From: Abolish - The Mailing List For People Working to Abolish the Death
Penalty [ABOLISH@MAELSTROM.STJOHNS.EDU] on behalf of Rick Halperin
[rhalperi@MAIL.SMU.EDU]
Sent: Monday, April 28, 2003 12:59 AM
To: ABOLISH@MAELSTROM.STJOHNS.EDU
Subject: NEWS:---UTAH, USA
April 27
UTAH---2 face possible firing squad executions
Utah may execute 2 in June -- Hearings set this week for Kell and
Arguelles
Utah could execute 2 men by firing squad at the end of June if death
warrants are signed by district judges this week.
If the men white separatist Troy Kell and serial killer Roberto Arguelles
are executed, it would be the 1st time Utah has carried out the death
penalty twice in the same year.
Kell and Arguelles are set for hearings Tuesday and Thursday,
respectively. Under Utah law, if neither man files an appeal, each would
have to be executed within 60 days of a judge's order, Assistant Attorney
General Thomas Brunker said. He expects both warrants will be signed.
Both Kell and Arguelles have elected to die by firing squad. Utah is the
only state that still allows those convicted of capital offenses to choose
a firing squad as a method of execution, though Idaho and Oklahoma retain
it as a legal option.
Lethal injection is most common.
"We do think one or the other of them will file an appeal," Utah
Department of Corrections spokesman Jack Ford said. "If they don't, it
will be really unusual. We've never done 2 firing squads."
Utah has executed 6 men over the past 26 years, since garnering
international attention for ending a nationwide moratorium on the death
penalty with the firing-squad execution in January 1977 of double-murderer
Gary Gilmore.
The last time the state carried out a death warrant was April 1999, when
Joseph Mitchell Parsons died by lethal injection, having been convicted of
murdering a California motorist who gave him a ride. In January 1996, John
Albert Taylor was executed by firing squad for the murder of 11-year-old
Charla King. Executed previously were 1980s child murderer Arthur Gary
Bishop, and Pierre Dale Selby and William Andrews, both involved in 1974's
Ogden Hi-Fi Shop killings.
By law, Kell and Arguelles will have 30 days to file an appeal after their
death warrants are signed. In capital cases, a conviction is automatically
appealed to the Utah Supreme Court after a conviction. A death warrant
comes before a district judge only after a conviction has been upheld by
the the higher court.
Kell, 34, was convicted in 1996 of stabbing and killing Lonnie Blackmon
while both were incarcerated at the Gunnison unit of the Utah State
Prison. Investigators said Kell stabbed Blackmon 67 times with a homemade
knife in a racially motivated attack.
Kell, who was serving 2 life sentences for a prior homicide in Nevada, has
given the state mixed messages about whether he will pursue further
appeals, Brunker said.
At an April 11 hearing in Gunnison, he did not object to having the death
warrant signed but also asked 6th District Court Judge David L. Mower to
appoint him a new attorney. By law, a defendant's existing defense counsel
cannot also represent him in his appeal of a capital conviction.
Mower has appointed Provo attorney Mike Esplin to represent Kell. Esplin
could not be reached for comment. However, Kell's previous counsel,
Stephen McCaughey, said he did not know if Kell actually planned an
appeal.
Like Gilmore before him, Kell's story has received national attention,
notably in the graphic HBO documentary "Gladiator Days: Anatomy of a
Prison Murder," directed by Marc Levin.
Arguelles, on the other hand, has for 5 years been asking the state to
allow him to die.
After pleading guilty to the 1992 kidnappings and murders of four females
whom he killed while on parole from the prison for another offense
Arguelles, 41, objected to his legally mandated appeal and refused an
attorney, despite the court's appointment of defense attorney Ed Brass.
Brass filed motions on Arguelles' behalf, but the Utah Supreme Court
upheld the Arguelles convictions in 1997. Arguelles might have been
executed sooner, but in 1998 he attempted suicide, which prompted further
court actions, along with a mental health evaluation.
Arguelles has spent more than 21 years behind bars, mostly for violent sex
crimes beginning in the late 1970s. He received the death sentence for
murdering 13-year-old Stephanie Blundell; Tuesday Malisa Roberts, 14; Lisa
Vickey Martinez, 16; and 42-year-old Margo Bond. Roberts and Martinez were
found buried at a west Salt Lake Valley pig farm.
Technically, Brass does not represent Arguelles, but earlier this month he
petitioned the U.S. Supreme Court to consider a review of the Utah Supreme
Court's decisions in the Arguelles case. Brass has been given until June
to file his arguments with the nation's high court.
Complicated legal maneuvering in the case saw Brass serving first as
Arguelles' advisory counsel and later as a friend of the court to Utah's
Supreme Court, with another attorney temporarily assigned to represent
Arguelles. Brass said he knows of no precedent for such moves and
therefore the case should be reviewed by a higher court.
He also has said that, based on reports from other inmates and other
defense attorneys who have visited the prison, there is reason to question
whether Arguelles' current mental health is such that he can make rational
decisions especially in a hearing where it will be determined that he
might be put to death.
"I felt morally obligated to do this," Brass told the Deseret News. "It
seems to me that I was charged with taking those issues to an appellate
court. I think I'm fulfilling my duty to the legal community and to Mr.
Arguelles."
Brass said Arguelles does not know about the petition to the U.S. Supreme
Court.
"I'm not doing this with his permission," said Brass. "He doesn't want
appeals. He was real unhappy (before), and I'm sure he'd be unhappy about
this."
Brass said he will not appear at Arguelles' hearing before 3rd District
Judge Barton Thursday but said it appears he and his co-counsel in the
matter, Ron Yengich, will likely have to file a request for a stay of the
Arguelles execution if Barton signs the death warrant.
Brunker said he does not believe Burton will hesitate to sign the death
warrant based on Brass' petition to the Supreme Court. Brunker will argue
that Brass is not legally Arguelles attorney and has no legal standing the
matter.
"Basically, there is no stay order . . . under our statute. (Burton) has
to sign the warrant unless there is an actual case pending," said Brunker.
"If they are pursuing this at (Arguelles') request or he concurs, I would
still argue that (Barton) lacks the authority to refuse to sign."
38 of the 50 United States authorize capital punishment. The U.S. Supreme
Court lifted a nationwide moratorium on the death penalty in 1976.
Subsequently, by the end of 2001, 749 people on the various death rows had
been executed, with Texas carrying out by far the most, with 256,
according to the U.S. Bureau of Justice Statistics.
(source: Deseret News)
USA:
The Other War---The Bush Administration and the End of Civil Liberties
Our war on terror begins with al Qaeda, but it does not end there. It will
not end until every terrorist group of global reach has been found,
stopped, and defeated.
--President George W. Bush, September 20, 2001
It didn't take President Bush to tell Americans that the world changed on
September 11, 2001. But it took Bush, Attorney General John Ashcroft, and
an unquestioning Congress to change the legal foundation of what it means
to be "free" in America. The president declared from the start that it
would take more than military might to wage the fight. This war would
require a new arsenal of laws and regulations at home. And he got them. If
the September 11 suicide hijackers hated us for our freedoms, as the
president also said, today there is less to hate.
The legal firepower behind the war on terror consists of 2 pieces of
legislation, the Antiterrorism and Effective Death Penalty Act of 1996 and
the USA Patriot Act of 2001, as well as a host of executive orders and
federal agency regulations. Ashcroft, Bush, and numerous federal courts
have decreed that freedoms must be curtailed in the name of fighting
terror. But that formulation suggests they will be temporary. Given the
nature of terrorism, and of politics, that is extremely unlikely.
Bush, after all, has said repeatedly that this is to be a war of many
years' duration, a life's work. It will not stop until every terrorist
threat the US cares to identify is vanquished. It is a global war without
territorial boundaries and without a known cast of enemies, save
one--evil. And it's being fought at home, too, in churches and town
squares, courtrooms and libraries.
At the center of this new body of terror and homeland security laws lies a
vague and amorphous definition of its central term: What is terrorism?
Government agencies and departments use varying standards. But the USA
Patriot Act defines terrorism as "acts dangerous to human life that are a
violation of criminal law" that "appear to be intended to influence the
policy of a government by intimidation or coercion." This definition is so
broad that practically any act of civil disobedience could be construed to
violate the law. (A political demonstration taking place in the path of an
ambulance, for example, could be termed "dangerous to human life.")
As many Arab-Americans have discovered, individuals making contributions
to Islamic-based charities that turn up with "alleged terrorist ties" may
wind up terror suspects themselves. Under the Patriot Act, any
organization that engages in legitimate as well as illegitimate activities
can be presumed a terrorist organization for all purposes. And the
prohibited activity that lands a group on the government's list need not
consist of violent acts directed at people; anything that is intended to
destabilize a government or "influence" its policy by coercion can be
termed terrorism. Flooding a congressional office with e-mails critical of
government policies, and jamming a server in the process--is that an act
of terror? Some organizations that use the Internet to ask people to
e-mail members of Congress fear that it might be so construed.
As well they should. For the war on terror now encompasses a breathtaking
range of new government powers here at home. More than ever before, the
mere fact of dissent could make you a target in the war on terror.
The 1996 Antiterrorism and Effective Death Penalty Act
To all my fellow Americans ... I say, one thing we owe those who have
sacrificed is the duty to purge ourselves of the dark forces which gave
rise to this evil. They are forces that threaten our common peace, our
freedom, our way of life.
--President Bill Clinton, April 23, 1995, speaking of Oklahoma City.
Most critics of the terror war's assault on civil liberties mark its
beginning with the Clinton administration's Antiterrorism and Effective
Death Penalty Act of 1996. But the US government's propensity for spying
on its own citizens on the professed grounds of national security goes
back much further, and it's not just a relic of the Hoover days. As
recently as the 1980s, the FBI conducted surveillance of Americans
involved in a variety of causes. Activists who supported rebel groups in
El Salvador, attended rallies protesting American aid to the Salvadoran
military, signed petitions, or possessed reading material associated with
the Committee in Solidarity with People of El Salvador (CISPES) were
targeted for activities labeled as "terrorist" or "leftist."
These investigations went on for more than two years, until they were
finally halted by congressional hearings and the exposure of documents
obtained under Freedom of Information Act requests. Congress denounced the
scope of the anti-CISPES investigations, and in 1994 enacted a law
protecting First Amendment activities from FBI investigations. That law
was expressly repealed in the Antiterrorism Act of 1996.
The 1996 Antiterrorism and Effective Death Penalty Act was the Clinton
Administration's comprehensive response to both political and personal
violent crime. Making the death penalty "effective" meant making it harder
to appeal convictions of capital offenses. In terms of fighting terrorism,
the law was a reaction to bombings of the World Trade Center in 1993 and
the Oklahoma City federal building in 1995. Like the Patriot Act, it too,
passed the Senate easily--91-8. (Clinton also cited the suspicious crash
of TWA Flight 800 and the bombing at Atlanta's Olympic Village in 1996 as
further proof of the dangers.) According to its critics, including
Georgetown University Law School Professor David Cole, the law never
yielded any significant protection against terrorism--everything a
"terrorist" does was already illegal--although it did lead to substantial
incursions on constitutional rights, such as:
Allowing the government to deport immigrants based on undisclosed
evidence; Making it a crime to support even the lawful activities of an
organization labeled as a terrorist group by the State Department;
Authorizing the FBI to investigate the crime of material support for
terrorism based solely on activities protected under the First Amendment,
notably specifically allowing agents to attend religious services at
Muslim mosques "undercover"; Freezing assets of any US citizen or domestic
organization believed to be an agent of a terrorist group, without
specifying how an "agent" was identified; Expanding the powers of the
secret court that administers the Foreign Intelligence Surveillance Act
(FISA), where federal judges sit in secret to consider--and mostly
rubber-stamp--Justice Department requests for widespread surveillance of
"terrorists." The surveillance methods in question include pen registers
and "trap-and-trace" logs, methods that can capture incoming and outgoing
telephone calls; Repealing the law that barred the FBI from opening
investigations based solely on activities protected under the First
Amendment--such as the anti-CISPES investigations--and allowing such
surveillance to go forward if the individuals were believed to be
associated with any person or organization labeled as "terrorist;"
Allowing the Immigration and Naturalization Service to deport (mostly
Muslim) citizens upon the order of INS officials. The evidence typically
was not disclosed to the deportees, and the decision of the official was
not subject to challenge in a federal court.
The USA Patriot Act of 2001
How will we fight and win this war? We will direct every resource at our
command--every means of diplomacy, every tool of intelligence, every
instrument of law enforcement, every financial influence, and every
necessary weapon of war--to the disruption and to the defeat of the global
terror network. -
-President Bush, September 20, 2001
With little debate, the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA
PATRIOT ACT) of 2001 was passed just 6 weeks after the September 11
attacks. Though several elected officials expressed trepidation at what
appeared to be a dismantling of the 1st, 4th, 5th, and 6th amendments to
the Constitution, only 1 member of the Senate, Russell Feingold (D-Wisc.),
had the courage to vote against it.
The media was slow to pick up on the controversial provisions of the act,
which, within its more than 275 pages, amended dozens of existing criminal
and civil statutes. It wasn't until mid-2002, when the Justice Department
began to hand down indictments under the act, that people started to take
notice.
The act expanded guilt by association to the point that the most tenuous
connection to a "terrorist organization" (as designated by the Secretary
of State) can now lead to charges. Several groups of people have been
indicted for operating terrorist cells in Portland, Buffalo, Detroit, and
Moscow, Idaho. The trial in the Detroit case began in the third week of
March and is expected to last for six weeks or more. Some charges against
Muslim charities have led to plea bargains to drop terrorist charges in
exchange for pleas to minor tax or fraud charges. The government's
successes in the courtroom have not, to date, matched John Ashcroft's
bravado in announcing the indictments in public press conferences. But the
chilling effect of being arrested for crimes of terror cannot be
underestimated, as many American citizens and resident aliens have
learned.
Some of the more drastic incursions on civil liberties resulting from
these Patriot Act provisions:
It is a crime for anyone in this country to contribute money or other
material support to the activities of a group on the State Department's
terrorist watch list. Organizations are so designated on the basis of
secret evidence, and their inclusion on the list cannot be challenged in
court. Members of any such targeted organization can be deported even if
they have not been involved in any illegal activities. The government
freely admits that some of the groups it will designate are broad-based
organizations engaged in lawful social, political, and humanitarian
activities as well as violent activities.
The FBI can monitor and tape conversations and meetings between an
attorney and a client who is in federal custody, whether the client has
been convicted, charged, or merely detained as a material witness. New
York City attorney Lynne Stewart (the court-appointed representative of
Sheik Abdel Rahman, who was convicted in the 1993 World Trade Center
bombing) has been indicted for aiding and abetting terrorism based on
conversations with her client. Her trial is set for January 2004, and the
prosecution is clearly intended as a warning: Attorneys representing
people charged with terrorism-related crimes will be watched as closely as
the defendants.
Americans captured on foreign soil and thought to have been involved in
terrorist activities abroad may be held indefinitely in a military prison
and denied access to lawyers or family members. No federal court can
review the reason for the detention. Such is the plight of Yaser Hamdi,
detained in a Navy brig in Norfolk, Virginia, whose family and attorney
made valiant efforts to gain access to him. The Fourth Circuit Court of
Appeals overturned a federal trial judge's order that Hamdi be allowed to
meet with the federal public defender.
The FBI can order librarians to turn over information about their patrons'
reading habits and Internet use. The librarian cannot inform the patron
that this information has been provided. Librarians, on the whole, are
outraged at their new role; some have taken to posting signs in the
library warning users not to use the Internet, others to destroying their
logs of Internet users. One librarian said to a Washington Post reporter,
"This law is dangerous.... I read murder mysteries--does that make me a
murderer? I read spy stories--does that mean I'm a spy?"
Foreign citizens charged with a terrorist-related act may be denied access
to an attorney and their right to question witnesses and otherwise prepare
for a defense may be severely curtailed if the Department of Justice says
that's necessary to protect national security. Jose Padilla, the American
Muslim fingered by Ashcroft last year as a would-be "dirty bomb" builder,
is a case in point.
Resident alien men from primarily Middle Eastern and Muslim countries must
report for registration. And hundreds of the ones who have reported have
been detained and arrested for minor immigration infractions. It recently
came to light that immigration authorities are refusing to let the men
appear with their attorneys, a refusal that is a violation of Bureau of
Citizenship and Immigration Services (BCIS, formerly the INS) regulations.
Lawful foreign visitors may be photographed and fingerprinted when they
enter the country and made to periodically report for questioning.
The government can conduct surveillance on the Internet and e-mail use of
American citizens without any notice, upon order to the Internet service
provider. Internet service providers may not move to quash such subpoenas.
The Transportation Security Administration (TSA) can search any car at any
airport without a showing of any suspicion of criminal activity.
The TSA can conduct full searches of people boarding airplanes and, if the
passenger is a child, the child may be separated from the parent during
the search. An objection by a parent or guardian to the search will put
the objector at the risk of being charged with the crime of obstructing a
federal law enforcement officer and tried in federal court. Travelers in
Portland and Baltimore have reported such arrests.
The TSA is piloting a program to amass all available computerized
information on all purchasers of airline tickets, categorize individuals
according to their threat to national security, and embed the label on all
boarding passes. The Computer Assisted Passenger Prescreening System
(CAPPS II) program is designed to perform background checks on all airline
passengers and assigns each passenger a "threat level." Passengers will
not be able to ascertain their classification or the basis for the
classification.
The TSA distributes a "no-fly" list to airport security personnel and
airlines that require refusal of boarding and detention of persons deemed
to be terrorism or air piracy risks or to pose a threat to airline or
passenger safety. This is an expansion of a regulation that since 1990 has
looked out for threats to civil aviation. Names are added daily based upon
secret criteria. Several lawsuits that challenge these regulations are now
pending, some from irate passengers who were mistaken for people on the
list.
American citizens and aliens can be held indefinitely in federal custody
as "material witnesses," a ploy sometimes used as a punitive measure when
the government does not have sufficient basis to charge the individual
with a terror-related crime. The 1984 material witness law allows the
government to detain citizens at will for an arbitrary period of time to
give testimony that might be useful in the prosecutions of others. A
Jordanian man picked up a few days after September 11 was held more than 9
months before being released. And last week a federal judge in Oregon
ordered that Mike Hawash, a software engineer and long-time naturalized
American citizen who has been held in solitary confinement in a federal
prison for more than a month, be questioned by April 29, 2003. It is
notable, however, that the judge has already conducted a secret hearing
that determined Hawash's detention to be lawful.
Immigration authorities may detain immigrants without any charges for a
"reasonable period of time." The BCIS need not account for the names or
locations of the detainees, and what constitutes a "reasonable period of
time" is not defined.
American colleges and universities with foreign students must report
extensive information about their students to the BCIS. BCIS in turn may
revoke student visas for missteps as minor as a student's failure to get
an advisor's signature on a form that adds or drops classes. College
personnel cannot notify students to correct the lapse in order to save
them from deportation. To a very large extent, campus police and security
personnel have become agents of the immigration authorities.
Accused terrorists labeled "unlawful combatants" can be tried in military
tribunals here or abroad, under rules of procedure developed by the
Pentagon and the Department of Justice. All it takes to be named an
unlawful combatant is the affidavit of a Pentagon employee, who is not
required to provide the rationale for his or her decision, even to a
federal judge. (In the case of Yaser Hamdi, the federal appellate court
ruled that it has no authority to look behind this affidavit and question
the determination.) Unlawful combatants are also denied counsel and
contact with family members. In fact, hundreds of "unlawful combatants"
are still being held in Guantanamo Bay, Cuba, without attorneys, without
family contact, and under conditions said by some to be tantamount to
physical and psychological torture. A federal court ruled in March that
these persons had no access to the federal courts since they were on
Cuban, not American, soil.
A warrant to conduct widespread surveillance on any American thought to be
associated with terrorist activities can be obtained from a secret panel
of judges, upon the affidavit of a Department of Justice official. If
arrested as a result of the surveillance (as was the case with the
attorney, Lynne Stewart), the defendant has no right to know the facts
supporting the warrant request.
The FBI can conduct aerial surveillance of individuals and homes without a
warrant, and can install video cameras in places where lawful
demonstrations and protests are held. Facial recognition computer programs
are used to identify persons the FBI deems suspicious for political
reasons. An ACLU employee in South Carolina was recently indicted for the
federal offense of being in a "restricted area" at the Columbia, South
Carolina airport in October 2002, when President Bush made a political
campaign appearance. (The South Carolina AG, who happens to be the son of
retired Senator Strom Thurmond, authorized the indictment.)
Most of these restrictions on liberty were not part of the letter of the
Patriot Act; they were shaped by means of rules and regulations adopted in
agencies and departments of government with little notice to the public.
That's because the Patriot Act granted sweeping new powers to agencies
like the Department of Justice, the FBI, and BCIS to go their own way in
prosecuting the war on terror.
Will the Clinton/Bush expansion of federal powers help much in protecting
the country from terrorism? That is an imponderable, since we can't know
what might have happened by now, or what might happen going forward, in
their absence. But the arrests hyped by Ashcroft so far don't suggest that
his new powers are yielding much. One of the most notorious cases involved
Jose Padilla, an American-born Muslim arrested for allegedly plotting to
build a dirty bomb. Padilla is still being held without charges, and many
believe it's because the government has no real case against him. (The
file on Padilla is secret, obviously, but some news accounts have
suggested his sole crime was attempting to download "dirty bomb"
construction plans from the Internet.) Several people charged with
terrorist-related acts have pled guilty to some charges, such as visiting
an al Qaeda training camp (as defendants in Buffalo have recently done),
or to lesser non-terrorist-related offenses (money laundering instead of
financing terrorist activities), in order to avoid the risk of conviction
and longer sentences. The Justice Department seeks grand jury indictments
of the "kitchen-sink" variety--throw in everything remotely chargeable,
and then declare victory when the defendant pleads to 1 or 2 charges.
What we do know about these laws is that they allow government agents to
be more aggressive and, when they wish, more abusive. Most of the people
indicted in Buffalo and Portland have been charged with being terrorist
sympathizers because they were in the presence of people themselves
labeled as terrorist sympathizers (visiting their homes, for instance) or
because they had contributed to a non-profit organization that the
government has decreed to have a connection to terrorism somewhere in the
world. Attorney Lynne Stewart was indicted for the "crime" of zealously
representing a convicted terrorist she was court-appointed to defend.
The proposed Domestic Security Enhancement Act of 2003
There is no Patriot Act II. That said, it doesn't mean that we aren't
constantly thinking and discussing how to make things better, safer.... So
if there are some leaks... it's about what we've been thinking.
--Attorney General John Ashcroft, March 4, 2003
On February 7, 2003, the nonprofit Center for Public Integrity obtained a
leaked draft of what is being called Patriot Act II. John Ashcroft
immediately went on the defensive, taking pains to call it a mere trial
balloon--something to get the debate moving. The version posted on the
center's site at www.cpi.org belies such talk; it indicates that the draft
was delivered to Vice President Cheney and House Speaker Dennis Hastert.
Against a backdrop of perpetual war, it's hard to imagine that Congress
will put up much of a fuss over Patriot II. Who could vote against better
domestic security? Here are some of the more unsettling proposals:
Broadens the definition of Americans who could be under surveillance
without a warrant, and mandates further coordination between state, local,
and federal law enforcement for the purpose of conducting surveillance.
Translation: The feds can instruct your local police to keep an eye on
you.
Creates new crimes and punishments relating to nonviolent activities
linked to terrorist groups, which could include making charitable
contributions to a group on the State Department's terrorist list. The
list includes organizations that provide humanitarian aid to Muslims
across the world. Under Patriot I, the government needs to show that the
contributor knowingly "aided and abetted" terror, a tall order since most
people who give to Islamic charity and relief organizations are motivated
by humanitarian rather than political goals.
Expands surveillance powers to grant easier government access to bank
accounts, home computers, telephones, and credit card accounts based upon
subpoenas issued by the Department of Justice. The entities subpoenaed to
obtain information about you could not refuse to provide the information
(an expansion of current powers under Patriot I). Evidence obtained that
would link a person to terrorism or terrorist groups (as defined by the
State Department) would not be disclosed except to a court (individuals
would have no right to know why they were charged) and pretrial detentions
would be mandatory. You would have little possibility of defending the
charges.
Makes some nonviolent acts punishable by the death penalty if they are
linked to broader "terrorist activities."
Empowers the federal government to conduct its own autopsies of victims of
terrorism and "other deadly crimes," presumably any type of murder.
Amends the Freedom of Information Act to curtail even further the public's
ability to obtain information about people detained or charged. If you
were arrested for a crime of terror, your accuser could remain nameless.
Forces any terrorism suspect to give a DNA sample to the federal
government, the results of which could then be shared with state and local
law enforcement.
Grants government the power to strip away the citizenship of any American
involved in the lawful activities of an organization deemed to have
terrorist ties. Such people could be held indefinitely, or deported to any
country that agreed to take them.
Increases federal powers over immigrants by means that include: expedited
deportation proceedings, the criminalization of even minor paperwork
violations (such as a student's failure to report that he or she dropped a
course), and even more limited judicial review of immigration rulings.
Just in case Patriot II doesn't make it into law, Congress is scheduling
hearings to extend Patriot I beyond 2005, when some of its more
controversial measures are set to expire.
How Much Is Too Much?
"We will...defend freedom, and justice, no matter what the cost."
Attorney General John Ashcroft, April 9, 2002
"Freedom" has been part of the post-September 11 mantra. The terrorists
hate our freedoms. We have to defend our freedoms. We toppled Saddam
Hussein's regime so that Iraqis might claim their God-given freedom.
Weighed against the Bush administration's legal actions at home, this line
of rhetoric is ironic, to say the least.
Patriot I was enacted in an atmosphere of panic, paranoia, and patriotism.
Ashcroft mounted quite an offensive when he laid it out before Congress.
If you dared to criticize in that hour of peril, you were by definition
soft on terrorism. The press now admits that it rolled over for Patriot I;
the handful of journalists who questioned its provisions got hate mail and
death threats for their trouble. But it left even some Republicans
thinking Ashcroft had gone too far.
Though there isn't much they can do about it. We may have Congress to
thank for the Patriot Act itself, but Ashcroft's executive orders and the
regulations hastily promulgated by the agencies under his control are
where the real action has been. In 2002, more than 1,200 secret warrants
were issued by Ashcroft's Justice Department, FBI field offices, and the
secret Foreign Intelligence Surveillance Court (FISA) to conduct
surveillance on all manner of personal activities and records. Indeed,
people recently arrested for "crimes" allegedly uncovered as a result of
such secret surveillance have been stunned to learn that the Patriot Act
specifically disallows any judicial review of the legality of the warrant
or of the evidence obtained as a result. Secret detentions, secret
evidence, secret trials. What's next? Secret executions?
The administration engaged in much finger-pointing recently when Cuba
secretly tried some of its political dissidents. The trials were in
secret, appeals were summarily denied, and harsh sentences were meted out.
Cuba claims the dissenters were a threat to its security, echoing
Ashcroft's justification for his Justice Department's heavy-handed
tactics. Already in this country we have closed trials and, for the first
time in American history, closed arguments in a federal appeals court. The
Fourth Circuit Court of Appeals in Richmond, Virginia, a federal court
that sometimes makes the U.S. Supreme Court look liberal, is closing to
the public the appeal of Zacharias Moussaoui, who, according to the
Justice Department, was involved in planning the September 11 terrorist
strikes.
The government is appealing U.S. District Court Judge Leonie Brinkema's
ruling that the Justice Department must give Moussaoui and his lawyers
access to the government's star witness against him. Judge Brinkema says
that the Justice Department is cloaking its case in such a shroud of
secrecy that a fair public trial, as required by the 6th Amendment, will
be difficult if not impossible. The Justice Department has suggested that
if it loses on appeal--not likely, given the Fourth Circuit's propensity
to rule for the government--it may remove Moussaoui to Guantanamo, Cuba
and try him in a military tribunal. And no US court can touch him then.
Some parents of Afghan prisoners in Guantanamo filed a lawsuit challenging
their sons' continued detention; it was tossed out by a District of
Columbia federal judge. Lawyers for the plaintiffs argued that the
detention was a violation of the Geneva Convention on the treatment of
POWs. But the administration has termed them (like Yasir Hamdi) unlawful
combatants: They were not wearing the uniform of any recognized country,
and thus they are not entitled to the protections of international law.
The Court, in one of the all-too-many post-September 11 rulings fraught
with catch-22 reasoning, said that the detainees are not in the United
States, but in a foreign country, and hence the doors of U.S. courthouses
are closed to them. The decision places a Guantanamo prisoner in legal
limbo, even though he is imprisoned all the while by the American
government on a US military installation.
Those who expect that elected officials and the courts will one day decide
to restore our liberties have not spent much time looking at history. The
Supreme Court has traditionally taken a hands-off approach to curbs on
presidential power in wartime--and this, after all, is to be a war of many
years' duration. Chief Justice Rehnquist wrote a prescient book on this
subject; Justice Antonin Scalia has said, in essence, that the Bill of
Rights is not a contract at all, just a rough guide that courts were free
to treat as circumstances required. This sentiment was recently echoed by
Justice Stephen Breyer as well.
The Supreme Court will likely hear the 1st cases to test the limits of the
Patriot Act and other attacks on freedom in its 2003-2004 term. In the
meantime, President Bush is handily convincing the Senate to approve his
right-wing judicial nominees one after another. Once his judges don their
robes, the federal judiciary will be, by some estimates, 65 percent or
more conservative Republican. The Supreme Court has become so predictably
political that the loss of just one liberal justice--or frequent swing
vote Sandra Day O'Connor--will tip the court all the way to the right. And
since Congress has amiably ceded its duty to uphold the Constitution in
the laws it enacts, we will be left with exactly one branch of government,
the executive.
(source : CounterPunch (Elaine Cassel teaches law and psychology and
practices law in the District of Columbia and Virginia. She is a
contributor to CounterPunch and Findlaw.com's Writ, and keeps a watch on
the Bush Administration's rewriting of the Bill of Rights on her blog site
hosted by Minneapolis, Minnesota's City Pages. This article originally
appeared in City Pages, edited by longtime CounterPunch contributor Steve
Perry)
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