Socialist Action asked attorney Michael Smith for an article on recent government attacks on civil liberties.
Smith has given us the following essay, which he co-wrote as the introduction to the book, “Politics on Trial: Five Famous Trials of the 20th Century,” by attorney William Kunstler, just published by Ocean Press (www. oceanbooks.com.au).
By MICHAEL RATNER, MICHAEL STEVEN SMITH, and KARIN KUNSTLER GOLDMAN
Karin Kunstler Goldman is an attorney in the N.Y. state attorney general’s office and the eldest daughter of William Kunstler.
Michael Ratner is president of the Center for Constitutional Rights in New York.
Michael Steven Smith is an attorney in New York and member of the National Lawyers Guild.
Richard Nixon, for whom William Kunstler had no respect, was once asked by a reporter what the secret of his political success was. “Fear,” answered Nixon. “I use fear, and they don’t teach you that in the Boy Scouts.”
Because of the September 11, 2001, attack on the United States by political Islamists, fear is once again afoot in this country, just as it was in the 1950s when Nixon ascended on a chariot of anticommunism. Fear is again afoot as it was after World War I when anti-immigrant prejudice doomed Nicola Sacco and Bartolomeo Vanzetti, and as it was after World War II when anticommunist and anti-Semitic prejudice doomed Julius and Ethel Rosenberg.
This book is William Kunstler’s explication of five key political trials, trials that helped shape U.S. politics and culture for much of the 20th century. Four of the defendants, Sacco and Vanzetti and the Rosenbergs, were executed in electric chairs.
In Alabama v. Patterson, nine young African American men were framed and convicted for rape; they were victims of a ruthless racial prejudice infusing all levels of society. The trial of Engel v. Vitale took on those who fostered prayers to a Christian God in public schools, as issue which is still with us. Its corollary case, the Scopes trial in Tennessee, involved the suppression of the teaching of modern science. The issue of evolution, years later, is still passionately contended.
The evidence that (then trial lawyer) Kunstler deftly and succinctly summarizes does not support the verdicts rendered against the defendants. Although these cases were already historic landmarks when Kunstler set them out, he refrains from placing them in their historical context or from judging the defendants. He lets the trial testimonies speak for themselves. This is Bill’s singular and powerful contribution.
All five of these trials were occasioned and sustained by communities infused with fear and prejudice, and as Roger Baldwin, a founder of the American Civil Liberties Union (ACLU), observed: “…how difficult it is for juries and judges to rise above community fears to deal justly and fairly with unpopular or hated defendants.”
In such a climate, laws that roll back the constitutional guarantees of the Bill of Rights are easily promulgated. We are facing just such a situation today in the wake of the September 11 attacks in the United States. Constitutional rights that most of us felt were sacrosanct no longer protect us; human rights protections guaranteed by international law have been disregarded.
The original title of this book “…And Justice For All” is, of course, ironic. The trials this book examines would not have taken place, much less resulted in convictions, if their instigators, prosecutors, and jurors had held to the standards of the Pledge of Allegiance reprinted at the beginning of this book’s original edition: “I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation, under God, with liberty and justice for all.”
When William Kunstler wrote the book in 1963 he was not yet the most well known, most effective, and to many, the most beloved lawyer in America. When he penned these chapters, Bill had not yet grown into his individual historic role, which would contribute to the making of that history.
In 1963, he was a political liberal, a decorated veteran officer of World War II, and a married man with two children. He had a suburban home and was engaged in the general practice of law with his brother Michael-to whom his book was dedicated-in a small town outside of New York City.
Intellectually accomplished, Bill graduated magna cum laude from Yale, in l942, in French literature. He attained the rank of major, serving in the U.S. Army in the Pacific during the war, and then took a law degree at Columbia University, where he also taught English to undergraduates. Later, when he had become famous and was speaking on college campuses up to three or four times a week, he would flavor his talks with lines of favorite poems.
Apart from Bill’s literary background and analytical legal skills, he was an active participant in the ACLU, which was the main U.S. organization supporting the Bill of Rights, the first 10 amendments to the U.S. Constitution. Indeed, the ACLU’s Roger Baldwin contributed the book’s first introduction.
In 1963, however, Bill had not yet come to the understanding, as he expressed in a 1994 speech to the New York Association of Criminal Defense Lawyers, that the law “…is nothing other than a method of control created by a socioeconomic system determined, at all costs, to perpetuate itself by all and any means necessary, for as long as possible,” or that the U.S. Supreme Court, the highest court in the land, is “…an enemy, a predominately white court representing the power structure.”
He came to this conclusion through his movement lawyering in the 1960s and through his extensive study of U.S. history.
After the terrorist attack on the World Trade Center and the Pentagon, President George W. Bush announced, on national television and to great popular acclaim, a “war against terrorism” of indeterminate length and indefinable boundaries. “You are either with us or against us,” Bush pronounced, assuring a traumatized U.S. public that God would not be neutral in this battle.
Bush saw his personal popularity soar to unprecedented levels. Less than a year before it had taken a five to four vote of the reactionary U.S. Supreme Court to block a recount of the election ballots in Florida, installing Bush in office although he had garnered only a minority of the popular vote. In the 2000 elections, half the eligible voters did not even bother to turn out. Such, as Nixon advised, is the power of fear.
And so, the government has established a wide-ranging series of measures in its claimed effort to eradicate terrorism. Some of the key measures are analyzed further below. We have no doubt that Bill Kunstler would have been in the forefront of those opposed to these recent, draconian violations of law, which include the indefinite and arbitrary detention of battlefield detainees outside the standards of the Geneva Convention; military tribunals to try suspected terrorists; and the possible use of torture to obtain information.
Bill would have led the fight against the massive arrest and interrogation of immigrants; against the passage of legislation granting intelligence and law enforcement agencies much broader powers to intrude into the private lives of U.S. citizens. He would have been especially incensed at recent new initiatives – such as the wiretapping of attorney-client conversations, or the FBI’s new license to spy on domestic religious and political groups, or the undermining of core constitutional protections.
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No book written by Bill today would have omitted a discussion of the serious assault currently taking place in this country against people’s rights, and particularly against the rights of those the state has selected for detention and/or prosecution.
The president’s military order
A. Military commissions
On November 13, 2001, President Bush signed a military order establishing military commissions or tribunals to try suspected terrorists. Under this order, noncitizens accused of aiding international terrorism, from the United States or elsewhere, can be tried before one of these commissions at the discretion of the president. These commissions are not courts-martial, which provide far more protections for the accused.
The divergence from constitutional protections authorized by this executive order is breathtaking. In fact, Attorney General John Ashcroft has explicitly stated that terrorists do not deserve constitutional protections, and by “terrorists,” Ashcroft also includes accused or suspected individuals, not only those proven in any way to have committed terrorist acts. Accordingly, what have been established are essentially “courts” of conviction and not of justice.
Under the provisions of the military order establishing these commissions, the defense secretary is to appoint judges, most likely military officers, who will decide both questions of law and fact. Unlike federal judges who are appointed for life, these officers will have little independence and every reason to decide in favor of the prosecution.
Normal rules of evidence, which provide some assurance of reliability, will not apply. Hearsay and even evidence obtained through torture will apparently be admissible. This is particularly alarming in light of the intimations from U.S. officials that torture of suspects may be an option.
The only appeal from a conviction will be to the president or the defense secretary. Incredibly, the entire process, including execution, can be carried out in secret and the trials can be held anywhere the defense secretary decides. A trial might occur on an aircraft carrier, for example, with no press allowed, and with the body of the executed disposed of at sea.
Although military tribunals were used during and immediately subsequent to World War II, their use since that time does not comply with important international treaties. The International Covenant on Civil and Political Rights as well as the UN Declaration of the Rights and Duties of Man, for example, require that persons be tried before courts previously established in accordance with preexisting laws. These tribunals are clearly not such courts.
In addition, the Third Geneva Convention of 1949 requires that prisoners of war (POWs) be tried under the same procedures that U.S. soldiers would be tried under for similar crimes. U.S. soldiers are tried by courts-martial or civilian courts and never by military tribunal. This, most probably, is one important reason the United States has refused to classify the Guantánamo detainees as POWs; if they were POWs, the government would not be free to use tribunals.
The administration has claimed it will address some of these and other criticisms when regulations have been written. Still, as currently conceived, the president will select the defendants; the defense secretary will appoint the judges; the death penalty remains a sentencing option and no genuine appeal will be permitted.
Trials before military commissions will not be trusted in either the Muslim world or in Europe, where previous terrorism trials have not required the total suspension of the most basic principles of justice. The military commissions will be seen for what they are: “kangaroo courts.”
B. Indefinite detention under military order; and the status of the Guantánamo prisoners
In addition to authorizing military tribunals, the same Nov. 13, 2001, military order requires the defense secretary to detain anyone whom the president has reason to believe is an international terrorist; a member of al Qaeda; or anyone who has harbored such persons. There is no requirement that a detained individual ever be brought to trial. Detention without charges and without court review can potentially last a lifetime.
Subsequent to issuing the military order, U.S. and Northern Alliance forces in Afghanistan captured thousands of prisoners. On or about January 11, 2002, the U.S. military began transporting prisoners captured in Afghanistan to Camp X-Ray at the U.S. Naval Station in Guantánamo Bay, Cuba. As of April 2002, authorities were detaining 300 male prisoners representing over 30 nationalities at the Guantánamo compound, and the number was expected to grow. These prisoners may be indefinitely detained, to be tried by military tribunals at some indefinite point in the future. All of them potentially face the death penalty.
There have been allegations of the ill treatment of some prisoners, in transit and at Guantánamo, including reports that they were shackled, hooded and sedated during the 25-hour flight from Afghanistan; that their beards and heads were forcibly shaved; and that since arrival at Guantánamo they have been housed in small, cage-like cells that fail to protect against the elements.
While such treatment is never acceptable, even more serious is the fact that these prisoners exist in a legal limbo; their identities remain secret; and the charges against them unknown.
It is the official position of the U.S. government that none of these detainees are POWs. Instead, officials have repeatedly described the prisoners as “unlawful combatants.”
This determination was made without the convening of a competent tribunal as required by Article 5 of the Third Geneva Convention, which mandates such a tribunal “should any doubt arise” as to a combatant’s status.
In its most recent statement on the status of the Guantánamo detainees, the U.S. government announced that although it would apply the Geneva Conventions to those prisoners it decided were from the Taliban, it would not extend them to prisoners it believed were members of al Qaeda.
In no case, however, have any of those detained been considered POWs. The United States has repeatedly refused entreaties of the international community to treat all the detainees under the procedures established by the Geneva Conventions.
U.S. treatment of the Guantánamo detainees violates virtually every international human rights norm relating to preventive detention. The United States has denied the detainees access to counsel, consular representatives and family members; it has failed to notify them of the charges they are facing; and has refused to allow for judicial review of the detentions. It has expressed its intent to hold the detainees indefinitely into the future.
FBI arrests and investigations
A. Arrests of noncitizens
The FBI has always done more than chase criminals; like the CIA it has long considered itself the protector of U.S. ideology. In the past, those who have opposed government policies-civil rights workers, anti-Vietnam war protestors, opponents of the covert Reagan-era wars, or cultural dissidents-have repeatedly been subject to surveillance and had their legal activities disrupted by the FBI.
In the immediate aftermath of the September 11 attacks, Attorney General Ashcroft focused FBI efforts on noncitizens, whether permanent residents, students, temporary workers or tourists. Previous to September 11, an alien could only be held for 48 hours prior to the filing of charges. Ashcroft’s new regulation allows arrested aliens to be held, without charges, for a “reasonable time”-presumably months or longer.
The FBI began massive detentions and investigations of individuals suspected of terrorist connections, almost all of them non-U.S. citizens of Middle Eastern descent. Over 1,300 people were arrested. In some cases, they were arrested merely for being from a country such as Pakistan and having expired student visas.
Many were held for weeks and months without access to lawyers and with no knowledge of the charges against them; many are still in detention. None, as yet, have been proven to have a connection with the September 11 attacks; most remain in jail despite any links to terrorism having been cleared. Stories of the mistreatment of such detainees are common.
Some of those arrested are unwilling, apparently, to talk to the FBI, though in return they have been offered shorter jail sentences, jobs, money and new identities. Astonishingly, the FBI and the Justice Department have discussed methods to force them to talk, which include “using drugs or pressure tactics such as those employed by Israeli interrogators.”1 The accurate term to describe these tactics is torture.
As torture is illegal in the United States and under international law, U.S. officials risk lawsuits by using such practices. For this reason, they have suggested using another country to do their dirty work; they want to extradite the suspects to allied countries where security services regularly threaten family members and/or use torture. It would be difficult to imagine a more ominous signal of the repressive period we are facing.
B. Investigations of Middle Eastern men and of dissenters
In late November 2001, Ashcroft announced that the FBI and other law enforcement personnel would interview more than 5,000 men, mostly from the Middle East, who were in the United States on temporary visas. None of these men were suspected of any crime.
The interviews were supposedly voluntary. A number of civil liberties organizations, Muslim and Arab-American groups objected that the investigations amounted to racial profiling and that interviews of immigrants who might be subject to deportation could hardly be called voluntary.
A number of law enforcement officials, including a former head of the FBI, objected as well, saying that such questioning would harm the relationship of police departments with minority communities; that the practice was illegal under some state laws and that it was a clumsy and ineffective way to go about an investigation. A few local police departments refused to cooperate.
Although Ashcroft claimed the questioning was harmless, the questions themselves made this assertion doubtful. Initial questions concerned the noncitizen’s status-if there was even the hint of a technical immigration violation, the person could well find himself in jail and deported.
Information was requested regarding all of the friends and family members of the questioned person; in other words, the FBI wanted complete address books. Once the FBI had such information, it would open files and investigations on each of those named, even though no one was suspected of a crime.
Other questions concerned whether the person interviewed had any sympathy with any of the causes supposedly espoused by the attackers on September 11. Media reports in this country and elsewhere have suggested, for example, that the attackers were acting in the name of Palestinian rights. Whether or not this is the case, many Arab-Americans are sympathetic with the plight of the Palestinians, and would be put in a bind by FBI questioning about this topic.
If the person questioned by the FBI admitted to such sympathy he would immediately become a potential suspect; if he was sympathetic, but denied it, he would be lying to the FBI, which is a federal crime.
The FBI was instructed to make informants of the persons it questioned, and to have them continue to report on and monitor the people they are in contact with. The FBI is also currently investigating political dissident groups it claims are linked to terrorism-among them pacifist groups such as the U.S. chapter of Women in Black, which holds peaceful vigils to protest violence in Israel and the Palestinian Territories.
The FBI has threatened to force members of Women in Black to either talk about their group or go to jail. As one of the group’s members said, “If the FBI cannot or will not distinguish between groups who collude in hatred and terrorism, and peace activists who struggle in the full light of day against all forms of terrorism, we are in serious trouble.”2
The FBI, unfortunately, does not make that distinction. We face not only the roundup of thousands on flimsy suspicions, but also an all-out investigation of dissent in the United States.
C. Renewed FBI spying on religious and political groups
John Ashcroft is considering a plan that would authorize the FBI to spy upon and disrupt political groups.3 This spying and disruption would take place even without evidence that a group was involved in anything illegal. A person or group could become a target solely because of expressing views different from those of the government or taking a position opposing, for example, U.S. foreign policy in the Middle East.
Ashcroft would authorize this by lifting FBI guidelines that were put into place in the 1970s after abuses of the agency were exposed, under a program called Cointelpro, or “Counterintelligence Program,” which existed to “misdirect, discredit, disrupt and otherwise neutralize” specific individuals and groups.
Probably the most notorious goal of Cointelpro was the FBI’s effort to prevent the rise of what it called a “Black Messiah,” which included for example, spying upon and disrupting the activities of Dr. Martin Luther King. It is still unknown whether this proposed new version of Cointelpro has been adopted.
Attorney-client communications
At the heart of the effective assistance of counsel is the right of a criminal defendant to a lawyer with whom he or she can communicate, candidly and freely, without fear that the government will overhear confidential communications. This right is fundamental to the adversarial system of justice in the United States, flawed as it is, as Kunstler came to believe.
When the government overhears such conversations, a defendant’s right to a defense is compromised. With the stroke of a pen, Attorney General Ashcroft has now eliminated the attorney-client privilege and will wiretap privileged communications when he thinks there is “reasonable suspicion to believe” that a detainee “may use communications with attorneys or their agents to further facilitate an act or acts of violence or terrorism.”4
Ashcroft has said that approximately 100 suspects and their attorneys may be subject to the order. He claims the legal authority to do so without court order, without the approval and finding by a neutral magistrate that attorney-client communications are facilitating criminal conduct. This is utter lawlessness by our country’s top law enforcement officer and is, without doubt, unconstitutional.
The new anti-terrorist legislation
On October 26, 2001, Congress passed and President Bush signed sweeping new anti-terrorist legislation, the USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), aimed at both aliens and citizens.
The legislation met more opposition than one might expect in these difficult times. Over 120 groups ranging from the right to the left formed a National Coalition to Protect Political Freedom, to oppose the worst aspects of the proposed new law. They succeeded in making minor modifications, but the most troubling provisions remain, and are described below:
A. “Rights” of aliens
Prior to this legislation, antiterrorist laws passed in the wake of the 1996 bombing of the federal building in Oklahoma, had already given the government wide powers to arrest, detain and deport aliens based upon secret evidence-that neither the alien nor his attorney could view or refute.
The new legislation makes it even worse for aliens. First, the law permits “mandatory detention” of aliens certified by the attorney general as “suspected terrorists.” These could include people involved in all types of activity – from bar room brawls to those who have provided humanitarian assistance only to organizations disliked by the United States.
Once certified in this way, an alien could be imprisoned indefinitely with no real opportunity for court challenge. Until now, such “preventive detention” was believed to be categorically unconstitutional.
Second, current law permits deportation of aliens who support terrorist activity; the proposed law would make aliens deportable for almost any association with a “terrorist organization.” Even if this change seems to have a certain surface plausibility, it represents a dangerous erosion of the constitutionally protected rights of association.
“Terrorist organization” is a broad and open-ended term that could, depending on the political climate or the inclinations of the attorney general, include liberation groups such as the Irish Republican Army, the African National Congress, or NGOs that have ever engaged in any violent activity, such as Greenpeace. An alien who gives only medical or humanitarian aid to similar groups, or simply supports their political message in a material way, could also be jailed indefinitely.
B. More powers to the FBI and CIA
A key element in the USA Patriot Act is the wide expansion of wiretapping. In the United States wiretapping is permitted, but generally only when there is probable cause to believe a crime has been committed and a judge has signed a special wiretapping order that specifies limited time periods, the numbers of the telephones wiretapped and the type of conversations that will be overheard.
In 1978, an exception was made to these strict requirements, permitting wiretapping to be carried out to gather intelligence information about foreign governments and foreign “terrorist” organizations.
A secret court was established, the Foreign Intelligence Surveillance Court, that could approve such wiretaps without requiring the government to show evidence of criminal conduct. In doing so, constitutional protections supposedly guarded throughout the investigation of crimes, could be bypassed.
The secret court has been little more than a rubber stamp for wiretapping requests by the spy agencies. It has authorized over 13,000 wiretaps in its 22-year existence, currently about a thousand last year, and apparently has never denied a request for a wiretap.
Under the new law, the same secret court will have the power to authorize wiretaps and secret searches of homes in domestic criminal cases-not just to gather foreign intelligence. The FBI will be able to wiretap individuals or organizations without meeting the stringent requirements of the U.S. Constitution, which requires a court order based upon probable cause that a person is planning or has committed a crime.
The new law authorizes the secret court to permit roving wiretaps of any phones, computers or cell phones that might possibly be used by a suspect. Widespread reading of e-mail will be allowed, even before the recipient opens it. Thousands of conversations will be heard or read that have nothing to do with any suspect or any crime.
The new legislation overflows with many other expansions of investigative and prosecutorial power, including wider use of undercover agents to infiltrate organizations, longer jail sentences, lifetime supervision for some who have served their sentences, more crimes that can receive the death penalty and longer statutes of limitations for prosecuting crimes.
Another provision of the new bill makes it a crime for a person to fail to notify the FBI if he or she has “reasonable grounds to believe” that someone is about to commit a terrorist offense. The language of this provision is so vague that any person, however innocent, with any connection to any other person only remotely suspected of being a terrorist, can be prosecuted.
The new crime of domestic terrorism
The USA Patriot Act creates a number of new crimes. The crime of “domestic terrorism” is one of the most threatening to those who oppose government policies and to dissent in general. Domestic terrorism is loosely defined as acts that are dangerous to human life, violate criminal law and “appear to be intended” to “intimidate or coerce a civilian population” or “influence the policy of a government by intimidation of coercion.”
Under this definition, for example, the 1999 demonstrations in Seattle against globalization and the World Trade Organization could fit within the classification.
What an unnecessary addition to the criminal code! There are already plenty of laws that make such civil disobedience criminal, without labeling protest as “terrorism” and imposing severe prison sentences.
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Overall, the severe curtailment of legal rights, the disregard of established law and the new repressive legislation represent one of the most sweeping assaults on our liberties in the last 50 years. It is unlikely to make us more secure; it is certain to make us less free.
In times of war or national crisis, it is common for governments to reach for draconian law enforcement solutions. It has happened often in the United States and elsewhere. We should learn from historical example. Times of hysteria, war, and instability are not times to rush to enact new laws that curtail our freedoms and grant more authority to the government and its intelligence and law enforcement agencies.
The U.S. Government has conceptualized the war against terrorism as a permanent war, a war without boundaries. Terrorism is frightening to all of us, but it is equally chilling to think that in the name of antiterrorism the U.S. government is willing to permanently suspend constitutional freedoms.
Today, “antiterrorism” has replaced the anticommunism of the l950s and the anti-immigrant scare campaign of the 1920s as the ideology in service to reaction. “Antiterrorism” facilitated the U.S. Government’s ability to increase the “defense” budget by $38 billion. The increase itself represents more money spent on arms than any other country on the planet.
Bad schools, poor or no health care, a devastated environment, huge under and unemployment, all these have taken a back seat in the “war on terrorism.” The government’s refusal to even address such social problems has been necessarily in tandem with the enormous rollback in civil liberties sketched above.
William Kunstler often spoke of the example of the German government between the wars, when at that point of no return, the Weimar Republic turned fascist. We are not alarmist, but our fear of a neofascism taking root in the United States is not ill-grounded or ahistorical.
Long strides in that direction have been taken in the aftermath of the September 11 attacks, and many in the United States buy into the false proposition that their security rests on the giving up of certain democratic rights.
Bill Kunstler, reflecting on the U.S. Government’s crushing of Black Panther activists in the l960s, wrote “…the shadow of the swastika is still only dimly visibly on the walls that loom about our trembling heads. The key to survival, of course, is to be able to hear the booted tread before it stops in front of your own door.”
Truly the worst thing we have to fear, is fear itself, for as the cases outlined in this volume attest-democracy and its guarantees can come unraveled very quickly.
-New York, May 1, 2002
© Copyright 2002, Ocean Press
1 Walter Pincus, “Silence of 4 Terror Probe Suspects Poses Dilemma,” Washington Post (October 21, 2001), A6.
2 Report by Ronnie Gilbert, FBI Investigation of Women in Black, October 4, 2001, at http://www.labournet.net/world/0110/ wmnblk1.html.
3 David Johnston and Don Van Natta Jr., “Ashcroft Seeking to Free F.B.I. to Spy on Groups,” New York Times (Dec. 1, 2001), A1.
4 National Security; Prevention of Terrorist Acts of Violence, 28 CFR Parts 500 and 501.
