U.S. Commission on Civil Rights

Civil Rights Concerns in the Metropolitan Washington, D.C., Area in the Aftermath of the September 11, 2001, Tragedies

Chapter 4

National Crises, Civil Rights, and Civil Liberties: A Historical Review

Panel Two heard from two specialists in the area of civil liberties and law enforcement, who discussed the impact of past national crises on civil rights and civil liberties protections in order to provide historical perspective on the situation in relation to September 11. They emphasized the following points:

• The current detentions and deportations of immigrants under antiterrorism statutes recall earlier events in U.S. history.

• Tactics currently being used guilt by association, racial and religious profiling, secrecy, and exemption of government actions from oversight and accountability were also used in past investigations, and have proven ineffective in identifying or preventing actual criminal activity.

• It is possible to have a successful antiterrorism strategy that fully respects the Constitution. Tactics that respect civil rights are more effective in getting at the truth.

Kit Gage
Director, First Amendment Foundation and National Committee Against Repressive Legislation

The history of how our government pursues what it understands as politically based crime varies little except in terms of who gets rounded up each time. In the Palmer raids, the government responded to the bombings that had taken place by rounding up thousands of immigrants and anarchists, holding them in jail, and deporting many of them, without ever bringing criminal proceedings against them.[1] They never found, and perhaps never really sought, the real perpetrators of the crimes. That was the not-so-honorable beginning of the FBI that J. Edgar Hoover was in charge of.

During World War II it was largely Japanese Americans who were rounded up and placed in detention without suspicion of having committed a crime. During the McCarthy era we saw the criminalizing of membership in organizations, apart from any criminal activity. The government has continued to find peaceful protest and political change movements dangerous even though the Constitution and Bill of Rights explicitly provide for them. In the 1960s, the Black Panther Party was destroyed by FBI activity through COINTELPRO.[2] Fred Hampton was murdered as a result of a collaboration between the FBI and the Chicago police department.[3] It's a very sad history in this country, but it's one that we have to understand clearly because it's a continuing, straight-line history.

Following COINTELPRO there was a movement to curb FBI abuses and protect First Amendment activity, resulting in part with the Pike and Church committee hearings in Congress and their comprehensive reports. However, law enforcement still has difficulty understanding the difference between going after crime and going after association.

The 1996 antiterrorism act makes it a crime to give material support to organizations that the U.S. government, using very broad criteria, deems to be foreign terrorist organizations.[4] You can give diapers to an orphanage in an area that's under the control of a listed foreign terrorist organization and your gift of diapers is a crime under the 1996 law. The USA Patriot Act expands the penalties for that kind of activity.[5] Since 1996, the government has been using secret evidence to deny bond for people it wants to deport detaining them for several years without charge and then trying to deport them. The secret evidence, when released, usually turns out to be garbage easily rebutted.

The USA Patriot Act massively increases government secrecy and further criminalizes dissent. People cannot learn the charges against them, and the government is keeping the courts out of appeals processes as lest people bring up the Bill of Rights or bar the use of secret evidence. The act also expands the government's authority to conduct covert searches, so-called sneak and peek, when federal agents search your home without your knowledge. Instead of going after the people who committed the terrorist crimes, the government largely seems to be going after people based on their ethnicity and religion. Arab Americans are being rounded up for questioning and deportation with no charges or allegations of criminal activity. This is not only discriminatory but is also poor law enforcement practice because it takes in too many people. We need to do something that is focused and works, not just round up the usual suspects.

The United States will never be able to stop all terrorist acts, just as we can't eliminate all crime by passing laws against it. We can try to minimize and prevent terrorism by going after the people whom we have information that they are planning or have committed such acts. If you allow due process allow evidence to be seen and rebutted you're more likely to get the right people. An organization should not be targeted just because it holds a position at odds with U.S. foreign policy; the question should be, are the individuals engaging in criminal activity?

Cases are now being brought under habeas corpus for people detained. It took a while to figure out that people were being moved from all over the country to New Jersey to be deported right after September 11.[6] It was as though they had disappeared, and the government said it could not give out any information in order to protect their own privacy. The families didn't know where they had gone.[7]

James X. Dempsey
Deputy director, Center for Democracy and Technology

Those of us who talk about civil liberties recognize the severity of the threat of terrorism. But we reject the idea that civil liberties and civil rights are at odds with national security, or that we can purchase security by giving up some of our civil liberties. History proves this to be incorrect. We need to find responses to terrorism that serve both civil liberties and national security interests.

Three tactics have been used time and again in history: (a) guilt by association, stereotyping, and targeting people by race, ethnicity, political beliefs, and religion; (b) secrecy; and (c) shielding of government action from oversight and accountability. These tactics were used with the detention of Japanese Americans during World War II, when the government said it had secret evidence of sabotage by Japanese Americans; years later, the government admitted there was no such evidence. They were used again in COINTELPRO, the counterintelligence program of the 1960s, and in the CISPES investigation in the 1980s.[8] The CISPES probe became a nationwide investigation of hundreds of groups and thousands of individuals, all conducted under the cloak of secrecy. Neither COINTELPRO nor the CISPES investigation turned up a single instance of anyone planning violence.

The 1996 antiterrorism act, passed in the wake of the Oklahoma City bombing and the first World Trade Center bombing, was also based on guilt by association, secret evidence, and exemption from oversight. The FBI and the Justice Department asserted strenuously to Congress that they knew who the terrorists were and could deport them, but couldn't let the evidence be shown in public, so they needed this secret proceeding. They got that authority, and used it to bring proceedings against 20 or 30 aliens. They told people, We won't even tell you the name of the terrorist group you're alleged to be a member of because it's secret. How can you defend yourself against an allegation that you're a member of a group if the government won't even tell you what the group is? Lawyers challenged those cases in court and every one of them fell apart; judges looked at the evidence and said it doesn't add up. It was purely guilt by association.

But what was really outrageous about this was that while the government was engaged in its secret proceedings, 19 other people were in this country planning to hijack airplanes and fly them into the World Trade Center and the Pentagon, and they got away with it. They weren't religiously or politically active, so these secret, guilt-by-association, exempt-from-oversight procedures never found them. The critical point is that throughout our history, these tactics do not work. That has been proven time and again.

As a society, we've learned that government should have the law enforcement power it needs, but that there must be rules and constraints to ensure that that power is properly used. During the 1960s and 1970s, the courts became more active in enforcing the Bill of Rights. We passed the Freedom of Information Act (FOIA), limited intelligence agency operations in the United States, and imposed judicial oversight for wiretapping and other intrusive techniques. We created the concept of congressional oversight, and created nongovernmental watchdog organizations.

But since September 11, 2001, many of these constitutional checks and balances have been eliminated, pushed aside, or suspended. People have been in jail for six months on secret evidence, probably based on guilt by association. There has been a series of interviews based solely on ethnicity, age, and gender. There is a crackdown on access to information and an effort to avoid judicial and congressional oversight.[9]

This raises broader issues about the Freedom of Information Act and about the independence of the judiciary. Over the years, despite Congress clear intent to cover national security information under the FOIA, the courts have almost always deferred to executive branch claims of national security as a basis for withholding information. So this reform, which has been extremely positive in many ways, has not been effectively enforced by the courts. Just as we saw judges become handmaidens to the war on drugs, I think that judges are not exercising the judicial role adequately in this instance. Over the years, judges who have suppressed evidence in drug cases or criticized government search-and-seizure activities have come under political criticism, and the message has gone out to the judiciary not to play that independent role. And so I think there needs to be constant defense of the power of an independent judiciary to stop executive branch actions that go too far.

Civil rights and civil liberties are not antithetical to an effective terrorism strategy, but are part of that strategy because tactics that respect civil rights are more effective in getting at the truth. We don't have judicial review just for the sake of filing lawsuits. Judicial review provides necessary scrutiny to prevent executive branch officials, who are acting under great pressure, from making decisions not based on sound evidence.

People should be held responsible for their individual actions. Rather than use guilt by association or ethnicity or religion, we need to do the hard work of identifying individuals engaged in criminal activity. How do we know we have the right people? We prove it in court, subject to cross-examination.

It is possible to have a successful antiterrorism strategy that fully respects the Constitution. Four key elements of such a strategy are (a) focus on criminal activity (including planning and conspiring) rather than on political or religious activity; (b) narrow the focus of the investigation rather than widen it; (c) ensure judicial review and control that covers the initiation of investigations, the use of investigative techniques, the holding of people, and the imposition of punishment; and (d) ensure oversight and accountability by Congress, internal review within the Justice Department, and a watchdog function by outside organizations.

Those who support civil rights and civil liberties should use what power and authority they have to ask questions of government officials, of police who are cooperating with the FBI, of the Justice Department. How are they carrying out these activities, how many people are being held, and what for? Publish the answers you receive, and push your elected representatives to pursue these questions. Those who care about civil liberties must ask the effectiveness question: Are these policies really working?[10]