CIVIL LIBERTIES, THE RULE OF LAW AND POLITICAL REPRESSION IN THE AGE OF OBAMA
Text from presentation by Michael Deutsch of People’s Law Office
Presented at the Derechos Humanos Conference in San Juan, Puerto Rico
December 8, 2012
In talking about the state of civil liberties, the rule of law and political repression today, I want to start by going back almost 35 years to a secret closed conference, entitled, “Special Seminar on Terrorism” that was held here in Puerto Rico in 1978. The conference was funded by the U.S. Justice Department, and attended by the FBI and leading so-called experts on counter-insurgency throughout the world, including military officers and advisers involved in suppressing liberation movements in Ireland, Asia and Latin America.
Although the conference was highly secret, shortly after its conclusion, I anonymously received, , the planning documents for the conference. At the time I was deeply involved with the legal representation of Puerto Rican independence activists in the United States who were under intensive surveillance by the FBI, whose community leaders were subpoenaed to federal grand juries in Chicago and New York, and were imprisoned for not collaborating with the U.S. governments investigations into clandestine independence activities – and subsequently, captured accused members of the FALN, charged with “seditious conspiracy,” used for the first time since the Puerto Rican Nationalists were charged in the 1950’s.
So the planning documents of this secret conference on “terrorism,” which focused on methods, and strategies for dealing with what was considered by the conference planners as a growing and potentially broad insurgency in furtherance of Puerto Rican independence, was of great interest to me.
The overarching thesis reflected in the conference planning documents was that that the U.S. intelligence and law enforcement agencies must develop a “counter-insurgency” approach to dealing with the independence movement. Counter-insurgency was defined (and still is defined by the U.S. military) as:
Those military, para-military, political, economic , psychological and civic actions taken by a government to defeat subversive insurgency,” [and ] Insurgency was defined as “[a] condition resulting from revolt or insurrection against a constituted government that falls short of civil war.
The planning documents quoted extensively from the writings of two British military officers and leading counter-insurgency theorists, who had commanded British occupation forces in Northern Ireland, Frank Kitson, the author of “Low-Intensity Warfare” and Lt. Col. Robin Evelegh, the author of “Peace Keeping in a Democratic Society.”
Both Kitson and Evelegh’s theories and strategy are based on the principle that the resistance of oppressed sectors of a population is inevitable and continuing, and therefore the strategy for the security forces, rather than reacting to individual acts or periods of heightened resistance, must be one of permanent repression directed at broad sectors of the community from which the resistance will emerge.
Even in periods of calm and inactivity, the theory of counter-insurgency posited by Kitson and Evelegh, as well as others, argue that it is critical that the security forces actively identify potential leaders and supporters of resistance. The CI strategy calls for the gathering of information, surveillance, building dossiers and infiltrating political and community organizations.
Evelegh writes that “population surveillance is essential, including the right to question, photograph, fingerprint all members of a population potentially affected by an insurgency and to use all technology available to facilitate the surveillance and information gathering on these targeted communities.” Of course, you here are well aware of the Puerto Rican police dossier keeping – – “carpetas” – on thousands of independististas, a program carried out with the full knowledge and support of the FBI.
The other predominate feature of the secret conference planning documents was the advocacy of the use of the law and the legal system to attack and destroy potential insurgent movements while at the same time maintaining the appearance of the law as impartial and non-political.
Kitson writes that, “[t]he law should be used as just another weapon in the government’s arsenal. . . For this to happen efficiently the activities of the legal system has to be tied into the war effort in as discrete way as possible.”
Invoking this analysis, the planning documents called for, at the earliest possible point, “the enactment of substantive laws making new offenses, [and] revision and expansion of the existing laws related to arrest, search, detention and intelligence gathering.”
The documents specifically called for “increased police power of intelligence gathering, harsh bail policies including internment for “extremist leaders,” special attention to venue, postponement of trials, courtroom security and the expansion of the government’s powers of search and seizure. The documents also mention the use of highly restrictive pre-trial detention, including solitary confinement, as well as invading attorney-client meetings with police observers and the opening of legal mail.”
In addition, the planning materials also state the importance of control of the media to discredit independence activists, referred to repeatedly in the documents as terrorists.
“The media should never be permitted to demonstrate the terrorist as an ordinary human. Briefing and orientation may be necessary in order to focus terrorist coverage by the media.”
Indeed, many of the ideas and counter-insurgence strategies discussed in the planning materials were in some form being implemented by the FBI and U.S. Justice Department against the P.R independence movement, including the accused Macheteros, whose homes and work places were simultaneously raided under an FBI operation called “D Day,” in August, 1985, during which thousands of books and political documents were seized, and where, over a period of months prior to the raids, thousands of hours of private and personal conversations were illegally electronically overheard. Those arrested in the raids were transported by U.S. military aircraft to Hartford Ct. to stand trial for the Wells Fargo Depot robbery, where most spent years in prison before finally allowed bail.
The use of the grand jury to “intern” public independence supporters, including the prosecution for criminal contempt, the expanded use of electronic surveillance including the placement of cameras in residences, prolonged pre-trial detention, trials with expanded court-room security, and the refusal of the courts to allow evidence of the colonial situation of Puerto Rico from being raised in the courtroom, all were implemented following the counter-insurgency model.
Fast Forward to Today
I suggest to you that today, as a result of the global war on terror (GWOT), begun by Clinton, but really implemented, with great bravado and fanfare, by Bush after 9/11, and continued and expanded under Obama – yes, continued and expanded under former constitutional law lecturer Barack Obama – we have now in place – institutionalized in our legal system – all the elements of a domestic “counter-insurgency” strategy with bi-partisan Congressional support. The Democrats have joined with the Obama Administration to institute and approve policies, laws and secret practices that they were up in arms about when Bush was in charge.
Spying, Surveillance and Secrecy
The Surveillance State has been secretly and greatly expanded under the Obama administration which has now erected an impenetrable wall of secrecy around open-ended massive warrant-less electronic surveillance, the wholesale collecting of e mails and the tracking of cell-phones. NSA whistleblower, William Binney asserts that the NSA is collecting all the e-mails of Americans, through the NARUS traffic analyzer technology – 15-20 trillion emails under the “Terrorist Surveillance Program” has been seized without any judicial oversight and are housed in data bases for retrieval at any time.
Under the OA, the U.S. Patriot Act, has been renewed with little debate, which has been interpreted to allow, among other things, for secret spying on U.S. citizens without a judicial warrant, the use National Security letters which empowers the Feds to obtain all of one’s phone, financial and credit records, without even a claim of wrongdoing. Between, 2003-5 over 150,000, National security letters were issue by U.S. prosecutors. In addition under the Patriot Act the government is empowered to carry-out secret warrantless searches, called “sneak and peek.”
The U.S. has over 16 agencies involved in intelligence gathering, with major programs at the FBI, Dept. of Defense, the NSA and the Department of Homeland Security. Each of these agencies are working with private companies – including the tele-com companies who have been given immunity for cooperating with the Government –involved in data mining personal and private information including emails, phone calls and other communications and illegally sharing it with law enforcement.
In a classic catch 22, the Obama Administration has opposed any court challenge to these secret programs, arguing that unless a person can show their conversations were actually overheard or their emails seized they have no standing to challenge these secret program.
The U.S. in building a I million square foot center at the cost of 2 billion dollars in Bluffdale, Utah to store and retrieve all of the data that has been obtained by the surveillance state.
Beyond this, hundreds of thousands of documents are unnecessarily classified as secret and undiscoverable through the FOIA or court litigation. In 2011 alone, 92 million documents were classified as secret, double the amount classified in 2009. Even documents provided by the government of Israel, detailing their programs and methods for interrogating Palestinians, have been claimed as “classified” by the U.S. government, and kept hidden from defense counsel in a case in which a Palestinian man was tortured for 85 days by the Israeli secret police.
The U.S. now routinely acts in conjunction with local law enforcement in carrying out massive spying operations against millions of Americans, including the infiltration of Mosques and the use hundreds of paid informers to spy upon and set-up, mostly young Muslim men.
I would say that the teachings of Kitson and Everleigh to surveill, monitor and keep dossiers on people and communities from which potential insurgency might arise, even in periods of utter calm, has been implemented and totally accomplished by the U.S. government
Detention without Trial and Military Commissions
We have also legalized indefinite military detention without trial under the National Defense Authorization Act (NDAA), for anyone “who it is claimed to have “substantially supported Al-Queada, the Taliban or “associated forces” that engaged in hostilities against the U. S. or coalition forces.”
In a recent law suit challenging the law, the Government refused to say that the law would not be used against reporters and others who met with and report on the activities of such groups. When the District Court enjoined the law as clearly overbroad in violation of the First Amendment, the Obama administration filed an emergency appeal and got a higher court to reinstate the law.
We are continuing to house men at Guantanamo, many who have never been charged, going on 10 years. For the few who have been charged we are continuing to use “military commissions,” instead of federal courts. These commissions presided over by military officers, prohibit the defendants from raising claims of torture, have military personnel as jurors, bar the use and access to classified evidence, and as a practical matter are not public trials. So the counter-insurgency ideas of preventive detention and special trial venues have been instituted.
The Obama administration has created an “impenetrable circle of impunity” to torturers, their supervisors and their legal enablers, refusing to investigate valid claims of torture, ignoring its obligations under international treaties and covenants against torture.
Not only has it failed to prosecute torturers, it has charged a former CIA agent with “espionage,” with a potential life sentence, for disclosing to the press the name of one of the CIA torturers. Another government “whistleblower” has also been charged with espionage for leaking information about the illegal warrant-less electronic surveillance program to the New York Times.
In fact, these 2 men, and 4 other whistleblowers, have been charged with espionage for leaking information to the media of government wrongdoing. More people have been charged under this espionage law under Obama that all the prior presidents combined. And many of you might also know the case of soldier Bradley Manning who is accused of providing documents to Wiki-leaks about the government’s lies and cover-ups about the wars in Iraq and Afghanistan. He faces life in prison and has been held in solitary confinement under cruel and degrading conditions, equivalent to torture.
Obama has not only refused to prosecute torturers, but also freely used a doctrine called the “States Secret Privilege” to prevent private civil lawsuits alleging torture, illegal electronic surveillance and rendition, claiming the programs and policies are classified and secret, thus cannot be the subject of court review. Once this doctrine is raised in court, the courts invariably dismiss the case, no matter how serious the claims, or how much of the so-called classified information is already public.
Even the challenge to the Obama assassination drone program secretly implemented with a “kill list” which has murdered hundreds of civilians, and which doesn’t even always target specific persons, but executes so-called “signature targets” – people that fit a general profile – has been subjected to claims under the States Secrecy Doctrine. At the same time the Obama administration refuses to answer in court for their Drone program as secret and classified, the Attorney General of the United States proclaims in a U.S. law school that “due process” is satisfied by an internal process of the Executive Branch that decides who shall be eliminated without any review by the Courts.
Although the CIA was forced close its secret prisons in the last years of the Bush administration, the Obama administrations still uses foreign countries and the policy of “extraordinary rendition” to house and torture arrested militants, who aren’t eliminated by drones. It has been recently documented that Somalia and Afghanistan house and torture militants on behalf of the United States, who are denied access to habeas corpus relief in the U.S. courts.
Material Support and Other Special Laws
We have passed new legislation which now criminalizes pure First Amendment activities if it provides “material support” for an expansive list of over 48 offenses that might be committed by terrorists, and for designated Foreign Terrorist Organizations (FTOs).
In addition, the Government has also been given the power to designate through the Treasury Department under the International Emergency Economic Powers Act (IEEPA), organizations and individuals, without a hearing or a finding of probable cause, to be a Special Government Designated Terrorist (SDGT), and as a result the person or organizations funds are blocked and the designee cannot carry out any economic activities, without a special license.
The case of my client Muhammad Salah is a frightening example of this awesome power. 17 years on the list, despite acquittal of all terrorism related charges by a federal jury and only recently was delisted after the filing of a federal law suit. After 9/11, 15 of the largest Muslim charities were shut down and all their assets blocked, without any showing that their charitable work was in support of terrorism.
In addition, the material support law has been used to criminalize leaders of charities, as well as other First Amendment conduct, empowering the Secretary of State, with little meaningful right to be heard, to place foreign political organizations on a terrorist list. Of course, many of the groups so designated are listed because they oppose U.S. policies towards their country.
Once a group is listed, any knowing “support,” which could be totally unrelated to the use of force or violence, is made criminal under the broad and vague terms of providing “expert advice or assistance”, “training” (designed to impart a specific skill), or “services.” Advising a listed group how to pursue human rights claims, initiate peace discussions, or providing a group with legal advice, or providing charity to social service agencies, allegedly affiliated with such a designated group or a sub group, can result in a s 15 year prison sentence.
Tens of young Muslim men have been targeted by the FBI, for travel to Middle East or for writings on the internet, or entrapped into plans that could never have reached fruition, have been imprisoned on material support charges.
The leaders of the Holy Land Fund, the largest Palestinian charity in the world are serving long prison sentences up to 65 years for raising money to provide help for the people living under occupation.
After a lower court held that the terms expert “assistance and advice”, “training or service” were unconstitutionally vague, would allow for the punishment of pure speech, and could not be the basis for a material support charge, the Obama Administration appealed this ruling favorable to the Constitution. In 2010 the reactionary U.S. Supreme Court, in Holder v. The Humanitarian Law Project , held that any act whether or not pure speech, or advocacy protected by the First Amendment could be the basis for a material support violation, if the act was “in conjunction with or under the direction of a designated Foreign Terrorist Organization.”
Within months of this ruling, the homes of anti-war and international solidarity activists, supporting the freedom of Palestinian were raided by the FBI, all their books and papers confiscated, and they and 20 others were subpoenaed to a grand jury investigating “material support “for the Popular Front for the Liberation of Palestine, one of the four main Palestinian liberation organizations designated by the U.S. as an FTO. These political activists’ crime was sponsoring a speaking tour of a Palestinian woman, writing articles in support of the rights of the Palestinian people and public education about the treatment of Palestinian prisoners.
Of course, those who are convicted are sent to special prisoners, where they are held in isolation, and denied contact visits with family. In many cases their lawyers have to agree to special limitations on their rights to confer or be prohibited from visiting. There is one Unit in Terre Haute Indiana, where almost all the prisoners housed there are Muslims, yet they are prohibited from gathering together to pray.
Through this list of “horribles,” the mainstream media has stayed silent. National Public Radio has a terrorism correspondent which simply parrots the FBI and stay silent about all of these unconstitutional abuses. The Democrats have also said nothing, since it’s their standard bearer who has expanded and developed these counter-insurgency methods. Can you imagine if President McCain had done what Obama has done?
We have institutionalized changes in our most basic constitutional rights – a bi partisan wave of repression that violates international law, ignores our most fundamental protections and is now a permanent fabric of the U.S. judicial system. The politics of fear, ignorance and official mendacity has allowed for this transformation of our legal system in a way that would clearly satisfy the counter-insurgency theorist of the 1970’s. We must speak out at every opportunity to explain and denounce what has happened to our basic human rights. To stay silent makes us complicit in these crimes against the people.