Issue #3
November 2001
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Commentary Since the last issue of New York Stringer appeared, our President and Attorney General have taken four major steps that risk ending freedom and the rule of law in the USA. These measures are such a radical departure from our national understanding of due process that their full enormity has not yet penetrated our consciousness.
The four measures are:
- A declaration proposing trial of (non-citizen) terrorists by secret military tribunal using secret evidence
- An order permitting detention of non-citizens in the US without trial and without identification
- Assertion of a right to eavesdrop on conversations between a defendant and his attorney
- FBI wholesale interrogation of US residents of Moslem or Middle Eastern background without any indication of connection to a crime or possession of specific information.
The first measure is all the more egregious in that the people to be tried under these Star Chamber conditions are to be those designated by the President, and the trial rules are to be set by the President.
The second measure is a domestic version of the Latin American custom of disappearing people.When people can be detained for an indefinite period, without charge or trial, without any obligation on the part of the government to disclose their arrest, without any habeus corpus protections, we have truly entered the realm of police state.
The third measure strikes deeply at the right to a fair trial and effective defense. How can a defense counsel prepare his case without the ability to converse freely and confidentially with his client.
The fourth measure dismantles the Constitutional assumption that we are a nation of individuals, responsible for our own actions and only our own actions. This goes beyond racial profiling and is well into guilt by association, or even guilt by genetic heritage.
Defenders of the Administration's policies say we are at war, and that these measures do not exceed others taken during periods of war, and are a necessary part of the President's powers during a grave national emergency. Furthermore, it is noted, most of these measures are directed at non-citizens. We are assured that the rights of citizens have not been diminished.
Leaving aside the fact that most of the measures pointed to as precedents for the current policies have been declared unconstitutional or resulted in reparations to the victims once the wartime hysteria had passed, the assumption underlying the defense of the Bush edicts is that we are, in fact, at war. War implies a military threat by another country to the very existence of our country, our government and our people. The loss of life at the World Trade Center and the Pentagon was staggering. Bin Laden and Co. flatter themselves that they are at war with us, but they are an organized criminal conspiracy hiding out in an unfriendly nation, which justifies our military actions in Afghanistan.
The Constitution reserves to Congress the power to declare war, it does not leave it to the President to decide. Calling something a war does not make it a war. Is the "war on drugs" a war? Was the "war on poverty" declared by President Johnson a war? Can we, as a free people, afford to allow a President to suspend our freedoms merely on his own declaration that we are at war?
The Administration measures enlarge an already great rent in our system of justice, the concept (approved by the Rehnquist court) that non-citizens on our soil have no rights that we are obliged to respect. It is ungenerous to resident or visiting aliens, and dangerous to us as citizens. The precedents having been set and approved, it is no large step to extending this concept to citizens.
We are not at the beginning of a slippery slope into tyranny. We are already sliding down it, and gathering speed. Be afraid.
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