WASHINGTON -- Due process and privacy guaranteed under the U.S. constitution, open government, and respect for human rights around the world are taking a battering from the administration of U.S. President George W. Bush in prosecuting its "war on terrorism," according to a new report released today by a leading international human rights group.
"The U.S. government can no longer promise that individuals under its authority will be subject to a system bound by the rule of law," according to the report by the New York-based Lawyers Committee for Human Rights (LCHR). "In a growing number of cases, legal safeguards are now observed only so far as they are consistent with the chosen ends of power."
The report, "Assessing the New Normal: Liberty and Security for the Post-September 11 United States," comes amid growing opposition--including in the U.S. Congress--to a number of the provisions in the USA Patriot Act enacted in October, 2001, less than two months after the September 11 terrorist attacks on New York and the Pentagon.
Jennifer Coffee holds up a sign critical of the USA Patriot Act during a demonstration in front of the New York Stock Exchange,Tuesday, Sept. 9, 2003. She was among several hundred protesters who gathered as Attorney General John Ashcroft delivered a speech defending the Patriot Act. (AP Photo/Scout Tufankjian)
The phrase, "new normal, is taken from a speech by Vice President Dick Cheney shortly after the attacks, which predicted that security measures recommended by the administration would become "permanent in American life," creating a "new normalcy," as he put it at the time.
Democrats and some Republicans are also criticizing a set of new administration proposals that would expand the government's counter-terrorism powers and the use of the death penalty to punish terrorism-related crimes. Opponents say a number of these provisions will further erode constitutional due-process guarantees if they are enacted.
LCHR's new report focuses specifically on three areas which it claims have altered "the relationship between the U.S. government and the people it serves--changes that have meant the loss of particular freedoms for some, and worse, a detachment from the rule of law as a whole."
The first of these deals with what the report calls "a sharp departure from the rule-of-law principles guaranteeing that like cases will be treated alike, and all will have recourse to fair and independent courts as a check on executive power."
Since Sept. 11, the administration has established a set of extra-legal institutions that are designed to bypass the judicial branch of government. Most famously, the some 600 detainees held at the U.S. military base in Guantanamo Bay, Cuba, as well as other prisoners held by the U.S. in various overseas facilities, have been denied all recourse to U.S. courts, while judgments by the military commissions to be set up to try them cannot be appealed to any independent civilian court.
Moreover, the administration has already asserted that it has no obligation to treat these detainees alike. Thus the Pentagon announced recently without explanation that six current detainees--including two British citizens and one Australian--will be eligible to be tried by military commission. After strong protests from their two governments, the administration promised that the three men--unlike the other prisoners--will not be subject to the death penalty; nor will the conversations with their attorneys be monitored. Why these three should be treated differently from the other prisoners has not been explained.
At the same time the administration is reducing the power of the courts over those cases which have actually come before them. Thus, the Justice Department has insisted that any U.S. citizen may be detained indefinitely without charges or access to counsel if it presents "some evidence" that he is an "enemy combatant," a status that has yet to be defined.
For example, the Department has argued that Jose Padilla, a U.S. citizen who has not been able to communicate with his attorney or family since he was arrested 15 months ago, should not be allowed an opportunity to rebut evidence that the government presents. The Department has even defied a federal court order to permit Padilla access to his counsel.
In addition, the administration has treated similar cases involving terrorist suspects in entirely different ways without explaining why.
Thus, some deemed "enemy combatants" have been held in military brigs where, like Padilla, they have been deprived of all due-process rights, while others have been subjected to criminal prosecution where due process is guaranteed. The administration has accused both John Walker Lindh, the so-called "American Taliban," and Yaser Hamdi of participating in hostilities against the United States in Afghanistan. Both are U.S. citizens captured in Afghanistan at the same time and handed over to U.S. forces there. Yet the administration pressed criminal charges against Lindh through the normal criminal justice system, while Hamdi has been held in incommunicado detention for 16 months.
Moreover, the administration has assumed the power to abruptly and without explanation move suspects from one jurisdiction to another. Just before his long-scheduled criminal trial, one defendant, Ali Saleh Kahlah al-Marri, was designated an "enemy combatant" and denied due-process rights. The decision followed a series of adverse procedural rulings in the prosecution. The Justice Department has hinted it may do the same with Zacarias Moussaoui if it loses some pre-trial court decisions.
A second focus of the report addresses the increasing secrecy that characterizes the administration's approach to security, a secrecy that contrasts sharply with its insistence that it should have unfettered access to personal information.
The Justice Department has continued to defend provisions of the USA Patriot Act that allow the FBI to secretly access personal information of citizens (including library medical, education, internet, telephone and financial records) "without having to show that the target has any involvement in espionage or terrorism." To compel the surrender of such records, the FBI need only assert that it is part of an investigation "to protect against international terrorism or clandestine intelligence activities." Moreover, the Act makes it a crime for the service provider to inform the target of the investigation, a provision that has provoked outright civil disobedience by public librarians in particular.
And while the government asserts the right to find out more about individuals on demand, it is also withholding more information about its own activities as well as those of its predecessors. According to the National Archive and Records Administration, the number of classification actions by the executive branch rose 14 percent in 2002 over 2001, while declassification--the release of previously secret documents--last year fell to the lowest level in seven years.
The new report also includes sections on the treatment of immigrants and refugees who, in contrast to previous years, are assumed to be a "primary national threat," according to LCHR, and on the impact abroad of the administration's failure to adhere to rule-of-law principles.
"Terrorism has become the new rubric under which opportunistic government seek to justify their actions, however offensive to human rights," according to the report. Many authoritarian and some democratic governments, the report says, have enacted sweeping "anti-terrorist" legislation, many provisions of which dispense with due process standards. At the same time, the administration has helped to undermine the power of independent courts in countries, including Bosnia and Malawi, where it spirited individuals out of the country in defiance of court rulings.
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