Bush is Abusing Laws, Principles in Climate of Secrecy

June 28, 2004 by Dorothy M. Ehrlich, The Daily Journal

America stands at a crossroads today, as we wrestle with fundamental questions about individual liberty in an age of terrorism.

So when Fred Korematsu stands up before an expected crowd of some 1,500 ACLU members at the organization's national conference in San Francisco on July 6, there will be a palpable sense that he has been here before.

In 1941, Korematsu sought to turn the tide of history when he refused to obey the government's wartime internment order for Japanese Americans. With his lawyers from the ACLU of Northern California, Korematsu brought his challenge all the way to the U.S. Supreme Court. Although he lost the case, he was vindicated decades later, when the federal District Court vacated his conviction.

Korematsu sees parallels between that period and the nearly three years since Sept. 11, 2001. "There are Arab-Americans going through today what we went through then, and we can't let that happen again," he says. But Korematsu also sees an important difference: He was able to challenge his detention order - a basic right that has been denied many prisoners in the "war on terrorism."

Three months ago, Korematsu stood up for the rights of these wartime detainees, filing an amicus brief in the U.S. Supreme Court on behalf of the 600 people from 44 different countries who are being held at Guantanamo Bay, Cuba, and another on behalf of Jose Padilla and Yassir Hamidi, the two U.S. citizens designated as "enemy combatants" by President Bush.

These detainees have been held without access to counsel, deprived of due process, and subjected to treatment that flouts the U.S. Constitution, the Geneva Conventions, and the United Nations Declaration of Human Rights.

In times of trouble, "Fred Korematsus" sometimes surface - rare individuals who refuse to go with the flow, often at great personal risk. At our national conference, participants will hear from a distinguished cast of today's whistleblowers, dissenters and activists, including Richard A. Clarke, former counterterrorism czar for the Clinton and Bush administrations, whose tell-all book details the Bush administration's steps - and missteps - following Sept. 11; Coleen Rowley, Time Magazine's Woman of the Year, whose 13-page memo exposed systemic failures within the FBI; former gubernatorial candidate Arianna Huffington; former presidential hopeful Howard Dean; former U.S. Senator and Sept. 11 Commission member Bob Kerrey; and veteran investigative reporter Seymour Hersh, whose reporting in the New Yorker blew open the story about government abuses in the Abu Ghraib prison in Iraq. They also will view Michael Moore's latest film, "Farenheit 9/11", a searing indictment of the George W. Bush presidency.

These individuals will talk about their efforts to expose dishonesty, bureaucratic blunders, and erosions of liberty since Sept. 11. And there is much to expose: the government has operated under a nearly impenetrable veil of secrecy that, all too often, obscures troubling truths.

For example, months before Hersh shone a light on the abuse of Iraqi prisoners, the ACLU filed a Freedom of Information Act request for documents relating to the abuse and torture of prisoners. Stonewalling, the Defense Department noted that the documents we sought were not "breaking news" and that the department's failure to expedite the request would not "endanger the life or safety of any individuals."

The hundreds of Muslim, South Asian and Arab men rounded up in the months immediately following Sept. 11 also were held in secret, with the government refusing to release basic information, including their names and the charges on which they were being held. Months later, the Justice Department's own inspector general revealed that many prisoners with no ties to terrorism languished behind bars in unduly harsh conditions, some without being notified of charges against them for more than a month. Of 760 held, none was charged as a terrorist.

The government also obstructed efforts to uncover information about the implementation of its landmark legislation, the USA Patriot Act. In response to an FOIA request by the ACLU, the government said it could not produce information before June 2005 - until a court order forced the release of the documents this month.

The documents confirmed that Section 215, the hotly contested section of the act which allows the FBI to obtain library records and other personal information without probable cause, can be used to obtain physical items, such as your apartment key or, as previously acknowledged by Attorney General John Ashcroft, your computer files or even genetic information.

Contrary to the attorney general's claims, the documents show that Section 215 is being used. The ACLU has forwarded them to the U.S. District Court for the Eastern District of Michigan, which currently is considering the ACLU's constitutional challenge to the act. The government had previously filed papers asking the court to dismiss the changes as "unripe," claiming that the FBI had never applied for a Section 215 order.

An internal FBI memo among the documents confirms that Section 215 can be used to obtain information about innocent people - a fact often asserted by the ACLU and vociferously denied by government officials. Justice Department spokesperson Mark Corallo told the New York Journal News on April 13, 2003 that the act "doesn't apply to the average American ... It's only for people who are spying or are members of a terrorist organization."

In her statements before the Senate Judiciary Committee, FBI whistleblower Rowley noted that, in times of crisis, "the trick is to be as surgical as possible in identifying the criminal and those dangerous to our country's security without needlessly interfering with everyone else's rights." This can work, she asserts, if there is a relationship of trust between the public and law enforcement.

Yet the Bush administration has behaved in a way that is inimical to public trust. It has steadfastly eroded liberties, operated in deep secrecy, and gravely misled the public.

Our modern-day Korematsus are crucial antidotes to this climate of secrets and lies. These few individuals have emboldened others. More than 330 communities now have passed resolutions opposing the USA Patriot Act, and 20 U.S Senators are co-sponsoring the SAFE Act, which would bring the act back into line with the Constitution.

As America stands at a crossroads, the voices that urge us to take a different path may take inspiration from Richard Clarke, perhaps the most explosive whistleblower of all. He notes that while we must defend our country, "We must also defend the Constitution against those who would use the terrorist threat to assault the liberties the Constitution enshrines. Those liberties are under assault, and if there is another major terrorist attack in this country there will be further assaults on our rights and civil liberties. Thus, it is essential that we prevent further attacks and that we protect the Constitution - against all enemies."

This July at the ACLU national membership conference, a thousand participants, including hundreds of youth, will take a crash course in doing just that.

Dorothy M. Ehrlich is executive director of the ACLU of Northern California.