Date: Fri, 21 Sep 2001 00:50:18 -0700 (PDT)
Subject: An article by David Cole


The Nation
October 8, 2001 

http://www.thenation.com/doc.mhtml?i=20011008&s=cole

A Matter of Rights
by David Cole  


Nothing tests our commitment to principle like
terrorism. Before September 11, America banned
assassinations of foreign leaders; now the
Administration is considering abandoning that
prohibition. Before September 11, more than 80 percent
of the American public felt that racial or ethnic
profiling was wrong; today, that consensus is rapidly
eroding, as FBI agents detain dozens of suspects
solely because of their Arab or Muslim identity and
associations. Ten years ago, Congress repealed
McCarran-Walter Act provisions making mere membership
in various political organizations a deportable
offense. Now the Administration seeks authority to
detain and deport aliens accused of virtually any tie
to a terrorist group--defined expansively to include
any group that has or might use weapons. 
   
The September 11 terrorist attack undoubtedly warrants
a comprehensive review of our intelligence and law
enforcement capabilities. But what is needed is
better-coordinated intelligence and more targeted law
enforcement, not broad-brush legislation that simply
throws more power at government agencies that have
already shown a proclivity to abuse the power they
have. 

This country has a long tradition of responding to
fear by stifling dissent, punishing association,
launching widespread political spying and seeking
shortcuts around the Constitution. Few Americans
opposed the imprisonment of antiwar dissenters during
World War I, the internment of Japanese-Americans
during World War II or the anti-Communist laws of the
McCarthy era. We now acknowledge that those
initiatives were wrong, but have we learned from our
mistakes? 

To some extent we have. No one has yet proposed making
membership in a Muslim organization a crime, detaining
all Americans of Arab descent or Muslim faith, or
criminalizing dissent. But in 1996, after the Oklahoma
City bombing, we resurrected guilt by association,
criminalizing any material support to any foreign
group deemed terrorist by the Secretary of State, even
if that support consisted of sending human rights
pamphlets to an organization fighting a civil war. And
now the INS seeks unprecedented authority to lock up
and deport as a "terrorist" any alien remotely
associated with a any group that has ever used
force--even if the alien himself has no connection to
violent acts. 

And all indications are that the FBI continues to
operate as if guilt by association is the rule. While
the September 11 terrorists were training for and
coordinating their conspiracy in Florida, the FBI was
spending vast resources investigating Mazen Al Najjar,
a Palestinian professor from Tampa who spent three and
a half years in detention on secret evidence and
charges of political association. Al Najjar was
released last December when an immigration judge found
no evidence that he posed a threat to national
security. And while the terrorists were conspiring in
New Jersey, the FBI focused its efforts on Hany
Kiareldeen, a Palestinian in Newark detained for a
year and a half on secret evidence for associating
with terrorists. He was freed after immigration judges
flatly rejected the government's charges as unfounded;
the FBI's principal source was apparently Kiareldeen's
ex-wife, with whom he was in a bitter custody dispute
and who had filed several false reports about him. 

The government already has adequate powers to combat
terrorism. It has authority to wiretap any person
suspected of working for a foreign government or
organization, without any criminal predicate
whatsoever. It can prosecute and freeze the assets of
those who provide aid to terrorist organizations. It
can bar entry to members of terrorist organizations,
and it can detain and deport any alien who has engaged
in or supported a terrorist act. 

When, in less turbulent times, a bipartisan National
Commission on Terrorism appointed by Congress
recommended steps to improve our response to
terrorism, it advocated none of the measures now
advanced by Attorney General Ashcroft. Its advice was
to streamline and coordinate existing authority, but
that entails hard work and substantial turf battles;
it's far easier, but far less effective, to give the
FBI still more power to spy on the American people. 


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