The Impact on Civil Rights in the United States of the September 11 Attacks

A Working Paper Prepared by Human Rights First for the International Conference on Terrorism and Human Rights, Cairo, January 26 – 28, 2002

There is no doubt that the unprecedented attacks on New York and Washington D.C. on September 11, 2001 have had a profound impact on domestic policy in the United States. Its full impact is still emerging and will not be clear for several years. One important observation to make at the outset is that even in the face of a devastating attack on the United States, government proposals to curtail rights have been met with argument and opposition, from both inside and outside the government, that have in many instances lessened the negative content of such measures when implemented. Pluralism, dissent, public accountability and the checks and balances built into the system of government, remain strong in the United States, despite statements by some public figures that may have given cause to question this.

Responding to the new feelings of public insecurity engendered by the first war-like attacks on the continental United States since the Spanish- American war of 1898, it is unsurprising that the government has taken measures designed to bolster national security. What is disappointing, at least from the perspective of a human rights organization, is the narrow conception of security apparent in the measures adopted, and in too much of the public debate about the appropriate response to the attacks. In this debate, some have been alarmingly eager to sacrifice basic freedoms in the name of national security. But there is no simple equation whereby a diminution in rights and freedoms leads inevitably to greater security. In fact, less accountability and less transparency, more executive privilege and less judicial and congressional oversight, creates the risk that public security will be endangered by poor government.

The sobering lesson for human rights activists is that even in a highly developed industrialized country, like the United States, with a deeply embedded tradition of constitutional rights protection, the impulse to impose draconian measures is strong when security concerns come to the fore.

Deprivations of the Rights of U.S. Citizens

One of the reasons for the strong support for more stringent security measures among many in the United States is that these measures have been disproportionately directed at non-citizens. But the impact on the civil rights of U.S. citizens of measures included in the USA Patriot Act and other legislative and administrative acts have been significant.

For example, the FBI has been granted greatly increased powers to monitor telephone and e-mail communications. Similar powers are being sought by many states, raising the possibility that loosely regulated state police will have greatly increased powers to conduct surveillance into the lawful, private affairs of U.S. citizens in the name of combating terrorism. Such investigations would be much more wide-ranging, and much more likely to be inappropriately invasive, if they were to be extended beyond the federal (national) to the state (local) level.

In a development that has prompted strong opposition from the legal community, on October 31, 2001, the Justice Department issued an interim rule permitting the Bureau of Prisons to monitor communication between lawyers and their imprisoned clients. The new provision empowers the Bureau to monitor previously confidential verbal or written exchanges between lawyers and their clients, who may be held in any form of detention. Those allowed to be monitored include individuals who have not been convicted of any offence, on certification by the Attorney General “that reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism.” Such certification will last for up to one year, and is not subject to judicial review.

Under pre-existing law, federal authorities can seek appropriate remedies under the well-established "crime-fraud" exception to attorney-client privilege. In a closed door hearing before a federal judge, and in the absence of the offending attorney, the court can take immediate and effective actions, including ordering the monitoring of communications if necessary. Other options include removing the attorney from the case and prosecutors are always free to initiate criminal proceedings against attorneys where appropriate. These procedures ensure judicial review in the narrow band of cases where an attorney is abusing the attorney-client privilege, protect legitimate attorney-client communications, and ensure that authorities have the power to investigate and prevent criminal activity without obstruction.

The new rules undermine the principle of attorney-client privilege, an essential part of the right to effective legal representation, protected by the Sixth Amendment of the US Constitution as well as international law. The rules will impinge on legitimate attorney-client communications. Legal organizations, including the American Bar Association, have called for them to be rescinded.

The new focus on the need to tighten national security against the threat of terrorism, and the increased attention given by human and civil rights groups to responding to the raft of proposed new measures, has meant that the perennial problems of racial discrimination and poverty in the United States have been pushed down the priority list. Nevertheless, such problems remain, and they will only be exacerbated by an economic recession.

The Impact on Non-U.S. Citizens

Perhaps the most disturbing elements within the USA Patriot Act are those which greatly expand the government’s powers to detain non-citizens with minimal judicial review or respect for due-process safeguards. A feature of the Act are the new discretionary powers granted to the Attorney General to order detentions or instigate surveillance measures against those deemed to be threats to national security. Such powers have weakened judicial oversight, although it is important to note that much will depend on how these powers are exercised in practice, and on the procedures that will govern their implementation. Of key concern will be the Attorney General’s standard or evidentiary threshold to be used for certifying an individual as a threat to national security. There are disturbing indications that the Attorney General will rely heavily on secret evidence in making such determinations, which will be impossible for detainees or their legal representatives to challenge in any review procedure.

The original version of the bill, proposed by the Attorney General on September 19, 2001 would have granted him virtually unchecked authority to detain indefinitely any non-citizen he certified as a threat to national security. No time limit was proposed, and the draft legislation explicitly stated that the substantive basis for certification could not be reviewed by any court.

As a result of campaigning by U.S. civil and human rights groups, and the concern of parts of the media and some members of Congress, important human rights safeguards were incorporated in the Act signed into law on October 26, 2001. These include:

• After seven days of detention, the Attorney General must charge a detainee with a crime, initiate immigration procedures for deportation, or release the individual.
  
• The Attorney General’s certification of an individual as a suspected terrorist must be reviewed by a federal court every six months and either renewed or revoked.
  
• Individuals who have been ordered deported but are still in detention 90 days after the removal order, and who the government is unlikely to be able to deport in the foreseeable future, may be kept in jail for additional six month periods only if the government can demonstrate to a federal court that their release would endanger national security or the safety of the community.
  
• The substantive basis for the Attorney General’s certification is subject to judicial review. Such review may be sought at any federal district court nationwide. (Earlier versions of the bill limited review to the federal district court in Washington D.C., which would have made it extremely difficult for many non-citizens to challenge their detention.)
  

While these safeguards are important, they do not provide adequate safeguards against arbitrary detention. The seven-day limit on detention without charge, while much better than no limit at all, is longer than the standard required in international law. For example, in its General Comment on Article 9 of the International Covenant on Civil and Political Rights, the Human Rights Committee has stated that the period of custody before an individual is brought before a judge or other officer may not exceed a “few days.” After the seven day period, the risk of indefinite detention remains for those ordered deported, but who in practice cannot be deported – such as those who face a credible threat of torture in their countries of origin.

In what is likely to be a significant number of cases, the new law will result in long-term detention of non-citizens who have never been charged with a crime but who have violated their immigration status in some way. It is likely those who do not have valid travel documents, or whose countries will not take them back will be subject to long-term detention if certified as a threat to national security by the Attorney General.

The law provides no guidance on what process the Attorney General must follow in making and reviewing a decision to certify someone as a suspected terrorist. Nor does it provide guidance to the courts on what evidence they should consider in assessing the reasonableness of the Attorney General’s decision, whether detainees will have access to the evidence on which such decisions are based and the standards for review of such evidence. One danger is that U.S. authorities may rely on lists of suspected terrorists supplied by other governments. Non-violent government critics and political opponents may be included in such lists.

The draconian new powers to detain non-citizens were not adopted with a sunset provision, as were other parts of the act, so they are now a permanent feature of U.S. law.

The government has used its powers to detain non-citizens, often using mechanisms available to it under immigration law, prior to the adoption of the new counter-terror legislation. In the weeks and months after September 11 more than 1100 people, mostly Arab and Muslim men, were detained. These detentions were carried out in considerable secrecy, with the authorities refusing to disclose the identities and the places of detention of those detained. There were reports of detainees suffering delays in obtaining legal counsel. For example, Human Rights First learned in November of detainees held in a special unit of a detention center in Brooklyn, New York being told that they could only make one telephone call a week to find legal counsel. This problem was particularly acute for immigration detainees who, unlike those charged with crimes, were not entitled to free government-funded legal representation. There were also reports of verbal and physical mistreatment, and of harsh conditions of imprisonment. Information about the legal basis for the detentions seeped out slowly. More than half of the detainees were held on routine immigration violations, such as overstaying a visa, which appeared to have no link to the attacks. A smaller group were detained on federal criminal charges for such offenses as theft or credit card fraud, which again appeared unrelated to the attacks. Other detainees were held as material witnesses, people deemed to have information valuable to the investigation who were thought likely to abscond, if released.

One major problem with these detentions was the authorities’ unwillingness to release information about them. The authorities justified its secrecy by citing the need to withhold information that might be helpful to the enemy, and its concern for the privacy of the detainees. These arguments, although valid in some instances, did not allay concerns that a great many of the detainees were being held on the basis of their religion and ethnicity, rather than as a result of their connection to any terrorist conspiracy. Even though most of the detentions may have had a technical legal basis, individuals of a different ethnic or religious background would not have been taken into detention for the same offense or an equivalent violation of immigration rules. Such discrimination runs counter to guarantees of equal protection under the law in the U.S. Constitution and in international human rights treaties binding on the United States.

In addition to carrying out hundreds of detentions of Arab and Muslim men, the FBI also carried out “voluntary” interviews with thousands of other people in this category. It is highly questionable how voluntary such interrogations were for most people, who could not have been unaware that a failure to cooperate with the FBI may have rendered them objects of suspicion, and therefore liable to detention.

The rights of non-citizens were further eroded by new regulations issued by the Immigration and Naturalization Service (INS) after September 11. Regulations issued on September 20 gave powers to the INS to detain a non-citizen who has committed no crime – and who is not in any way suspected to be a danger to anyone – for an unspecified period of time without even charging the non-citizen with an immigration violation, let alone a crime.

Regulations issued on October 26 allowed INS attorneys to overrule an immigration judge’s decision to release a detainee on bond. The appeals process is extremely slow so non-citizens may remain detained for substantial periods of time without any suspicion of the detainee’s involvement in any crime.

These regulations went beyond the already broad powers of detention in the Patriot Act, and bypassed the legislative branch of government in the Congress. They were an attempt by the INS, a branch of the executive, to seize extraordinary, dangerous powers to detain non-citizens arbitrarily.

Another proposed counter-terrorism measure which also elicited significant opposition was President Bush’s November 13 order authorizing the use of special military commissions to try non-citizens accused of involvement in terrorism. No one has yet been referred to such a commission, and the procedures under which such trials may take place have not yet been announced by the Defense Department. In the process of vigorous public debate, including criticism from within the President’s own party, the administration does appear to be considering adding some fair trial safeguards in proposed regulations (which have not yet been made public). Reports indicate that as of mid-January, the Bush Administration may incorporate the following due process protections into the Defense Department rules that will govern military trials: presumption of innocence, the right to civilian counsel of the defendant’s choice, a requirement of proof beyond a reasonable doubt, unanimous verdicts for capital sentences, and public trials. Despite these positive signals, the Bush Administration has been silent or has sent conflicting signals on three critical issues: jurisdiction of the commissions, availability of habeas corpus, and right to judicial review. To properly satisfy minimal due process requirements under U.S. and international law, the Bush Administration’s final regulations must address the following issues, in addition to the protections mentioned above:

• Jurisdiction of Commissions: Military commissions should not be used for suspects apprehended in or extradited to the United States. They must be limited only to suspects engaged in armed conflict against the U.S. overseas who are being tried for violations of the laws of war.
  
• Habeas Corpus: A detained person must have the ability to challenge the lawfulness of the detention before an independent court.
  
• Judicial Review: A defendant must have the right to appeal to an independent court to determine whether there were significant legal errors in the trial.

When it was first announced, the President’s order left open the possibility that military tribunals may have been employed to try non-citizens detained in the United States. After the December 11 referral of French citizen, Zacarias Moussaoui to trial before a federal court in Virginia on charges of involvement in the September 11 attacks themselves, it now seems unlikely that military tribunals will be used against non-citizens in the United States. The U.S. citizen Taleban fighter, John Walker Lindh, and the British citizen discovered with explosives in his shoes on a U.S. bound flight, Richard Reid, have also been referred to trial before federal courts. It remains to be seen if detainees taken from Afghanistan to a detention facility in Guantanamo Bay, Cuba, and other detainees suspected of connections to Al-Qaeda who may fall into U.S. hands in Afghanistan, or elsewhere, will appear before such tribunals.

Some Positive Measures

While the administration has been forthright in asserting its powers to carry out detentions of non-Americans, and surveillance of anyone, with insufficient regard for constitutional or human rights protections, it has been sensitive to human rights concerns in other areas. For example, the Justice Department quashed rumors that Arab and Muslim detainees would be subjected to torture and other coercive interrogation techniques. The Defense Department has also repeatedly made assurances that detainees under its jurisdiction would be treated humanely and not subjected to torture. Regrettably some commentators openly called for the use of torture against terrorist suspects.

More generally, the Bush administration, and the President himself, has spoken out repeatedly against stereotyping, and the victimization of Arabs and Muslims for the crimes of Al-Qaeda. The President’s commendable emphasis on tolerance, and on the need for Americans of all creeds to stand together in the fight against terrorism, made a contribution to minimizing incidents of hate-crimes against Arabs and Muslim Americans in the aftermath of September 11. These welcome developments indicate the increasing importance of the organized Muslim community in U.S. politics. Nevertheless, the threat from Arab and Muslim terrorism, which has been indelibly ingrained on the American psyche after the September 11 attacks, has created increased tolerance among Americans for targeting of Arabs and Muslims for restrictions of their basic rights. There can be no doubt that in the aftermath of September 11 the biggest losers in terms of rights protection in the United States have been Arab and Muslim non-citizens.

The International Perception

As troubling as the substantive deprivations of basic rights that have taken place is the image that the U.S. government has sent to the world that in the fight against terrorism, it is willing to hold itself above international law. Part of this has been the projection to a global audience of statements and attitudes taken by the Bush administration designed to appeal to a patriotic domestic constituency eager for results in the war against terrorism. Regrettably, around the world, other governments have taken their cue from the administration’s rhetoric, and have taken to characterizing their usual repression of domestic dissent as a necessary part of the war against terrorism. Here in Egypt, the government has stated that the rest of the world is now coming to understand the harsh measures taken against Muslim extremists. In Syria, government officials have sought to explain the Hama massacre of 1982 as justifiable in the context of a war against terrorism. In Russia, the government has found new international support for its pursuit of a brutal war in Chechnya.

Even prior to September 11 the United States, and the Bush administration in particular, were often reluctant to comply with international treaties in human rights and other areas. At the same time, and perhaps sometimes paradoxically, the U.S. government was not reluctant to preach what it did not practice in terms of observance of international human rights standards. States which practiced detention without trial, and threatened to ride roughshod over due process rights were sharply criticized in the State Department’s Annual Country Reports on Human Rights Practices, and elsewhere. The exemplary force of such criticism, such as it was, has been badly dented by some of the statements and actions of the Bush administration after the attacks. Many states will point out that acts of warfare and serious political violence on their soil are not as rare as they have been in the United States, and that maybe the U.S. should now show them a bit more indulgence in the human rights field.

Challenges Facing the International Human Rights Movement Post September 11

This acceptance of the idea that human rights violations are permissible, and even desirable, in certain circumstances is perhaps the biggest challenge facing the international human rights movement as a whole in the aftermath of September 11.

For too long, many governments that have ratified treaties have not made serious efforts to abide by them. Their failure to do so has hampered efforts by human rights advocates to argue for the universality of international human rights standards.

Elements within the international human rights movement are located in the West, where to be in favor of human rights has in the recent past been safe and uncontroversial. There has been a disconnect between the perceptions and experiences of human rights activists based in the West, and those in the South for whom the struggle for human rights is a much more serious, and potentially dangerous, undertaking.

Recent restrictions on human rights in the United States, and elsewhere in the West, in the aftermath of September 11, have served as a reminder that faced with threats to security, the Western world’s commitment to basic human rights safeguards are too quickly compromised. To the extent that the advocacy of Western-based human rights activists has ever sounded like, “why can’t you be more like us,” to an audience in the South, then clearly, it is time for a change. If such advocacy is ever going to make a difference, it should learn from the fallibility within our own systems, which have permitted rights to be curtailed. We should also take heart from the methods of dissent, argumentation and peaceful protest which have averted more serious deprivations of rights. These are tools which can be used in the international struggle for human rights protection.

One positive result of the post September 11 situation in the United States has been a realization by internationally focussed human rights organizations in the United States that there is much for us to do within our own society to address these new challenges to human rights. It is to be hoped that this shift in emphasis in our activities will contribute to greater empathy with human rights activists in countries around the world who habitually face repression from their governments. The sobering realization that our domestic struggle for human rights is not won, should enable us to better imagine ourselves in the circumstances faced on a daily basis over periods of years by activists in this part of the world, and elsewhere.

After September 11, and the setbacks suffered for human rights globally, it is imperative that the international movement should redouble its efforts to develop a coordinated strategy for human rights implementation, taking into account the strengths and limitations of the various component parts of the international human rights movement. The exemplary force of the Western model, which was not working well in this part of the world anyway, should no longer be seen as a viable option for effective human rights promotion. Realization of the limits of Western pressure for promoting human rights change, especially governmental, but also non-governmental, is now more important than ever.

Here are some elements of a rough framework for what a more coordinated cooperative human rights strategy might look like:

• Local groups and local activists must be at the forefront of struggles against repression in their own countries.
  
• Where local circumstances make open advocacy impossible at a local level, Western based rights organizations should defer to local activists in determining appropriate strategies.
  
• Western based groups should focus on creating conditions in which local human rights activists are able to take on such a role by campaigning against restrictions on human rights activism, such as restrictive laws on association and other repressive official policies directed against human rights activists.
  
• In particular, Western-based human rights activists need to be mindful of policies of their own governments which reinforce the actions of governments in the South that routinely violate human rights, and to devise strategies for challenging such policies in their own countries.

If that is a vision of a new division of labor within the international human rights movement, there are also common tasks for all human rights activists, a unified agenda for the international movement. We all need to challenge the damaging simplification that restricting human rights will contribute to national security. The human security approach, advanced by the Canadian government, among others, offers a much more holistic and nuanced understanding of the concept of security. To quote from a Canadian government document:

A human security approach inevitable places raises questions about the place of national security. Fundamentally, these two concepts are complementary. People are made safer by an open, tolerant, responsive state capable of ensuring protection of all its citizens. At the same time, enhancing human security reinforces the state by strengthening its legitimacy and stability. A secure and stable world order is built from the bottom up and the top down.

The drafters of the Universal Declaration wrote in full knowledge of the destructive force of unfettered state power, hence the emphasis on the state’s obligation to uphold the rights of individuals under its jurisdiction and the notion that the individual, endowed with rights, could be a counterweight to state power. The readiness of governments in the West to abrogate elements of their rights traditions that have developed over many years in the face of threats to national security, despite the structural checks and balances built into the system of government in the United States and elsewhere, demonstrates the enduring validity of old axioms that all that is required for evil to triumph is that good men should do nothing, and that the price of freedom is constant vigilance. These are sobering, but invigorating realizations for Western-based human rights activists, which can lead to a stronger global movement for human rights, with a more equitable distribution of power between the West and the South.