THE ASSAULT ON CONSTITUTIONAL RIGHTS--AN UPDATE WITH STRATEGIC CONSIDERATIONS
Emile Schepers, Program Director, Chicago Committee to Defend the Bill
We in the USA are facing the biggest crisis in constitutional rights
since the McCarthyism period of the 1950s. Many are seeing this as
a response to the terrorist attacks of September 11 and the possibility
that there may be more such actions on the way. However, a survey
of recent history shows that this is a fallacious viewpoint. The
government is not responding to a special crisis, it is playing a deep
game with a long-term strategy. And that is much more worrisome than
if it were a case of over-reaction to an unprecedented terrorist attack.
In this piece, I review what the trends toward repression actually are,
and present some ideas for priority actions in defense of First Amendment
and due process rights enshrined in the Bill of Rights of the US Constitution.
My hope is that this stimulates discussion about strategy specifically.
SITUATION PRIOR TO 9-11
We must remember that even before 9-11, there was a dangerous trend
toward restricting constitutional rights. Already in the 1970s,
after the revelations about COINTELPRO in congressional hearings had moved
things in a direction favorable to constitutional rights, the Trilateral
Commission was pushing the other way, toward more repression. The
Trilateral Commission Report warned --accurately as it happened--that within
a short time the economic expectations of the world's peoples would begin
to exceed what the corporations and governments would be willing to concede,
and that this would make necessary the curtailment of democratic rights
worldwide so as to protect the status quo. Prophetic words!
In 1996, two pieces of legislation were passed by Congress and signed by
President Clinton which had serious and negative constitutional rights
implications. These were the Anti-Terrorism and Effective Death Penalty
Act, and the Illegal Immigration Reform and Immigrant Responsibility Act.
These two pieces of legislation, taken together, had the following
negative impacts on constitutional and civil rights:
In the late 1990s, the government showed signs of using civil
forfeitures in politically tinged cases. Civil forfeitures entail the seizure
of the assets of an individual or group without a judicial finding of guilt.
The person or organization whose property was seized must then sue in civil
court to get the property back, and has to prove that they were NOT criminals
(i.e. presumption of innocence is reversed).
They criminalized humanitarian aid to organizations the government chose
to classify as"terrorist".
They made possible the deportation of non-citizens on the basis of secret
evidence, which neither the accused nor his/her attorney could see.
They cut non-citizens off from a wide variety of government services and
programs. This put the foreign-born in an even more vulnerable
personal situation, which always chills dissent, because it makes loss
of employment (which often happens to people who speak truth to power)
a more serious matter for oneself and especially for one's family.
As the 1990s ended, the world began to see a massive build-up
of protest against corporate globalization, which more or less was what
the Trilateral Commission had forecast. From Seattle to Genoa,
hundreds of thousands of people of a variety of backgrounds protested the
degradation of human life and the environment that was caused by corporate-promoted
trade and investment policies. These protests, on a scale that had
not been seen in the USA in quite some while--since the days of the Vietnam
War, in fact-- threw a scare into the state at all levels, motivating a
beefing up of police capacity to spy on and disrupt dissent. This
is also an international trend, as the actions of Italian authorities toward
the Genoa protests has shown.
Also from the late 1990s on, there was an effort, evidently orchestrated
by the FBI, to remove legal restrictions on police surveillance of activities
protected under the First Amendment. In Chicago, the city went to
court in 1997 to gut the 1981 Alliance/ACLU Red Squad Consent Decree, and
eventually won their case in the 7th Circuit Court of Appeals (on January
11, 2001). The Consent Decree in question was the result of the 1974
Red Squad lawsuit by the Alliance to End Repression, and had forbidden
the city government from spying on or disrupting activities protected
by the Bill of Rights. In San Francisco, the FBI tried, unsuccessfully
at first, to pressure the city government to remove similar statutory
restrictions. There is some evidence that this was a national pattern.
The 7th Circuit Court of Appeals decision in Chicago was only
one of several court decisions that went against civil liberties.
The US Supreme Court, for example, ruled in the LA 8 case that at least
under certain circumstances, the government can include political views
and activities in deportation decisions. For a long time, the
government has asserted that non-citizens are not protected by the due
process amendments of the Bill of Rights when under deportation orders
by the US Immigration and Naturalization Service, but in the past, the
Supreme Court had tended to side with the immigrants. The LA
8 decision is a worrisome change of direction.
SITUATION AFTER 9-11.
The government has quickly taken advantage of 9-11 by the following
The USA/PATRIOT Act, draconian legislation rammed through at
record speed without any public discussion, represents the biggest
assault on the Bill of Rights since COINTELPRO. Its nearly
350 pages of hard-to-read text are packed with problems, the following
being only some of the worst:
Beyond the USA/PATRIOT Act, the government has either instituted
or is talking about further draconian measures, including:
It defines terrorism over-broadly, in such a way as to really endanger
anyone who might at some time have been involved in a boisterous political
or labor protest. It makes no distinction between people who crash
airplanes into skyscrapers and people who bear arms to fight against a
brutal dictatorship. Not only Nelson Mandela, but also George Washington
would have qualified as terrorists under this law.
It permits roving wiretaps, which opens the door to "fishing expeditions"
against whole groups of people rather than surveillance approved by a court
and focused on individuals for whom there is "probable cause".
It gives similar internet surveillance power.
It allows for "shopping for venues", i.e. if the Department of Justice
wants a warrant, they can go to any federal judge anywhere in the country
to get it.
It permits the Attorney General to deport non-citizens simply on his /her
say so that they represent a danger, with virtually no judicial review.
It opens the door to lifetime detention of foreign-born people, without
any judicial finding of guilt of any crime.
It sets up potentially intrusive surveillance of non-citizen college
students, both those who are studying on a student visa and those who live
permanently in the US but are not US citizens. The government can now ask
not just if a foreign-born student is carrying a full academic load, but
also what majors or even courses he or she has chosen.
It requires bookstores to provide information to the government about who
has purchased what book, with severe penalties if they do not comply.
And private parties have been getting into the act, following the
lead of the government. Harassment, profiling and even violent
assault against people perceived to be Arabs or Muslims, or even just those
who seem to be "foreign", has skyrocketed. The government has
sent mixed signals about this, on the one hand deploring it but also doing
many things to encourage it.
Military tribunals to try non-citizens accused of involvement in terrorism.
Such tribunals could fall far short of normal standards of due process.
A suggested relaxation of federal government rules on surveillance of political
dissidents--rules that were instituted in response to the COINTELPRO scandal.
A suggestion that the Posse Comitatus law be weakened, thus permitting
the military to take over some domestic policing functions.
The long detention of many hundreds of Middle Eastern people, and the unwillingness
of the government to reveal information about whom they have detained and
for what purpose.
The ongoing FBI and INS questioning of thousands of people from the Middle
Talk about legalizing torture of people accused of terrorism.
Academics who dissent from the present war fever or criticize
some aspects of US government policy are now under attack in some areas.
The most extreme example is that of Dr. Sami Al-Arian, a professor at the
University of South Florida, who was just fired for blatantly political
reasons, in spite of the fact that he had tenure. Yellow
journalists in the Tampa area had launched a media witch-hunt against Dr.
Al Arian, who is a Muslim and an Arab US citizen and who has criticized
US Middle East policy. This led to anonymous threats of violence
against Al-Arian and the University, and the University either caved in
or used the supposed threat to student safety that these threats represented
as a pretext for firing the professor. Other academics have
also been threatened by their administrations or by right wing groups for
dissenting from the Bush administration's policies.
And in general, we are seeing new attacks on the rights
of the foreign born. The AFL-CIO and component unions has been
targeting immigrant workers for organizing drives, and in some cases, after
9-11 employers used the xenophobic atmosphere to increase their threats
against immigrant workers involved in unionization drives.
For example, workers in a large laundry plant in suburban Chicago were
told that their demand for compensation above their present minimum wage
was "disloyal" in a time of national crisis. This is a clear use of the
current situation to "chill" dissent.
WHAT ARE THE REAL DANGERS
Bad as the situation is, it is important that we keep things in perspective
and try to determine what are real, imminent dangers, and what are long
shot dangers--things that might happen but in the short run probably won't.
This is because it is not good to go around saying that nobody
has any constitutional rights ay more. In the first place,
this is not true (not yet, at least), and in the second place, such
overheated and panicky claims would play into the government's hands by
frightening people into silence. We need people to stand
up, speak out and fight for social justice, not to become so fearful that
they pull back and shut up. So we need to be able to assess
what the risks really are.
Also, resources for fighting against repression are spread awfully
thin. We need to know where to anticipate real trouble so as
to be able to concentrate these resources.
What groups and sectors are the government, and its right-wing
backers, most interested in repressing right now, excluding actual, real
Mulsims, Arab-Americans and other Middle Easterners are having trouble
and they are likely to continue to have trouble due to their general opposition
to US Middle East policy.
People who either explicitly or implicitly question the main outlines of
corporate-sponsored US foreign policy, specifically corporate-sponsored
globalization and its military-political dimensions.
We must not forget that the anti-globalization protests,
Seattle through Genoa, threw a big scare into the government and its corporate
backers, and led to a lot of strategizing at all levels of government
as to how such protests could be contained in the future. Not only the
Middle East situation and the war in Afghanistan, but the Free Trade Area
of the Americas, Plan Colombia and the Andean Pact, and similar policies
that are very close to the hearts--and wallets--of our leaders are likely
to be sore spots. The US may be getting ready to plunge
into the situation in Colombia wholesale, and this will bring objections
and protests stateside. This is a probable danger area of government
action to restrict civil liberties. Likewise, the ongoing situation
in Puerto Rico, and especially the continued US bombing of the island of
Vieques, will continue to spark protests both in Puerto Rico and in the
US, and this will likely stimulate repressive action on the part of the
government, which has heavily repressed the Puerto Rican independence movement
in the past.
People who effectively challenge local power holders, like the Cook County
Democratic Machine here in Chicago, are likely to be targeted by local
police. It is inevitable that those local police will take
advantage of the new national atmosphere and also of things like the USA/PATRIOT
act in order to suppress dissent that can in some way be connected to the
international issues. Also, people involved in protests by
municipal unions, or in protests about housing, racism, and police brutality,
may well be targeted for increased repressive action. Immigrant communities
are in particular danger in this respect.
However, right wing groups who have terroristic fringe elements will not
be targeted now any more than they have been in the past. Anti-abortion
groups or right-wing Cuban exile groups in South Florida and New Jersey
are not likely to be the focus of broad repressive efforts.
Although there is no doubt that the people who perpetrated 9-11, like Timothy
McVeigh, are ultra-rightists by anyone's definition, the government is
much more likely to use this situation to attack the left, as the right-wing
press and vigilantes already doing.
THE GENERAL, LONG TERM DANGER TO THE INSTITUTION OF CONSTITUTIONAL RIGHTS.
Even if fewer people are actually targeted for repression right
now than some of us fear, we also have to be concerned with the long term
damage to the whole concept of constitutional rights. The fact that
they are actually talking about permitting torture under certain circumstances
should wake us up. The behavior of the Bush administration, and especially
of Attorney General Ashcroft, represents a long term institutional danger
to the First Amendment, to due process and especially the right to an attorney,
to the concept of "innocent until proven guilty", to the concept of equality
under the law of both citizens and non-citizens, and even to the separation
of powers and the concept of an independent judiciary. So we
have to fight to overturn these trends even if very few people are actually
arrested or prosecuted.
WHERE SHOULD WE PUT OUR RESOURCES?
LEGAL DEFENSE. First of all, there are not enough attorney
resources to handle, on a pro-bono or low cost basis, a sudden increase
in repression of political dissent and of the struggles for social justice.
People involved in social justice struggles who are arrested and charged,
who are hauled before politically motivated grand juries, or who are simply
subjected to scary harassment, are going to need help. One
government tactic in the past (under McCarthyism in the 1950s, for example)
is to try to stop dissent by financially ruining individual and organizational
dissenters, and this can be done by forcing them to spend all their money
and then some on legal help. Many organizations and individuals have been
neutralized in this way, sometimes for years at a time, sometimes permanently.
This is a government tactic that can work even when the prosecutors know
that they can not win a case in court. And groups involved
in present-day social justice dissent are very often extremely impecunious.
Even a modest-sized legal bill could put them out of action. We can
not permit this, so we need to discuss how to increase legal resources
proportional to the danger. We should discuss both how we can
build up existing resources, and if any new ones need to be created.
COALITION BUILDING. As I have spoken recently in
Chicago and suburbs on the constitutional rights crisis, I have noticed
that I am frequently addressing either people who have been interested
in this issue for many years, or people who are involved in the anti-war
and anti-globalization movements. Audiences tend to be composed of
white professional people and students, with a representation of Arab-Americans
and Muslims also. Yet there are many other important
segments of the society that either are already taking alarm about the
attack on constitutional rights, or are in an objective situation wherein
they SHOULD be taking alarm. Among these are:
African-Americans. History has taught that every turn toward
repression sooner or later will lead to attacks on the rights of the African-American
people, and especially on African-American political and civil rights leadership.
This is why the opposition to the USA/PATRIOT act in Congress came mostly
from the Congressional Black Caucus. Groups as varied as the
NAACP, the Urban League, the SCLC and the Black Radical Congress are already
taking alarm about the situation and are natural and crucially important
allies in the struggle to protect constitutional rights.
The same goes for Mexican-Americans, Puerto Ricans, Native Americans and
other racialized minorities. Mexican American organizations
are already alarmed by the implications for the present trends for rights
of non-citizens, while Puerto Ricans are wondering if the new powers of
the government will be turned against the people protesting against the
bombing of Vieques.
Organized labor. When a supposed anti-terrorism bill
worse than the USA/PATRIOT act was introduced in the Illinois General Assembly,
one of the people who spoke out most eloquently against it was Margaret
Blackshere, president of the Illinois State AFL-CIO. Labor
opposition played a role in diluting the bill to the point of near harmlessness,
although it did eventually pass. The concern about constitutional rights
on the part of organized labor is natural and historically rooted.
Repression in the United States has generally been aimed at keeping down
workers and African Americans above all. The Palmer raids of
1919 were ostensibly directed against foreign anarchist terrorists, but
they hit labor hard at a time of great strike activity. 1950s
McCarthyism can be interpreted as mostly an attack on workers and organized
labor. Even the Hollywood Blacklist got started as a means of suppressing
left-wing unions working in the film industry. The damage done
to organized labor by McCarthyite repression was so great that some think
that we still are feeling the results today. At present,
the extreme right wing elements in organized labor--the Meany's and Kirklands--have
been eclipsed by more progressive leadership that, importantly, strongly
and actively opposes corporate globalization policies of the US government.
Furthermore, organized labor has realized that to survive, let alone grow,
it absolutely must organize non-citizen, immigrant workers now. But
if an atmosphere of repressive xenophobia continues, employers will use
it to terrorize their immigrant employees into quiesence--something they
are already trying to do. It is therefore completely natural
that the annual AFL-CIO convention last fall issued a strong statement
denouncing the attacks on constitutional rights. However, many people involved
in the constitutionals issue do not understand this and therefore miss
the opportunity of building coalitions with labor.
Coalition building is an art and a science. It
requires patient diplomatic work, and above all the recognition that there
must be mutual solidarity on the issues most important to each real or
potential coalition partner. For example, to maximize African-American
support on the defense of constitutional rights, we must recognize that
most African-American activists correctly see police brutality and routine
racial profiling as being part and parcel of the attack on such rights.
Likewise, we must understand that labor unions are vitally interested in
the RIGHT TO ORGANIZE as a basic human right. The route to unity and solidarity
is through the creative combining of the key issues and struggles of each
EDUCATE THE PEOPLE.
At the best of times, the people of the USA are not well educated
on constitutional issues. Even such basics as the 6th Amendment
right to an attorney or the presumption of "innocent until proven guilty"
are sometimes seen as some kind of "coddling of criminals" or special favors
to the guilty at the expense of the victims and the long-suffering, law-abiding
public. The government and the news and entertainment media (think
of such things as the Charles Bronson "Death Wish" films or the TV show
NYPD Blue) have been committing assault and battery on constitutional rights,
and even promoting police brutality and vigilantism, for a
long time. The status of the rights of the foreign born is even worse,
with a tendency to think of all non-citizens as "illegals" who are thought
not to have any rights at all. Also, the unprecedented
horror of 9-11 is making people react emotionally, with anger, sadness
and fear, and support government actions they might otherwise question.
Both government and establishment media are doing all they can to confuse
people and get them to accept the previously acceptable, e.g. torture of
terrorism suspects. We have to leave no stone unturned to find ways
to turn this trend around, and show people that the defense of constitutional
rights is in their own vital interest.
PUBLIC ACTION IN DEFENSE OF CONSTITUTIONAL AND CIVIL RIGHTS.
We must increase the following kinds of actions:
Let the fight-back begin!
Roll back the bad legislation as soon and as completely as we can, not
only the USA/PATRIOT Act but also the 1996 legislation. Then work
to get rid of the political misuse of grand juries. Just before 9-11,
we were making good progress on eliminating Secret Evidence legislation,
so we know that this can eventually be achieved, difficult though it might
Make the government and the politicians understand that there will be a
united and massive response to assaults on First Amendment and due
process rights. Do not let any sector, organization or individual
become isolated and forced to fight the government alone. Respond
to attacks on constitutional rights with demonstrations, litigation, media
campaigns and whatever other tactics will serve. Organize such
actions on a truly mass level, not just the usual handfuls of progressive
Make use of electoral politics. Hold elected officials accountable for
their opportunism and cowardice when they leave constitutional and civil
rights in the lurch. Just now things are, of course,
going the other way. We have to reverse that.