A Matter of Rights by David Cole
The Nation, 2001-10-08
Nothing tests our commitment to principle like terrorism. Before September 11, America banned assassinations of foreign leaders; now the Administration is considering abandoning that prohibition. Before September 11, more than 80 percent of the American public felt that racial or ethnic profiling was wrong; today, that consensus is rapidly eroding, as FBI agents detain dozens of suspects solely because of their Arab or Muslim identity and associations. Ten years ago, Congress repealed McCarran-Walter Act provisions making mere membership in various political organizations a deportable offense. Now the Administration seeks authority to detain and deport aliens accused of virtually any tie to a terrorist group defined expansively to include any group that has or might use weapons.
The September 11 terrorist attack undoubtedly warrants a comprehensive review of our intelligence and law enforcement capabilities. But what is needed is better-coordinated intelligence and more targeted law enforcement, not broad-brush legislation that simply throws more power at government agencies that have already shown a proclivity to abuse the power they have.
This country has a long tradition of responding to fear by stifling dissent, punishing association, launching widespread political spying and seeking shortcuts around the Constitution. Few Americans opposed the imprisonment of antiwar dissenters during World War I, the internment of Japanese-Americans during World War II or the anti-Communist laws of the McCarthy era. We now acknowledge that those initiatives were wrong, but have we learned from our mistakes?
To some extent we have. No one has yet proposed making membership in a Muslim organization a crime, detaining all Americans of Arab descent or Muslim faith, or criminalizing dissent. But in 1996, after the Oklahoma City bombing, we resurrected guilt by association, criminalizing any material support to any foreign group deemed terrorist by the Secretary of State, even if that support consisted of sending human rights pamphlets to an organization fighting a civil war. And now the INS seeks unprecedented authority to lock up and deport as a "terrorist" any alien remotely associated with a any group that has ever used force even if the alien himself has no connection to violent acts.
And all indications are that the FBI continues to operate as if guilt by association is the rule. While the September 11 terrorists were training for and coordinating their conspiracy in Florida, the FBI was spending vast resources investigating Mazen Al Najjar, a Palestinian professor from Tampa who spent three and a half years in detention on secret evidence and charges of political association. Al Najjar was released last December when an immigration judge found no evidence that he posed a threat to national security. And while the terrorists were conspiring in New Jersey, the FBI focused its efforts on Hany Kiareldeen, a Palestinian in Newark detained for a year and a half on secret evidence for associating with terrorists. He was freed after immigration judges flatly rejected the government's charges as unfounded; the FBI's principal source was apparently Kiareldeen's ex-wife, with whom he was in a bitter custody dispute and who had filed several false reports about him.
The government already has adequate powers to combat terrorism. It has authority to wiretap any person suspected of working for a foreign government or organization, without any criminal predicate whatsoever. It can prosecute and freeze the assets of those who provide aid to terrorist organizations. It can bar entry to members of terrorist organizations, and it can detain and deport any alien who has engaged in or supported a terrorist act.
When, in less turbulent times, a bipartisan National Commission on Terrorism appointed by Congress recommended steps to improve our response to terrorism, it advocated none of the measures now advanced by Attorney General Ashcroft. Its advice was to streamline and coordinate existing authority, but that entails hard work and substantial turf battles; it's far easier, but far less effective, to give the FBI still more power to spy on the American people.
This article first appeared in The Nation Magazine, 2001-10-08.
© 2001 The Nation Company, L.P.
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