The Other War

The Bush administration & the end of civil liberties

Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated.

--President George W. Bush, September 20, 2001

It didn't take President Bush to tell Americans that the world changed on September 11, 2001. But it took Bush, Attorney General John Ashcroft, and an unquestioning Congress to change the legal foundation of what it means to be "free" in America. The president declared from the start that it would take more than military might to wage the fight. This war would require a new arsenal of laws and regulations at home. And he got them. If the September 11 suicide hijackers hated us for our freedoms, as the president also said, today there is less to hate.

The legal firepower behind the war on terror consists of two pieces of legislation, the Antiterrorism and Effective Death Penalty Act of 1996 and the USA Patriot Act of 2001, as well as a host of executive orders and federal agency regulations. Ashcroft, Bush, and numerous federal courts have decreed that freedoms must be curtailed in the name of fighting terror. But that formulation suggests they will be temporary. Given the nature of terrorism, and of politics, that is extremely unlikely.

Bush, after all, has said repeatedly that this is to be a war of many years' duration, a life's work. It will not stop until every terrorist threat the US cares to identify is vanquished. It is a global war without territorial boundaries and without a known cast of enemies, save one--evil. And it's being fought at home, too, in churches and town squares, courtrooms and libraries.

At the center of this new body of terror and homeland security laws lies a vague and amorphous definition of its central term: What is terrorism? Government agencies and departments use varying standards. But the USA Patriot Act defines terrorism as "acts dangerous to human life that are a violation of criminal law" that "appear to be intended to influence the policy of a government by intimidation or coercion." This definition is so broad that practically any act of civil disobedience could be construed to violate the law. (A political demonstration taking place in the path of an ambulance, for example, could be termed "dangerous to human life.")

As many Arab-Americans have discovered, individuals making contributions to Islamic-based charities that turn up with "alleged terrorist ties" may wind up terror suspects themselves. Under the Patriot Act, any organization that engages in legitimate as well as illegitimate activities can be presumed a terrorist organization for all purposes. And the prohibited activity that lands a group on the government's list need not consist of violent acts directed at people; anything that is intended to destabilize a government or "influence" its policy by coercion can be termed terrorism. Flooding a congressional office with e-mails critical of government policies, and jamming a server in the process--is that an act of terror? Some organizations that use the Internet to ask people to e-mail members of Congress fear that it might be so construed.

As well they should. For the war on terror now encompasses a breathtaking range of new government powers here at home. More than ever before, the mere fact of dissent could make you a target in the war on terror.


The 1996 Antiterrorism and Effective Death Penalty Act

To all my fellow Americans ... I say, one thing we owe those who have sacrificed is the duty to purge ourselves of the dark forces which gave rise to this evil. They are forces that threaten our common peace, our freedom, our way of life.

--President Bill Clinton, April 23, 1995, speaking of Oklahoma City.

Most critics of the terror war's assault on civil liberties mark its beginning with the Clinton administration's Antiterrorism and Effective Death Penalty Act of 1996. But the US government's propensity for spying on its own citizens on the professed grounds of national security goes back much further, and it's not just a relic of the Hoover days. As recently as the 1980s, the FBI conducted surveillance of Americans involved in a variety of causes. Activists who supported rebel groups in El Salvador, attended rallies protesting American aid to the Salvadoran military, signed petitions, or possessed reading material associated with the Committee in Solidarity with People of El Salvador (CISPES) were targeted for activities labeled as "terrorist" or "leftist."

These investigations went on for more than two years, until they were finally halted by congressional hearings and the exposure of documents obtained under Freedom of Information Act requests. Congress denounced the scope of the anti-CISPES investigations, and in 1994 enacted a law protecting First Amendment activities from FBI investigations. That law was expressly repealed in the Antiterrorism Act of 1996.

The 1996 Antiterrorism and Effective Death Penalty Act was the Clinton Administration's comprehensive response to both political and personal violent crime. Making the death penalty "effective" meant making it harder to appeal convictions of capital offenses. In terms of fighting terrorism, the law was a reaction to bombings of the World Trade Center in 1993 and the Oklahoma City federal building in 1995. Like the Patriot Act, it too, passed the Senate easily--91-8. (Clinton also cited the suspicious crash of TWA Flight 800 and the bombing at Atlanta's Olympic Village in 1996 as further proof of the dangers.) According to its critics, including Georgetown University Law School Professor David Cole, the law never yielded any significant protection against terrorism--everything a "terrorist" does was already illegal--although it did lead to substantial incursions on constitutional rights, such as:

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