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Constitutional Rights Fall to State Security

November 21, 2001

The federal government wants Americans to believe that the Constitution only applies when it says so.  The actions taken by President George W. Bush and Attorney General John Ashcroft in secretly detaining untold numbers of individuals and calling for secret military tribunals to handle captured Taliban and Al Qaeda prisoners have been condemned as "a constitutional coup d'etat" which may lead to a "police state," according to experts on constitutional and international law.  While most if not all the detainees "look Arab" now, experts warn, tomorrow's detainees could be blond, blue-eyed -- or you.

"What we've seen, since Sept. 11, if you add up every thing that Ashcroft, Bush and their coterie of federalist society lawyers have done here, is a coup d'etat against the United States Constitution," said Francis A. Boyle, professor of international law at the University of Illinois. "When you add in the Ashcroft police state bill that was passed by Congress . . . that's really what we're seeing now.

"Since Sept. 11, we have seen one blow against the Constitution after another," Boyle said. "Recently, we've had Ashcroft saying that he had, unilaterally, instituted monitoring of attorney-client communications without even informing anyone—he just went ahead and did it, despite the Fourth Amendment ban on unreasonable searches and seizures without warrant and the Sixth Amendment right to representation by counsel."

The criminal investigation into the attacks, the largest in U.S. history, has netted about 1,200 detainees. But the Justice Department has failed to build a case against a single prime U.S. suspect in the terrorist attacks.


Nine weeks after the Sept. 11 terrorist attacks, federal authorities said on Nov. 15 that they had found no evidence indicating that any of the roughly 1,200 people detained in the United States played a role in the suicide hijacking plot.  However, numerous legal protections, based on constitutional and international treaties, appear to have been ignored or violated in the case of the 1,200 detainees.

"We are becoming a banana republic here in the United States, with 'disappeared' people, which was the phenomenon that we all saw down in Latin American dictatorships in the 1970s and 1980s, with the support, by the way, of the United States Government," Boyle said.  "We don't know where they are or the conditions under which they are being held. We have no idea whether they have access to attorneys. We do know one of them died, under highly suspicious circumstances, while in custody. There have been reports that he was tortured to death," he said.

The Constitution protects aliens in the United States, according to Boyle. "Clearly aliens here are entitled to the protections of the due process clause of the Fifth Amendment , as well as to the Article III (Section 2, Clause 3) basic constitutional rights in criminal cases, including indictment, trial before a federal district judge or jury, [rights relating to] venue and things of that nature," Boyle said.

"I'm surprised there hasn't been more of an outcry," said Robert B. Reich, secretary of labor under President Bill Clinton, about the long-term detentions and the administration's plans to monitor conversations be tween lawyers and terrorism suspects in federal custody. "The president is, by emergency decree, getting rid of rights that we assumed that anyone within our borders legally would have. We can find ourselves in a police state step-by-step without realizing that we have made these compromises along the way."

The foreign detainees are also protected by international law under treaties, including the International Covenant on Civil and Political Rights and the Vienna Convention on Consular Relations (VCCR).  The International Covenant on Civil and Political Rights, to which the U.S. government is a party, affords basic due process protections to everyone here in the United States, irrespective of their citizenship, according to Boyle.  The VCCR of 1963 calls for notification "without delay" of consular officials when one of their nationals has been arrested or "detained in any other manner."

Although Egypt, Pakistan, Syria, and Saudi Arabia are party to the VCCR along with the United States, the Justice Department informed me that it is using an abbreviated list of nations, the Mandatory Notification Countries, which includes only one Middle Eastern nation, Kuwait.  Spokesmen from the Justice and State Departments could not confirm that the United States was abiding by the terms of the VCCR and notifying the consulates of the detainees. However, Kareem Shora, legal adviser at the American Arab Anti-Discrimination Committee, said that it had received at least 10 complaints that this was not the case.

The Justice Department is planning to "round up" and question some 5,000 men, mostly from Middle Eastern countries, who entered the U.S. legally within the past two years.  "When will the FBI, the CIA and the National Security Agency start to turn these powers, that they have under the Ashcroft police state bill, against American citizens?" Boyle asks. "Clearly, that will be the next step."


Concerning the executive order calling for military tribunals to try alleged al Qaeda members, or even former al Qaeda members, in Afghanistan, Boyle says there is an "even more serious problem."

"The third and fourth Geneva Conventions, of 1949, clearly apply to our conflict now with Afghanistan," Boyle says. "These alleged al Qaeda members would be protected either by the third Geneva Convention, if they are fighters incorporated into the army there in Afghanistan, or by the fourth Geneva Convention, if they are deemed to be civilians. Both conventions have very extensive procedural protections on trials that must be adhered to."

Although a trial can be held, there are extensive rules and protections and basic requirements of due process of law, set forth in these treaties that must be applied. Failures to apply these treaties would constitute war crimes, according to Boyle.  The executive order calling for secret military tribunals is extremely dangerous because it invites reprisals by the Taliban, Boyle says. "What it is basically saying to the Taliban government and to al Qaeda is, 'We are not going to give you the protections of either the third or fourth Geneva Conventions' guarantees on trials.' What that means is that they could engage in reprisals against captured members of the United States Armed Forces.  "It opens up our own armed forces to be denied prisoner-of-war treatment," he said. "So, what we're doing here is exposing them to a similar type of treatment, which would be a summary trial, in secret, subject to the death penalty."

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