Silencing Political Dissent: How Post-September 11 Anti-Terrorism Measures Threaten Our Civil Liberties
Nancy Chang
Seven Stories Press/Open Media, 2002

History is filled with examples of governments that have taken advantage of moments of national crisis or insecurity to consolidate their own power. US history in particular gives us the 1917 Espionage Act criminalizing anti-government speech, Executive Order 9066 (1941) allowing the internment of thousands of innocent Japanese Americans, and the FBI’s COINTELPRO program (1956-71) authorizing illegal intelligence-gathering on and subversion of lawful political groups and their members.

Each of these examples of the unconstitutional consolidation of federal power was justified in the name of national security. Silencing Political Dissent affirms that September 11 and the “war on terrorism” have provided a similar pretext for the current Bush administration.

In SPD, Nancy Chang, an attorney at the Center for Constitutional Rights, parses the 342 page USA Patriot Act (passed 10/6/01), as well as a host of executive orders, revised law enforcement guidelines, intelligence programs and in-house directives aimed at preserving “homeland security”. Chang describes these measures, their practical impact and, where applicable, the lawsuits which have been brought to challenge these measures and the implications of the court decisions.

Predictably, surveillance and secrecy are two of the most common themes running through new anti-terrorism measures; the government sees all, while the people see less and less. Under the PATRIOT Act, federal agents may now conduct covert searches, including wiretaps and internet surveillance, without notification or the presentation of a warrant until hours, weeks or even months after the search has occurred.

PATRIOT also widens the reach of the Foreign Intelligence Surveillance Act (FISA). FISA wiretaps and searches do not require the showing of probable cause of criminal conduct and now may be conducted “as long as the gathering of foreign intelligence information can be described as ‘a significant purpose’ of the surveillance.” Even attorney-client communication may no longer be private, thanks to a Bureau of Prisons interim rule “that allows the Department of Justice to monitor privileged communications with inmates and their attorneys without judicial authorization.”

Executive privilege

As individual privacy is eroded, federal “privacy” has received several big boosts. Chang cites a memo from Attorney General Ashcroft (10/12/01) discouraging government agencies from complying with Freedom of Information Act requests. Also cited is an executive order issued by President Bush (11/1/01) overriding the Presidential Records Act of 1978 and granting “the incumbent president...former presidents, vice presidents, and their representatives, the power to veto the release of [presidential] records based on a simple claim of executive privilege.” Both Ashcroft and Bush invoked the national security imperative in defending these measures.

The government’s refusal to release the names of non-citizens detained by the INS after 9/11 is perhaps the most sinister illustration of the thickening wall of government secrecy. The Department of Justice has also made a concerted effort to block the press and public from attending the hearings of detainees. Chang includes a detailed section on how the controversy over secret hearings has been played out in the courts.

Armed with the pretext of a War on Terror, the Bush administration is working hard to make a crime out of anti-government speech and even anti-government thought. Chang wryly quotes George W. Bush “who has vowed to bring to justice not only those who have engaged in terrorist activities but ‘anyone who espouses a philosophy that’s terrorist.’”

Chang warns that the newly minted crime of domestic terrorism is defined vaguely enough to be applicable to political activists engaged in acts of civil disobedience, and that the certification of a non-citizen as a terrorist is at the sole discretion of the attorney general. Soon the enemies who Bush insists “hate our freedoms” will have little left to hate.