On Friday April 4th, the Center for European and Eurasian Studies and the UCLA School of Law Program in Public Interest Law sponsored a symposium. Law and politics specialists compared how civil rights are effected when a country is confronted with terrorism.
Safe but free, should be the standard we seek, according to ACLU attorney Ben Wizner.
By Carla Thorson
Is the conflict between terrorism and civil rights real or is it, in fact, a false conflict? This is the question Ben Wizner, attorney for the ACLU of Southern California, posed at the outset of a discussion by a panel of experts at the UCLA Law School with an audience of 100 students, faculty, and interested members of the community on Friday April 4th, and it has been an issue not just in the United States. The lively forum included discussion and debate by legal scholars and political scientists both on the responses to terrorism in the United States as well as in Europe. The timely symposium was co sponsored by the Center for European & Eurasian Studies, the Friends of Goethe of Southern California, the School of Law Program in Public Interest Law and Policy and the Southern California Consortium on International Studies.
In his discussion of new policies like the USA PATRIOT act, and "son of PATRIOT" an addendum to the first piece of legislation that has not yet been officially announced, but has been leaked to the press, Wizner characterized the reaction to 9/11 by the US administration as a series of sweeping new security measures that have been approved by the US Congress with little or no real discussion of their impact on civil rights. The argument in favor of these laws has been that our need for security outweighs their negative impact on civil rights in this country. Wizner pointed out the fallacy of this argument, by considering other kinds of laws. For example, we know that hundreds or even thousands of lives could be spared each year, if the speed limit was reduced from 65 to 55 or even 45 mph, and yet we, as a society, agree to forego those lives in favor of getting places more quickly. If we are knowingly willing to sacrifice lives for convenience, then why are we unwilling to make similar trade offs when it comes to fundamental freedoms such as privacy, or the right to counsel and a fair trial?
In evaluating new laws, Wizner suggested that the principle should be "safe but free," and he offered two simple but direct ways to judge new security measures. First, "Will this law make us safer?"; and second, "Even if it will make us safer, is it worth it? Choosing just one example, the loosening of FBI guidelines for wiretapping and information gathering, Wizner noted that the PATRIOT act establishes quotas for the number of Mosques that should be electronically surveilled, among many others. This framework makes it more likely that the FBI will have to justify why they are not investigating a particular Mosque, as opposed to why they are doing so. Will this kind of electronic eavesdropping and data gathering make us safer? The short answer is that we really don't know, making it even more difficult to argue that "total information awareness" is worth it. It seems more likely that hundreds of innocent people will be become suspects.
Both Ben Wizner and Scott Bowman, Political Science Professor from Cal State LA, pointed to the two major developments in the post 9/11 United States: increasing levels of secrecy and an unprecedented transfer of power to the executive branch. Both agreed that these are the hallmarks of totalitarianism.
Bowman discussed the "War on Terrorism" from a constitutional standpoint. He argued that this is a war of unknown duration against unnamed foes. The first joint Congressional Resolution passed just days after September 11, 2001 was, in effect, a declaration of war, but only against those responsible for 9/11, while the second joint resolution passed in September 2002, was clearly designed to widen the definition of terrorism and to link it directly to Saddam Hussein's Iraq. This resolution advocates a "general war on terrorism" and, in effect, delegates the congressional war powers under Article I of the US Constitution to George W. Bush. The trend has also been to bypass the courts, consolidating activities related to this war on terror within the executive branch and giving tremendous discretionary power to the Attorney General. Moreover, there are indications that the administration's "new internationalism" goes beyond Iraq and is designed to establish a "benevolent American hegemony." These trends are cause for concern, if not alarm, according to Bowman.
In contrast, many of the kinds of legal provisions implemented in the United States only after 9/11/01, have been in place in European countries for many years. These countries have had much longer histories of domestic terrorism. Professor Terri Givens (U. of Washington) reminded the audience that Great Britain has had long-standing issues with the IRA, France and Spain with the Basque separatists, and Germany with a range of militant or xenophobic groups. These laws include higher levels of surveillance and oversight, but their major effect has been on immigration policy and the treatment of asylum seekers. Traditional antagonisms toward foreigners and in particular asylum seekers have fueled the radical right movement in Europe, and the impact of 9/11 has fanned the flames. Givens described it as a "Perfect Storm" elevating the electoral prospects of the radical right movement and promoting harsher legislation on immigrants and asylum seekers.
Professor Garst, UCLA Political Science, agreed but he also noted that the terrorist groups in Germany, are in some respects unique. Garst analyzed the waves of terrorism that have moved across Germany and their origins. The first wave in the 1970s was left wing terrorism, perpetrated by groups like Baader-Meinhof and the Red Army Faction. These groups targeted symbols of capitalism. The second wave in the 1990s has been right wing terrorism driven by xenophobia. These groups target immigrants and asylum seekers. In general, Professor Garst characterized the state response to these terrorist groups as lax, but since 9/11 the German government has been more willing to track down suspected terrorists living in Germany. Pressure from the United States may offer a partial explanation for this, but a worldwide reaction to 9/11 has led to changes in the laws of many countries.
Dr. William Aceves, Professor of International law at Cal Western Law School, works with Amnesty International and other human rights groups, and he discussed the reaction of many countries around the world. Amnesty International's recent Human Rights Watch report offers substantial evidence of an increase in detentions, restrictions on rights to counsel, and other ominous changes in legal procedures in many countries. He also discussed the situation of the detainees in Guantanamo Bay, Cuba, describing them as being in "a legal black hole," not subject to US laws. The international covenant on civil and political rights is the most important international agreement that might offer them some protection, but Aceves noted that there are ways for countries to derogate from international law. The United States has thus far resisted international oversight of these detainees. European countries may be more accustomed to international oversight due to the existence of the European Court of Human Rights, but there is an overarching concern that terrorism will become an excuse for more countries to ignore international law and reverse the progress that has been made in the protection of human rights around the world.
Several speakers noted the prescient words of former Supreme Court Justice William Brennan, who wrote:
"... For as adamant as my country has been about civil liberties duirng peacetime, it has a long history ... of failing to preserve civil liberties when it perceived its national security threatened."
We all take for granted the rights of free speech, privacy and due process. These are the very rights, however, that in times of national security crises are compromised in the name of security.
For more, please see the article that appeared in the Daily Bruin, http://www.dailybruin.ucla.edu/news/articles.asp?id=23639