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Have America's Anti-Terror Laws Destroyed Individual Rights?
A Review of Elaine Cassel's The War on Civil Liberties
By NOAH LEAVITT
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Friday, Sep. 10, 2004
Elaine Cassel, The War on Civil Liberties: How Bush and Ashcroft have Dismantled the Bill of Rights (Lawrence Hill Books, 2004)

This week, our nation somberly marks the third anniversary of the devastating attacks against New York and Washington D.C. In the three years since 9-11, America has, thankfully, not suffered a second terrorist attack.

Members of the Bush Administration -- especially Attorney General John Ashcroft -- have claimed that this is proof of the success of their anti-terror laws, and proof that extending and expanding these laws will make us even safer. Indeed, at the Republican convention, high-level politicians said that Congress must not only reauthorize, but strengthen such legislation.

But even if the laws are effective - and a very strong case can be made that they are not -- can we afford the civil liberties cost? In her new book, The War Against Civil Liberties, Elaine Cassel reminds us how much the legal landscape has changed in this short period.

Indeed, Cassel argues that the past three years have altered America's constitutional order such that we may never again be able to enjoy the broad individual rights and presumptions that were the hallmark of our laws before 9-11. The Executive Branch, she persuasively contends, will never give up the power it has been given - and curtailment of our liberties will continue to expand, sweeping in broader and broader sections of the population.

Cassel, an attorney and author, is known for her popular blog covering the Justice Department, federal judiciary and Executive Branch. (She also is a guest columnist and book reviewer for this site). In less than 200 pages - one afternoon of reading - her timely book provides a sweeping yet nuanced look at how our constitutional rights have been drastically diminished since 9-11.

In her book, Cassel has neatly woven three years of national and international media coverage into a series of manageable examples -- examples that allow the reader to quickly grasp her larger critical arguments. Cassel skillfully connects individual news stories to a much broader historical context.

Cassel's writing is informative and accessible while still being scholarly, making the book appropriate for both lawyers and non-lawyers - as well as for both newshounds, and those new to these discussions.

The War Against Civil Liberties: The Legal Background

Cassel both explains and critiques the major laws at issue in the War on Terror: The 1996 Antiterrorism and Effective Death Penalty Act; the USA PATRIOT Act of 2001, and the Homeland Security Act of 2002. She demonstrates how these laws, especially viewed together, drastically undermine the Bill of Rights - shifting tremendous amounts of power to the Executive branch, severely compromising the American system of checks and balances.

Cassel also adeptly chronicles and comments on federal courts' rulings in a number of terrorism prosecutions - including the problematic cases of Zacarias Moussaoui, John Walker Lindh, and alleged terrorist cells in Lackawanna, Detroit, Portland, Seattle and Alexandria. She contends that in such cases, the courts have allowed violations both of the Fourth Amendment - which limits warrantless searches and seizures - and the Sixth Amendment, which guarantees a fair trial.

In addition, she focuses on two cases involving American attorneys -- Lynne Stewart and Jesselyn Radack. Both have been targeted by the Justice Department.

Stewart allegedly aided communications by the terrorists she represented. But her attorney contends, and Cassel believes, she is really being persecuted for that representation itself.

Meanwhile, Radack spoke out against the infringement of John Walker Lindh's constitutional rights, while she was at the Department of Justice - contending that his interrogation violated his Fifth Amendment right against self-incrimination. Her conscientious was punished.

The War Against Several American Citizens

In particular, Cassel focuses on the two famous "enemy combatant" cases that involve American citizens - Hamdi and Padilla. As Cassel explains, in practice the enemy combatant designation means solitary confinement in a brig without access to counsel or the outside world, and increased likelihood of being deported or even facing the death penalty. Often, Cassel notes, DOJ will use "enemy combatant" status as a threat against even those defendants for whom it never ultimately seeks such status.

Analyzing these cases, Cassel finds that the Ashcroft Justice Department has followed a predictable pattern: It makes dramatic, highly public allegations that distort the facts. It then accepts pleas to lesser charge, in exchange for prison sentences that are unusually harsh for those lesser charges. Then it claims credit for "winning the war against terrorism."

(With Yaser Hamdi, it seems, the pattern is a new one: Imprison a citizen for years, claiming he is an intense security risk. Then agree to his deportation to the country where he grew up, Saudi Arabia - without admitting you were wrong about the risk he posed.)

The War Against Muslims and Arabs - and Their Charities

Recently, it was reported that the U.S. Census Bureau at least twice gave demographic data about Arabs living in the United States, including their zip codes and nations of origin, to the Department of Homeland Security. Plainly, this is an Administration that believes in racial profiling - to say the least.

While Cassel's book went to press long before this development, this recent news fits well with her contentions regarding the Administration's treatment of Muslims and Arabs.

As Cassel noted, more than 13,000 Arabs and Muslims have been detained and deported since 9-11. Often, they were not charged with any offense, their families were not informed, and they were denied access to counsel. And not a single one has been charged with an act of terror.

Even the DOJ's own Inspector General's report was highly critical of this racially tainted, dragnet justice (as Anita Ramasastry explained in a column for this site.) Yet as Cassel notes, rather than apologizing, Ashcroft proudly told Congress two days after the report was released that he would do it all again.

Cassel reviews a series of cases where the Bush government has closed Islamic charities. Again, however, this has been a very problematic exercise.

For example, as the staff of the independent 9-11 panel recently determined, the Bush administration's shutdown of two Chicago-area Islamic charities has not produced a single terrorism-related criminal conviction - despite a harsh civil liberties cost.

Unfortunately, Cassel's book, while rightly sensitive to the plights of Muslims and Arabs, seems at times to buy into the kind of damaging sweeping conspiracy claims that greatly harm Jews. She complains, for instance - without any citation -- that those with Palestinian heritage are being targeted "at a time when support of Israel is second only to the war on terrorism in the administration's foreign policy agenda."

In addition, Cassel approvingly quotes individuals who share this perspective -- and this lack of citation. For instance, she quotes an attorney who in a 2003 speech "noted that for ten years, Muslims have been under fire because of the Zionist lobby." (Emphasis added). In generally, Cassel seems to uncritically accept comments linking Muslim misfortune to groups that are possibly allied with Israel.

To do so is wrong - and beneath a writer who in her book is so rightly focused on the importance of assessing individuals' personal responsibility - or in many cases, lack thereof -- for harmful activity. Jews are a section of the population that has historically known what it means to be targeted for persecution during times of great social stress. When Muslims suffer parallel persecution - as they are in America today -- Jews should never be assumed to be somehow at fault.

A War Without End?

The War Against Civil Liberties concludes by arguing that the war against terror - far from being "winnable," will be a war without end. Noting that terrorism is a concept, a tactic, and not an enemy - and thus can never be fully vanquished - Cassel also aptly notes how terrorism is being radically redefined and expanded. She argues, too, that such redefinition means there will be no end to the narrowing of our civil liberties.

In particular, Cassel argues that the term "terrorist" is coming to mean "someone with whom the U.S. government disagrees." She provides an alarming list of individuals who have been charged with crimes of "terrorism" that were anything but. They range from a producer of methamphetamine in North Carolina, to the Beltway snipers in suburban Virginia, to a woman on a Hawaii-bound cruise ship who left threatening notes for her boyfriend.

Cassel also describes how the USA PATRIOT Act has been used for obviously non-terrorist crimes. It has supported a subpoena of records in a Las Vegas bribery and racketeering case. It has been used to prosecute a scientist at Texas Tech University who lied about missing vials of bacteria.

Cassel predicts that not only law enforcement, but surveillance as well, will expand as the definition of terrorism bloats to encompass more and more. She cites a number of current examples: Banks are now required to collect more information about people opening deposits; the FBI is increasing monitoring of the Internet; Congress has authorized more control of academic institutions receiving federal funding concerning international topics; and a variety of data mining programs have been created to look for patterns of behavior that the programs' creators believe may point to terrorist threats in our society. (In columns for this site, Anita Ramasastry has commented on a number of these programs.)

Civil Liberties Should Be A Crucial Election Issue

President Bush told Republican convention-goers last week that we can win the war on terror by making preventive, preemptive strikes -- including preventive strikes on Americans and people living in America whom the government claims have ties to terrorists.

But Cassel's book adeptly shows how doing so may lead to a loss of the very values that have made the U.S. a model of freedom around the world. Her book should be required reading for every American in this coming election season.

Last week, Bush signed an Executive Order creating the "President's Board on Safeguarding American's Civil Liberties." Yet, within hours, critics strongly urged Congress to reject this suggestion, comparing it to a fox guarding a henhouse. The ACLU argued that the board -- as proposed -- would be comprised only of the government officials it is meant to oversee, would have no investigative authority, and would be utterly beholden to the White House. Ultimately, it would likely act as an expansion of - not a constraint on - Executive power.

Our society is torn in two by a deep schism over how much our rights can be infringed, and how much power the Executive branch can expand to assume control. Cassel's book offers a valuable guide to these issues - and a passionate argument for favoring the civil liberties that are now under fire.


Noah Leavitt, an attorney and author, is the Advocacy Director for the Jewish Council on Urban Affairs. The views expressed here are his alone. Leavitt can be contacted at nsleavitt@hotmail.com.