“to those who scare peace-loving people with phantoms of lost liberty, my message is this: your...

“To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists—for they erode our national unity and diminish our resolve … ”

-- Former Attorney General John Ashcroft, Statement to U.S. Senate, December 2001

Civil Liberties after 9/11

Fear:CBS/NYT (Pre-9/11): In your opinion, how likely is a major terrorist attack in the United States itself in the near future? Is it very likely, somewhat likely, or not at all likely? CBS/NYT (post-9/11/01), CBS: How likely do you think it is that there will be another terrorist attack on the United States within the next few months: very likely, somewhat likely, not very likely, not at all likely? Not at Not Too All Likely/ Likely/ Don't Very Somewhat Somewhat Very Know/ Likely Likely Unlikely Unlikely N.A. (%) (%) (%) (%) (%)Pre-9/11: 1/91 (CBS/NYT) 23 50 -- 21 6Post-9/11: 9/20-23/01 (CBS/NYT) 36 42 16 4 2 10/25-28/01 (CBS/NYT) 53 35 8 2 2 2/24-26/02 (CBS) 18 44 29 5 4

Giving Up Civil Liberties:

PSRA/PEW: In order to curb terrorism in this country, do you think it will be necessary for the average person to give up some civil liberties, or not? Don't No/Not Know/ Yes/Necessary Necessary N.A.

(%) (%) (%)Pre-9/11: 4/97 (PSRA/PEW) 29 62 9

Post-9/11: 9/13-17/01 (PSRA/PEW) 55 35 10

Giving Up Civil Liberties:

CBS/NYT: In order to reduce the threat of terrorism, would you be willing or not willing to allow government agencies to monitor the telephone calls and e-mail of ordinary Americans on a regular basis? PSRA/PEW: Would you favor or oppose the following measures to curb terrorism: allowing the U.S. government to monitor your personal telephone calls and e-mails.

Approve/ Favor/ Disapprove/ Support/ Oppose/ Don't

Know/ Willing Not Willing N.A. (%) (%) (%)Phone and e-mail: Sept/13-14/01 (CBS/NYT) 39 53 8 Sept /20-23/01 (CBS/NYT) 45 51 4 Dec /7-10/01 (CBS/NYT) 31 65 4Personal phone/e-mail: Sept/13-17/01 (PSRA/PEW) 26 70 4

“To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists—for they erode our national unity and diminish our resolve ….” -- Former Attorney General John Ashcroft, Statement to U.S. Senate, December 2001

The War on Terror: Consequences for Civil Liberties

Responding to 9/11 as “war” rather than a “crime against humanity” had two main effects on domestic policy:

1.Centralization of authority in the executive branch.

2. Restricting civil liberties is the point of many security measures. The Bush administration viewed civil liberties as a weakness in the system that the terrorists will exploit.



Responding to 9/11 as “war” rather than a “crime against humanity”

This vision of 9/11 led to:

(a) greater restrictions on the flow of information about government;

(b) less privacy from government surveillance;(c) fewer due process protections.



Secrecy Rationale: The Mosaic Theory

Developed by the CIA, draws an analogy between building a mosaic and gathering bits of seemingly unimportant information. i.e. bits and pieces of information may seem harmless in isolation, but if the terrorists would put them together, they would obtain a bigger picture of the government’s antiterrorism investigation.


Due Process is… The right to request and receive a hearing where the detainee can make the case for why he should not be

detained.

The right to have the detainee’s home government and family informed of the detainee’s capture and his location.

The right to have one’s treatment monitored by an international humanitarian organization like the Red

Cross.

The right to not be tortured.

The right to not be threatened with torture.


Habeas Corpus is…A process that entitles a person held in custody to file a petition in court

formally requesting the court to summon the accused and his custodian to court where the custodian will be required to show the reason he is detaining the petitioner.

Major Policies and Decisions:

The November 13, 2001, Presidential Military Order gave the President of the United States the power to detain suspects, suspected of connection to terrorists or terrorism as an unlawful combatant.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of United States citizens to seek writs of habeas corpus even when declared enemy combatants.

On June 7, 2007, the Habeas Corpus Restoration Act of 2007 was approved by the Senate Judiciary Committee with an 11-8 vote split along party lines, with all but one Republican voting against it.


The Patriot ActThe United and Strengthening America by

Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

President Bush promised that while the Patriot Act will protect constitutional rights, “this government will enforce this law with all the urgency of a nation at war”.


In Guantanamo Bay … - the jurisdiction of the US courts is excluded;- prisoners to be tried by military tribunals;- no access to the writ of habeas corpus to

determine whether detention was arguably justified

- the military were to act as interrogators, prosecutors, defense counsel, judges, and, were the death sentence imposed, as executioners;

- trials to be held in secret;


Major changes in Guantanamo Bay …-- The U.S. Supreme Court ruled in Hamdan v. Rumsfeld

on June 29, 2006 that they were entitled to the minimal protections listed under Common Article 3 of the Geneva Conventions.

-- On July 7, 2006, the Department of Defense issued an internal memo stating that prisoners would in the future be entitled to protection under Common Article 3.

-- On May 15, 2006, the United States Department of Defense released a list of all 759 former and current inmates who had been held in military custody in the detainment camps after a Freedom of Information Act action was filed by the Associated Press.


http://www.amnestyusa.org/america/FactSheet.pdf

U.S. Citizens as Enemy Combatants

(a)Yaser Esam Hamdi, (born September 26 1980) US citizen, captured in Afghanistan in November 2001.

(b) John Phillip Walker Lindh (born February 9, 1981) US citizen captured as an "enemy combatant" during the United States' 2001 invasion of Afghanistan. Nicknamed “American Taliban.”

(c) José Padilla (born October 18, 1970) US citizen; arrested in Chicago on May 8, 2002; was detained as a material witness until June 9, 2002, when President Bush designated him an illegal enemy combatant

http://www.amnestyusa.org/america/FactSheet.pdf

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