human rights in this post-9/11, “War on Terrorism” age in the United States. Racial profiling and the practice of preventive prosecution have disillusioned many who have traditionally seen the U.S. as a place where civil liberties thrive and the justice system is fair. Racial and religious profiling have become major causes for concern, and that is just one aspect of the web of increasingly stringent laws and security practices that have proliferated life in America since 9/11. The tragedy of that ill-fated day has translated into a continued state of paranoia, where basic values are ignored in the face of a potential or assumed threat.

One such story is that of Syed Fahad Hashmi, a U.S. citizen who has been through the worst of the American detention system after being accused of conspiring to provide material support to terrorism. This “material support” involved letting an acquaintance stay with him, an acquaintance who later delivered winter clothing to Al Qaeda.

Hashmi’s story was recently retold in a compelling piece by his former Brooklyn College (CUNY) professor Jeanne Theoharis for The Chronicle of Higher Education. According to the account, Hashmi was a devout Muslim and very politically active, regularly voicing his criticisms of American policies in the Muslim world. While pursuing his master’s in London, Hashmi hosted an acquaintance – Mohammed Junaid Babar – who had brought luggage that he later handed over to an Al Qaeda leader in South Waziristan, in Pakistan. Hashmi was arrested on June 6, 2006 and held in custody for 11 months until his extradition to the United States. Hashmi was then placed in solitary confinement in the Metropolitan Correctional Center in lower Manhattan, at first with some facilities. However, five months later, he was put under Special Administrative Measures (SAMs), a measure that severely restricts a prisoner’s contact with the outside world and removes all sense of privacy. Under SAMs, Hashmi’s detention was described as follows-

[Hashmi] was allowed no contact with anyone outside his lawyer and, in very limited fashion, his parents—no calls, letters, or talking through the walls, because his cell was electronically monitored. He had to shower and relieve himself within view of the camera. He was allowed to write only one letter a week to a single member of his family, using no more than three pieces of paper. One parent was allowed to visit every two weeks, but often would be turned away at the door for bureaucratic reasons. [Hashmi] was forbidden any contact—directly or through his lawyers—with the news media. He could read only portions of newspapers approved by his jailers—and not until 30 days after publication. Allowed only one hour out of his cell a day, he had no access to fresh air but was forced to exercise in a solitary cage.

The government cited Hashmi’s “proclivity for violence” as a justification for the measures, even though he did not have a criminal record, did not exhibit any signs of violence or have a demonstrated reach outside of the prison. Over the next three years, Hashmi’s lawyers appealed the SAMs over 30 times, being rejected each time for one implausible reason after another. On April 27, 2010, Hashmi agreed to a plea bargain, with the government, of one count of conspiring to provide material support to terrorism. He was sentenced to 15 years in prison not just for luggage that someone else had brought into his apartment, but also because of his “anti-American jihadist ideology,” according to Judge Preska. Hashmi made his first public statement in four years, thanking everyone, both Muslims and non-Muslims, for their support. Hashmi was later transferred to the federal high-security prison in Florence, Colorado and in March this year moved into its Supermax ADX facility, the most draconian prison in the federal system. Meanwhile, his once acquaintance Babar, who was the one to physically deliver winter clothing to Al Qaeda, was sentenced to “time served” (four and a half years out of a possible 70) for his “exceptional” service and because he “began co-operating even before his arrest.

While Hashmi’s true intentions – i.e. whether he was aware of his acquaintance’s Al Qaeda connection or if he had ever considered that route himself – are unknown, the outcry against his detention is more about the authorities completely denying him his right to basic human rights and civil liberites. This becomes even more deplorable especially since he is a U.S. citizen imprisoned in his own country. Hashmi’s case echoes other stories of racial and religious profiling that received much media coverage in the aftermath of 9/11. One of the stories was of Mohammed Salman Hamdani, who went missing on 9/11. Widespread speculation labeled him as a terrorist and an accomplice to those who carried out the attacks. However, a few months later, his remains were found near the World Trade Center wreckage and it became clear that he had died while being part of the rescue efforts.

Institutionalized racial and religious profiling deeply impacts the community at large and influences the public perception of specific groups that have been targeted by government and national security. In the ten years since 9/11, Arab-Americans and South Asians have increasingly become the targets of hate crimes around the country. In a recent instance, two elderly Sikh men were gunned down in a suburb of Sacramento without any provocation. The police indicated that there was a high chance of hate motivation for the crime.

Representative Peter King (R-NY), who had recently triggered much uproar about his Congressional hearings targeting Islam in the United States, has now added ethnic profiling to his earlier agenda. In a public television appearance on April 5, King stated that “a person’s religious background or ethnicity can be a factor, one of the things to look at.” This blatant push for religious and racial profiling instead of behavioral profiling is a foreboding sign that the issue will not be going away anytime soon. Until there is a change in this position, unfortunate stories of extreme incarceration, wrongful accusations and hate crimes will continue.

Hashmi’s former professor, Theoharis, sums up her thoughts on America’s tenuous handling of the terrorism threat, stating-

…Seeing that humanity is at odds with the political zeitgeist, where endless searches and small bottles of shampoo and fear-mongering subway posters have become the currency of national security. Where a growing obsession with homegrown terrorism means that we are again willing to chisel away the Bill of Rights in the name of protecting America.

This disintegration of the Bill of Rights for the sake of “national security” points to a future where the state of paranoia may quite likely run every facet of our lives. Such a dystopic future, where basic American values and human rights have been compromised, is the subject of Breakthrough’s ground-breaking new Facebook game, America 2049. In this alternate reality game, the player is tasked with the capture of a presumed terrorist and pushed to ask the question- What if? How close have we already come to America 2049? How can we work together—in real life—to build a better future? The game addresses issues such as racial profiling, religious intolerance, and sexual discrimination by presenting a scenario where wrong choices made today will adversely affect our future. And if the widespread cases of racial profiling and complete removal of civil liberties continue, as with the case of Hashmi, the virtual world of the future in America 2049 might come upon us much sooner than we think.

Photo courtesy of racism.conocimientos.com.ve

Obama's Ironic Legacy Might be That He Continued an Unconstitutional Act

 

by Walter Brasch

 

            The U.S. House of Representatives this week did something it should have done years ago—it blocked the continuation of three of the more controversial parts of the PATRIOT Act. The vote was 277–148 to continue the Act, but a 2/3 majority (284 of those voting) was necessary for the bill to move forward. The PATRIOT Act sections are scheduled to expire Feb. 28 unless further action is taken by Congress.

            The Republican leadership had placed the bill on an expedited agenda, believing it had the necessary votes. It didn't count on a loose coalition of liberals and extreme conservatives to oppose the Act. Twenty-six Republicans, including seven who are allied with the Tea Party, voted against the bill. Had those seven Tea Party members voted for the continuation, the bill would have passed.

            The PATRIOT Act was passed about six weeks after the 9/11 attacks. The 342-page bill was drafted in secret by the Bush Administration, had minimal discussion, and most members of Congress hadn't even read it when they voted for it. Only one of 100 senators and 66 of 435 representatives voted against it, claiming that it sacrificed Constitutional protections in order to give Americans a false sense of security. Most of the Act is non-controversial, an umbrella for previous federal law; the controversial parts taint the entire document.

            The PATRIOT Act's "sunset" clause required 16 of the most controversial parts to expire unless Congress renewed them before December 31, 2005. However, in July 2005, Congress voted to extend the entire law.

            The PATRIOT Act butts against the protections of six Constitutional amendments: the 1st (freedom of religion, speech, press, and assembly, and the right to petition the government for a redress of grievances), 4th (freedom from unreasonable searches), 5th (right against self-incrimination and due process), 6th (due process, the right to counsel, a speedy trial, and the right to a fair and public trial by an impartial jury), 8th (reasonable bail and freedom from cruel and unusual punishment), and 14th (equal protection guarantee for both citizens and non-citizens).

            The PATRIOT Act also violates Article I, Section 9 of the Constitution, which guarantees the right to petition the courts to issue a writ of habeas corpus to require the government to produce a prisoner or suspect in order to determine the legality of the detention. Only Congress may order a suspension of the right of the writ, and then only in “Cases of Rebellion or Invasion.” Congress did not suspend this right; nothing during or subsequent to the 9/11 attack indicated either a rebellion or invasion under terms of the Constitution.

            Among the provisions of the PATRIOT Act, which 277 House members apparently believe is necessary for American security, is Section 215, which allows the government to seize all library records of any individual. Apparently, the government believes that reading is just another part of a wide terrorist conspiracy. A white-haired grandmother who checks out murder mysteries from the library could be a serial killer, according to the government's logic.

            Several federal court cases, including decisions by the Supreme Court, with most of its members politically conservative, ruled that provisions of the PATRIOT Act are unconstitutional. Implementation of those rulings are slow or under appeal.

              Among organizations that oppose the PATRIOT Act are the ACLU, American Bar Association, American Booksellers Association, American Library Association, and the National Council of Churches.  Among liberals who have led opposition to the Act are Sen. Russ Feingold (D-Wisc.) and Rep. Dennis Kucinich (D-Ohio). Among conservatives opposing the Act are former House Speaker Newt Gingrich (R-Ga.), former Rep. Bob Barr (R-Ga.), who had been a U.S. attorney, Rep. Ron Paul (R-Tex) and Sen. Rand Paul (R-Ky.). Among conservative organizations that oppose the PATRIOT Act are the American Conservative Union, Free Congress Foundation, and the Second Amendment Foundation.

            Some of society's denser citizens have claimed that not only must the nation sacrifice some of its civil liberties in order to defeat terrorism, but that they personally have never had their own rights suppressed. Nevertheless, there are hundreds of cases of persons whose civil liberties have been threatened. In only the first three years after the PATRIOT Act was placed into law, there were about 360 arrests, with only 39 convictions, half resulting in jail sentences of less than 11 months, indicating minor infractions. Reports from the inspector general of the Department of Justice revealed that the government had consistently exceeded its authority to investigate and prosecute civilians under guise of the PATRIOT Act. Numerous arrests for non-terrorist activity include a couple aboard a flight who were charged as terrorists for having engaged in "overt sexual activity," and a woman who was jailed three months in 2007 as a terrorist for raising her voice to a flight attendant.

            In March 2010, President Obama signed a one-year extension on the Act, and now says he wants the Act to continue through 2013.

            And that may be the worst part of the President's legacy. The constitutional law scholar and professor, who has strong beliefs for human rights but who has not been forceful in speaking out against the Act's most heinous sections, is now a leading proponent to extend the very document that conflicts with his principles and the nation's Bill of Rights.

 

[Dr. Brasch is author of the critically-acclaimed America's Unpatriotic Acts, the first book to look in-depth at the PATRIOT Act and its effect upon American citizens. The book is available through amazon.com, as are his 15 other books, most on history and contemporary social issues.]

 

 

More Warrantless Searches on Their Way

First, the background courtesy of the American Civil Liberties Union:

The National Security Letter provision of the Patriot Act radically expanded the FBI's authority to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval.

Through NSLs the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand. Since the Patriot Act was authorized in 2001, further relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase.

The Justice Department's Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The inspector General has also found serious FBI abuses of the NSL power. The ACLU has challenged this Patriot Act statute in court in three cases.

Today, the Washington Post reported that the Obama Administration is seeking "to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation." According to the Post, the Administration wants to amend the existing section of the law that covers National Security Letters (NSLs) by adding "four words -- 'electronic communication transactional records' -- to a list of items that the law says the FBI may demand without a judge's approval."

Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."

This is the sort of thing that drives civil libertarians on the left to despair and frustration. What the FBI and the Obama Administration want is to force Internet Service Providers (ISPs) to turn over information about a user's traffic habits without a warrant. I have to ask just how difficult is it to seek a warrant? I understand the number of NSLs is now running at 30,000 to 50,000 a year but civil libertarians remain concerned after a 2007 Inspector General report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request.

Marc Ambinder of The Atlantic has more on the implications and the potential for abuse.

More Warrantless Searches on Their Way

First, the background courtesy of the American Civil Liberties Union:

The National Security Letter provision of the Patriot Act radically expanded the FBI's authority to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval.

Through NSLs the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand. Since the Patriot Act was authorized in 2001, further relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase.

The Justice Department's Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The inspector General has also found serious FBI abuses of the NSL power. The ACLU has challenged this Patriot Act statute in court in three cases.

Today, the Washington Post reported that the Obama Administration is seeking "to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation." According to the Post, the Administration wants to amend the existing section of the law that covers National Security Letters (NSLs) by adding "four words -- 'electronic communication transactional records' -- to a list of items that the law says the FBI may demand without a judge's approval."

Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."

This is the sort of thing that drives civil libertarians on the left to despair and frustration. What the FBI and the Obama Administration want is to force Internet Service Providers (ISPs) to turn over information about a user's traffic habits without a warrant. I have to ask just how difficult is it to seek a warrant? I understand the number of NSLs is now running at 30,000 to 50,000 a year but civil libertarians remain concerned after a 2007 Inspector General report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request.

Marc Ambinder of The Atlantic has more on the implications and the potential for abuse.

More Warrantless Searches on Their Way

First, the background courtesy of the American Civil Liberties Union:

The National Security Letter provision of the Patriot Act radically expanded the FBI's authority to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval.

Through NSLs the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand. Since the Patriot Act was authorized in 2001, further relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase.

The Justice Department's Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The inspector General has also found serious FBI abuses of the NSL power. The ACLU has challenged this Patriot Act statute in court in three cases.

Today, the Washington Post reported that the Obama Administration is seeking "to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation." According to the Post, the Administration wants to amend the existing section of the law that covers National Security Letters (NSLs) by adding "four words -- 'electronic communication transactional records' -- to a list of items that the law says the FBI may demand without a judge's approval."

Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."

This is the sort of thing that drives civil libertarians on the left to despair and frustration. What the FBI and the Obama Administration want is to force Internet Service Providers (ISPs) to turn over information about a user's traffic habits without a warrant. I have to ask just how difficult is it to seek a warrant? I understand the number of NSLs is now running at 30,000 to 50,000 a year but civil libertarians remain concerned after a 2007 Inspector General report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request.

Marc Ambinder of The Atlantic has more on the implications and the potential for abuse.

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