US Government Tactics Used to Conduct the War on Terror are Unconstitutional and Violate International Laws
Actions
taken by the US government to fight global terrorism since 11 September 2001
have violated numerous Constitutional amendments as well as international laws,
including the Fourth Geneva Convention of 1949. Increased search and surveillance scope for US law enforcement
agencies has violated the citizens’ fourth amendment reasonable expectation of
privacy granted by Katz v. U.S.(1967). The 5th amendment due process
rights of citizens (such as José Padilla and John Walker Lindh) have been
violated as both were (or are) held in military facilities without access to
lawyers. In addition, the president has
authorized extrajudicial “military tribunals” which enable the US government to
try American citizens and non-citizens under a separate code of laws outside of
the constitutionally guaranteed judicial process. The 1st amendment freedom of speech guarantees have
been curtailed by the PATRIOT Act, specifically Amendment 802, which broadly
defines domestic terrorism as any action that (advertently or not) endangers
human life, ranging from civil disobedience to verbal incitement to even
conceivably creating conditions that would cause traffic to crash and harm or
kill someone. And detainees being held in Guantanamo Bay, Cuba as “unlawful
combatants” constitute for the United States government a breach of the
internationally recognized Geneva Conventions.
Many of these abuses have resulted from the passage of the PATRIOT Act,
a piece of legislation that has expanded the reach of US law and intelligence
organizations and lowered the bar for reasonable suspicion and probable cause. All of this has amounted to the
consolidation of government power in a few hands, namely Bush, Rumsfeld, and
Ashcroft, all of whom are taking over tasks traditionally under the authority
of the judicial and legislative branches of government.
The first amendment has also taken a
relative beating from the PATRIOT Act, notably through Section 802, which
reads:
the term `domestic terrorism' means activities that--
`(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State (USA Patriot Act, Sec. 802)
This definition is so broad that it can be extended to almost anything, intentional or accidental, minor or grave. Again, the underlying problem is a lack of balancing provisions to prevent abuse by law enforcement. Another such provision in the PATRIOT Act setting limits on freedom of speech is Section 411, which reads:
a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities (USA Patriot Act, Sec. 411)
The main problem with this clause is that it prevents people from freely expressing their political views, or in some cases even preventing them from engaging in social or charitable work. Because the provision will consider a terrorist organization any organization in which a part of it engages in terror, citizens could conceivably be arrested or deported under this law without knowing that they are part of a “terrorist organization”. Islamic charities are multifaceted and often have multiple differing sects. For example, Hamas, a Palestinian organization that provides free education, free healthcare, and free food to all Palestinians, also engages in suicide bombing. Under Section 411, a doctor working within a Hamas medical facility would be considered a terrorist for aiding and abetting Hamas, which is clearly a terrorist organization but also the most important social and charitable organization within the Palestinian territories and really the only viable one. These problems could be prevented by distinguishing terrorist action from charitable work, but alas we find ourselves again without any checks to prevent abuses under the guise of this law.
One of the most serious concerns about the PATRIOT Act is Section 215, which allows government officials to look into library records to see what books private citizens are reading. The relevant section reads:
The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. (USA Patriot Act, Section 215)
Before this ruling took effect, the government was forced to show probable cause in order to gain a warrant for such searches. Now, all they have to do is claim they are investigating terrorism and the judge is required by law to issue a warrant, even though the government does not have to provide a single bit of evidence pertaining to the case. In fact, the suspect does not have to be a terrorist. The government can search anyone’s records as long as they claim that it is connected to an investigation into terrorism (Lithwik 1).
As a global leader, the United States have the duty to apply their constitutional guidelines in areas outside of the United States that are under control of American military forces, notably Iraq and Afghanistan. In both of these countries, there have been numerous documentations of violations of international Geneva Conventions, as well as a policy of preventing Red Cross delegates from having access to prisoners in these countries. Recent information has come to light about the Red Cross investigations into Iraqi prison conditions:
Army officials in Iraq responded late last year to a Red Cross report of abuses at Abu Ghraib prison by trying to curtail the international agency's spot inspections of the prison, according to a senior U.S. Army officer who served in Iraq. (Jehl 1)
In the recent prison scandal, it has come out that prisoners held for suspected offenses or on nearly no suspicion at all were tortured and subjected to other methods of interrogation deemed illegal by the Geneva Conventions. Although Bush has roundly condemned these interrogation tactics now that they have received worldwide media exposure, Rumsfeld (and conceivably Bush; it is possible that Rumsfeld did not tell him and that would suggest that there are communication and command problems within the Bush cabinet’s organizational structure) knew about these tactics since he received a confidential Red Cross report 10 months ago that documented abuses in prisons in Iraq and Afghanistan and were based on interviews with former detainees in US custody. Allegations that Rumsfeld may have even been directly responsible for some cases of torture surfaced in a 15 May article by Seymour Hersh that stated:
“the Pentagon’s operation, known inside the intelligence community by several code words, including Copper Green, encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence about the growing insurgency in Iraq.” (Hersh 1)
Hersh goes on to say that in attempts to wrest control from the CIA of the intelligence acquisition operations in Iraq, Rumsfeld created secret Pentagon programs with the authority of the executive branch. Because of these programs, the command structure in Iraqi prisons was convoluted to the point that Major General Taguba reported that the transfer of authority was not doctrinally sound. Here Hersh documents Rumsfeld’s response:
“Rumsfeld reacted in his usual direct fashion: he authorized the establishment of a highly secret program that was given blanket advance approval to kill or capture and, if possible, interrogate “high value” targets in the Bush Administration’s war on terror.” (Hersh 1)
It is important that the Red Cross be allowed to have free access to the prisons since they are a neutral party and serve as a check to abuse in prisons, which has gone unmonitored for over 2 years in the War on Terror. One of the primary problems in determining guilt in the prison scandal is the fact that nobody knows who was in charge or giving orders. According to army generals, they were forced to relinquish authority of certain prisoners within their own prisons to CIA officials, private interrogation contractors, and other non-military US government personnel. General Sanchez, leader of US armed forces in Iraq, handed over authority of Abu Ghraib to Brigadier General Janis Karpinski, commander of the 800th military police brigade. Major General Taguba, while conducting an investigation into the abuses, said this handover of authority was not proper and could have contributed to the confusion in command structure:
Senator Carl Levin of Michigan, the panel's ranking Democrat, asked General Sanchez whether he differed with Maj. Gen. Antonio M. Taguba, who concluded in a report on prison abuses that to give control over prisoners' living conditions to military intelligence — the same unit that would oversee interrogations — was "not doctrinally sound."
"Yes, sir," General Sanchez said, he disagreed. (Knowlton 2)
In a 9 May article of the New Yorker, Hersh commented on the organizational structure of the Iraqi prison systems:
“The blurring of identities and organizations meant that it was impossible for the prisoners, or, significantly, the military policemen on duty, to know who was doing what to whom, and who had the authority to give orders. Civilian employees at the prison were not bound by the Uniform Code of Military Justice, but they were bound by civilian law—though it is unclear whether American or Iraqi law would apply.” (Hersh 2)
The problems that have come to light as a result of the prison scandal exposure are significant. The US military has been found in violation of numerous codes of the Geneva Conventions relating to prisoner treatment and legal methods of interrogation. In addition, many former detainees of Abu Ghraib and other prisons across Iraq and Afghanistan have begun to demand monetary compensation for their suffering. Many prisoners had their cash and property confiscated when they were arrested, and others left behind wives and children who had no way to support themselves after the sole supporter was arrested. A method of redress of grievances of these sorts must be developed in accordance to the Geneva Conventions. Other tactics employed by the United States military in Iraq cast shame on the American Constitution. Arbitrary searches for automatic weapons take place in every house in some towns, with the soldiers often breaking down doors and smashing property in the house while looking for weapons and bomb materials. An October 2003 article in the British publication the Independent exposed some of these tactics:
US soldiers driving bulldozers, with jazz blaring from loudspeakers, have uprooted ancient groves of date palms as well as orange and lemon trees in central Iraq as part of a new policy of collective punishment of farmers who do not give information about guerrillas attacking US troops. (Cockburn 1)
Collective punishment of this nature violates the Geneva Conventions and is an abhorrent practice that the US should not succumb to. These same tactics give Israel the status of a global scapegoat, and if the US pursue them, we will only isolate ourselves from Iraqi civilians and from the global community at large.
Another poor example that the US are setting in the course of the occupation of Iraq is curtailing free press and banning some publications deemed to be “anti-American”. Most prominent of these was renegade cleric Moqtada al-Sadr’s newspaper, al-Hawza:
The US blames Al-Hawza for inciting violence; the paper's supporters say the ban attacks freedom of expression…Al-Hawza's editor, Ali Yasseri, told Reuters the US soldiers padlocked the office and threatened to arrest those who did not leave the premises. (BBC UK, 29 March 2004)
In Iraq, where the United States are attempting to establish permanent institutions of democracy, setting limits on free press is not the most effective way to start that project. Rather, Iraqis should be exposed to all points of view (all colors of “truth”, fiery Moqtada’s al-Hawza as well as official coalition propaganda publications) and left to decide for themselves who is telling the real story and who is credible.
In a world where electronic intrusions are made simple by new surveillance technologies both physical and digital, the importance of putting checks on laws that could possibly be abused is multiplied in magnitude. The PATRIOT Act gives lawmakers and intelligence agencies new useful tools to employ in the War on Terror, but it does not set boundaries that would prevent their abuse. Citizens of the United States and of the world should be aware of what spy technology their government has and what laws govern their use, especially in relation to accessing private personal and financial information stored digitally.
Works Cited
Katz
v. U.S.
389 U.S. 347 (1967)
Zadvydas v. Davis 99—7791 (2001)
“José Padilla.” Wikipedia. 24 April 2004.
Wikipedia. 19 May 2004.
http://en.wikipedia.org/wiki/Jose_Padilla
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http://www.fas.org/irp/offdocs/eo/mo-111301.htm
“The State of Civil Liberties: One Year Later.” The Center for Constitutional Rights.
20 May 2004. CCR.
http://www.ccr-ny.org/v2/reports/docs/Civil_Liberities.pdf
“The USA Patriot Act.” Electronic Privacy Information Center. 24 October 2001.
EPIC. 19 May 2004.
http://www.epic.org/privacy/terrorism/hr3162.html
Hersh, Seymour. “Annals of National Security: The Gray Zone.” The New Yorker.
15 May 2004.
http://www.newyorker.com/fact/content/?040524fa_fact
Hersh, Seymour. “Annals of National Security: Chain of Command.” The New Yorker.
09 May 2004.
http://www.newyorker.com/fact/content/?040517fa_fact2
Knowlton, Brian. “2 Generals Deny Issuing Orders to Allow Prison Abuse in Iraq.” The New York Times. 19 May 2004.
http://www.nytimes.com/2004/05/19/international/middleeast/19CND-ABUS.html
Jehl, Douglas. “Army tried to limit Abu Ghraib access.” International Herald Tribune.
20 May 2004.
http://www.iht.com/articles/520713.html
Cockburn, Patrick. “US soldiers bulldoze farmers’ crops.” The Independent.
12 October 2003.
http://news.independent.co.uk/world/middle_east/story.jsp?story=452375
“Iraqi outcry as US bans newspaper.” British Broadcasting Corporation.
29 March 2004.