Seven Points

Seven Points
By Jennifer Van Bergen
t r u t h o u t | Commentary

Sunday, 28 July, 2002

At a recent ACLU-sponsored event, I raised seven points on civil liberties and national security:

1. The USAPA does not enhance security.
2. The designation of terrorists is a political act.
3. We condemn terrorism, yet train our special forces to do exactly the same things.
4. Constitutional rights cannot be traded off.
5. The Cold War mentality of "eye-for-an-eye" precludes cross-cultural exchanges, discussions, and negotiations, as well as democratic processes.
6. We need to insist on solid ethical boundaries in our government's actions and a view that does not see the enemy as a simple antithesis of ourselves.
7. Democratic processes, the rule of law, and the role of courts are essential to a democratic republic.

The USAPA does not enhance security. Our own officials say so. They keep telling us more attacks are not only probable but certain, and they can do nothing to stop them. Thus, they have asked us to sacrifice our liberties for nothing. They admit that the draconian measures they enacted into law - many of which cannot even be seen as legal - are not, in any way, keeping us safe.

Further inspection of the USAPA provides more internal proof that it does not protect us. However, why look further when our own government tells us neither they nor these laws can protect us? And, why should we allow such laws limiting our freedoms to be enacted in the first place when they offer us nothing in exchange for our liberties?

The designation of terrorists is a political act. The USAPA and the previous 1996 antiterrorism act both allow for designation of terrorist organizations. These designations are not based on criminal acts. They are based on membership in a disfavored organization. A national group that fights for its liberation from an oppressive dictatorship may be disfavored by one country and favored by another. When a country decides it does not want to negotiate with a group that fights for the freedom of its people, it may label the group a terrorist organization.

The Nuremberg Charter designated certain groups as criminal (the SS, Brown Shirts, etc.). However, the practice upheld in the Nuremberg trials was that personal knowledge and active participation of criminal acts were required to convict someone of war crimes. Mere membership in a group was not sufficient.

Similarly, the only sound basis for charging someone with terrorism (which is badly enough defined in the USAPA, as it is) is the suspect's active participation in a criminal act, with personal knowledge of the nature of the act.

We condemn terrorism, but we train our special forces to do exactly the same things terrorists do. Sam C. Sarkesian, Professor Emeritus of political science at Loyola University, Chicago, "author of numerous publications on national security, and a retired lieutenant colonel of the U.S. Army," wrote an article in the Spring 2002 issue of Orbis: A Journal of World Affairs in which he endorsed the use of a "culture" of specials forces which are indoctrinated and enabled to carry out "unconventional warfare," which he defines as "following Sun Tzu's notions" of "sabotage, terror, and assassination."

Sarkesian claims that "[v]eterans of the early Special Forces era cherish their hard-won legacy and culture of the 'old' era, a culture many believe must endure if the Special Forces are to be successful in their primary mission of unconventional warfare."

He continues with a description of these men, quoting from Charles Simpson's 1983 book, Inside the Green Berets: The First Thirty Years: "They are a grizzled, likeable, fantastically experienced bunch of tough old bastards who do not apologize to anyone for the wars they have fought and the things they have had to do."

These forces, according to Sarkesian, utilize "the notion that the center of gravity is the political-social milieu of the adversary." In other words, special forces carry out acts that - in the language the USAPA uses to define terrorism - "appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping."

Terrorism by any other name is still terrorism.

Constitutional rights cannot be traded off. According to our founders, these rights are inalienable. We are born with them. They cannot be negotiated away.

Many talk about sacrificing a few civil liberties in exchange for greater security. What rights would we sacrifice to make us safer? Would it make us safer if we had no right to speak up against government abuses? Would it make us safer if we had no right to remain silent when our words could be used against us at trial? Would it make us safer if we had no right to an attorney if we were accused of a crime? Would that many anyone safer? Would it make anyone safer if people could just be jailed without having a chance to tell a judge their side of the story? Would it make us safer if law enforcement could mistake our home for another person's and search it without our even being able to challenge it? Would it make us safer if, without any evidence of crime, we could be accused of terrorism?

The inconveniences of bag searches or airport security checks are not the same as the abrogation of constitutional rights.

The Cold War mentality of "eye-for-an-eye" precludes cross-cultural exchanges, discussions, and negotiations, as well as democratic processes. Cold War reasoning is founded on the "us versus them" philosophy. Our actions need to match theirs, in an eternal battle of one-upmanship that can never be won. There are only three possible results: (1) one of us gives up, (2) we exist in a perennially tense stalemate, (3) war. Cold War mentality does not allow for the acceptance or inclusion of ways of life significantly different from ours.

Furthermore, underneath the Cold War mentality is the corporate, imperial mentality. We must win at all costs. We must not change our ways. The machine of corporate or imperial gain dictates our courses of action. We must gain ground and profit.

These worldviews sacrifice morals in the name of national identity. They foster and excuse the breaking of agreements and the undermining of trust between peoples. They permit encroachment on other people's lands and persons.

We need to insist on solid ethical boundaries in our government's actions and a view that does not see the enemy as a simple antithesis of ourselves. Criminal acts are criminal acts, no matter who does them. Terrorism is terrorism, whether committed by members of Al Qaida or U.S. Special Forces. We can and must judge people by their acts. We must not commit acts which we view as evil in others. We must prosecute wrong-doers on either side of the fence, and continue to look for the causes of Islamic rage, including looking at the nature of our own acts.

Democratic processes, the rule of law, and the role of courts are essential to a democratic republic. There is no United States without these. Indefinite detention , secret evidence, disallowing suspects access to an attorney or a judge, the monitoring of attorney/client communications, and the relaxing of probable cause requirements in investigations - these measures violate the rule of law, the role of courts, and democratic processes.

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Jennifer Van Bergen is a contributing writer for truthout. She has a law degree from Benjamin N. Cardozo School of Law in New York, and is a faculty member of the New School University in New York where she teaches in the writing program.