Civil Liberties Violated During War on Terror, Say Glenberg, Wheeler

October 9, 2002
Joshua Wheeler
Adjunct Professor Joshua Wheeler said polls show that Americans are more willing to abridge free speech after Sept. 11.

A cloak of secrecy surrounding the Bush administration's treatment of "enemy combatants" and the expansive powers enacted by the executive branch and Congress to investigate terrorism reveal an increasing suppression of civil liberties in America, according to Rebecca Glenberg, Legal Director of the ACLU of Virginia, and Joshua Wheeler, Associate Director of the Thomas Jefferson Center for the Protection of Free Expression. Furthermore, Americans have become more tolerant of such transgressions made in the name of the war on terror. Glenberg and Wheeler spoke at the Law School Oct. 7 during the National Lawyers Guild event "First Monday 2002: Civil Liberties Post 9/11," purposely held the day the Supreme Court term began.

"It's really undeniable that civil liberties, however you define them, have taken a hit," Wheeler said. "A big reason we're being so tolerant [of civil liberties violations] is because we don't know what's going on."

Glenberg and Wheeler laid out examples of what they called civil liberties violations for the audience to consider: Yasir Hamdi, a U.S. citizen born in Louisiana, raised in Saudi Arabia, and captured in Afghanistan, was moved from Guantanamo Bay after authorities learned of his nationality to a Norfolk, Va., brig, where he has been held incommunicado from attorneys and the public (Jose Padilla, the "dirty bomber," is being held in a similar manner; American Taliban John Walker Lindh was not); in another example provided by Glenberg, several homes in a Muslim community in northern Virginia were raided because of testimony in affidavits that have been sealed-following the raids, no one has been charged with a crime, but several confiscated items have not been returned; the press has claimed that their access during the war on Afghanistan has been more limited than in any previous war; and a number of students have been suspended from public schools because of comments they made after Sept. 11.

Rebecca Glenberg
Rebecca Glenberg, Legal Director of the ACLU of Virginia, outlined the case of Yasir Hamdi, a U.S. citizen captured in Afghanistan.

Glenberg questioned the government's actions, noting that Americans live "increasingly in a surveillance culture" after Sept. 11. The ACLU filed a writ of habeus corpus in order to bring Hamdi to trial, but a series of arguments between Judge Robert Doumar ['53] of the Eastern District Court of Virginia and the Court of Appeals for the Fourth Circuit so far has not given Hamdi a trial or an attorney.

A Department of Justice official had submitted a two-page document justifying Hamdi's imprisonment to Doumar, noting that enemy combatants do not have the rights of a POW, Glenberg said, and can be held until the end of the war. In response to Doumar's question about how we know when the war is over, the official said the country was presently at war but was vague about when it might end.

Glenberg compared the war on terror to other "rhetorical wars" such as the war on poverty and the war on drugs. "When are those over? Probably about the same time the war on terrorism is over," she said.

Doumar ruled that the government did not present sufficient evidence to hold Hamdi without the right to an attorney, but the government appealed the decision. The 4th Circuit Court of Appeals reversed the ruling that he had a right to an attorney but refused to rule on whether the president had the absolute right to decide who was an unlawful combatant with no court review. The 4th Circuit panel sent the case back to the lower court.

The federal public defender for the Eastern District of Virginia cannot show Hamdi the government's document, and thus cannot help him dispute his enemy combatant status. Glenberg said if anyone can be declared an enemy combatant, as Hamdi has been, "the rights of anyone can be taken away." She said the ACLU is now "deciding whether or not Hamdi is an enemy combatant, and if so what does that mean in terms of his civil liberties."

After Sept. 11, Americans have become more tolerant of the suppression of civil liberties, Wheeler said, calling the phrase an abstract concept marked by how willing the majority is to tolerate those with which they disagree or disapprove. As a result, civil liberties are individual rights that are subject to interpretation and evolution, he said. "For most of us, civil liberties is for the other guy," he said. "The majority are typically agreed upon things."

A recent poll taken by the Freedom Forum reveals that Americans are willing to live with fewer freedoms. Almost half said they think the First Amendment "goes too far," Wheeler noted, and 49 percent said Americans have "too much freedom."

"The question that I think ought to be asked … [is ]… Is the hit that civil liberties has taken justified because of the new world we're living in?" Wheeler said. He noted the anger of the international community at the Guantanamo Bay conditions, where the captured Taliban and Afghanis are being held incommunicado and are not given the rights POWs have under Geneva Convention rules. So far about 1,200 have been deported, but the deportation hearings have been sealed from the press and public as well.

While Wheeler acknowledged the nature of the war on terror differed from previous wars, he said "that still doesn't give government the right to make up rules as they go along." He added that while the government thought special wartime situations existed in the past-World War II invoked the internment of Japanese U.S. citizens, communism and the Cold War invoked McCarthyism-today we consider those our darker periods in history.

"The government is not allowing us to have an informed debate about whether these violations are justified or not because they're keeping it secret from us," Wheeler said.

When White House Press Secretary Ari Fleischer says Americans need to watch what they say, or U.S. Attorney General John Ashcroft equates concern over civil liberties with aiding the enemy, it has "this tremendous chilling effect amongst universities and the press," Wheeler said.

The Center Wheeler works for gave one of their 2002 Jefferson Muzzle Awards for censorship to the U.S. Department of Defense and Secretary Donald Rumsfeld for their secrecy in the war on terror in Afghanistan.

In addition to free speech issues, privacy may also be at stake: Section 215 of the Patriot Act allows the FBI to gain access to search library or bookstore records by going through a secret court, and because of a gag order, the librarians can't talk about being searched.

"We don't know how much surveillance is going on domestically," Wheeler said. He added that the government says "trust us" and "does things in secrecy.

"That, to me, is the most frightening aspect of civil liberties since 9/11," he said.

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