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The streets of St. Paul last week showcased an era of repression whose starting point can be identified as September 11th 2001. Hundreds of protesters, bystanders, and journalists outside the Republican National Convention were hauled away to jails under the pretext of “domestic terrorism” and many of them now face felony charges. When the twin towers and the Pentagon were hit by hijacked planes seven years ago, the Bush administration, helped by Congress, furthered the erosion of civil liberties we take for granted in the name of national security. In just seven years, this nation’s laws have changed dramatically to allow warrantless wiretapping, spying on law-abiding Americans and residents, censorship in the press and academia, crackdowns on immigrant communities, and much much more. Additionally, the Military Commissions Act of 2006 lets the president define the terms �torture� and �enemy combatant,� denying basic freedoms and habeas corpus to individuals despite Geneva Convention requirements. On this anniversary of the 9/11 attacks, human rights lawyer and National Lawyers� Guild president Marjorie Cohn speaks with us about what we�ve lost in 7 years.

GUEST: Marjorie Cohn, president of the National Lawyers Guild, a professor at Thomas Jefferson School of Law and the author of “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law”

Rough Transcript

if we look back at what the Bush administration and Congress did right after 9/11. Many of us remember the USA PATRIOT Act, which expired in 2005, but was reauthorized by Congress. I want to focus first on freedoms lost by American citizens and residents before we go to immigrants and then foreigners. Remind us, what freedoms did we loose with the USA PATRIOT Act?

Marjorie Cohn: The Patriot Act significantly lowered the standards for surveillance of telephone and computer communications. It made it much easier for the government to spy on us and for government agencies to share information, even if there was no suspicion of any criminal activity. And it also created a crime of domestic terrorism, which the administration has used in particular to target environmental and animal rights activists. So the Patriot Act was really, I think, one of the earliest and most sweeping laws that really cut back on our freedoms and civil liberties and, as you’ve said, it has been reauthorized with some hesitation, but ultimately yes, it was authorized by Congress.

Sonali Kolhatkar: Now, one of the things that came out of the USA PATRIOT Act as well was these National Security Letters that I understand the ACLU helped strike down that aspect of the USA PATRIOT Act?

Marjorie Cohn: Yes. The National Security Letters allow the government to do surveillance without the normal requirement of the Fourth Amendment to that a search warrant be supported by probable cause. And it gives extreme discretion to the executive branch to single people out and spy on them. And there have been challenges to these national security letters. Yes.

Sonali Kolhatkar: So, one of the things that we most recently remember, especially about wiretapping and spying, are the FISA laws that were recently reauthorized. Did that expand on what the USA PATRIOT Act started and remind us exactly then what we have lost in terms of privacy between September 11th and now.

Marjorie Cohn: Well, just a little bit of background. In reaction to the excesses of J. Edgar Hoover’s FBI COINTELPRO, Counter Intelligence Program, which he used to spy on critics of the administration including targeting Martin Luther King, Jr. in some very intrusive ways, the church committee did an investigation in Congress and as a result of that, the Foreign Intelligence Surveillance Act, or FISA, was passed by Congress and signed by Jimmy Carter in 1978. And the FISA system is a very restrictive system. It is a secret court, judges who are appointed by the Chief Justice meet and they have authorized almost every wiretap order that every president has asked for since 1978. So it is not a permissive system, it is a really quite a repressive system, but that wasn’t repressive enough for George W. Bush. He started, and it turns out it was before 9/11, about six months before 9/11, although he lied and said it was after 9/11, using 9/11 as an excuse. He started his so-called Terrorist Surveillance Program to wiretap the conversations not just of the alleged terrorists, but also of perceived critics of the administration and in fact intercepted calls, domestic calls as well as calls made abroad. And he continued to do that. The New York Times sat on the story for a year and finally, I think it was December of 2005, the New York Times broke the story. There was a lot of hand-wringing and outrage, congressional hearings, and Alberto Gonzales and many others in the Department of Justice were called to testify and yet what happened last term was that Bush once again, and he has done this for the last 7 years, since 9/11, as you said, waving the 9/11 flag, said that we need these amendments to FISA to be able to catch the terrorists. So what Congress did was to basically legalize the illegal program that Bush had been engaged in for all these years. And it is really one of the outrageous things that Congress has done, rolling over in response to this fear mongering by the Bush administration, exploiting the memory of 9/11.

Sonali Kolhatkar: Now, since 9/11, flying has become quite a risky business for Americans citizens and residents. These No Fly Lists that we hear about existed before 9/11. How have they been expanded on and perhaps abused in the last 7 years?

Marjorie Cohn: There are thousands, tens of thousands, hundreds of thousands, some people say a million people on these No Fly Lists. And there have been television shows about it, Senator Ted Kennedy was on a No Fly List and you would think that someone as prominent as Senator Kennedy could easily get off, but it is so difficult to get off of a No Fly List once you are on it that it is nearly impossible. So this is one more way that the Bush administration is targeting not the terrorists, alleged terrorists, but in fact innocent people are being swept up in this as well. There have been other things that the Bush administration has done. They have urged federal agencies to restrict Freedom of Information Act requests; this is a vehicle for citizens to hold the government accountable.

Sonali Kolhatkar: And in fact this was my next questions, which is one of the freedoms we have lost is the access to what our government is up to, and the Bush administration, it seems, has really taken government secrecy to an unprecedented level.

Marjorie Cohn: Absolutely. And this Freedom of Information Act allows citizens to request, receive and publicize public records, and yet there have been orders from the top to federal agencies to resist these Freedom of Information Act requests, even though that violates the law. Another thing that happened shortly after 9/11 is that more than 1,000 men of Arab descent, Arab and Muslim descent, were rounded up and they were incarcerated with no suspicion of any criminal activity. Many of them were beaten and even tortured in custody, especially in Brooklyn New York in the jail there. There is an interesting little story here about what happened shortly after 9/11 in now Attorney General Michael Mukasey’s federal court. He used to be a federal judge. Michael Mukasey of course is Bush’s third Attorney General. The first was John Ashcroft, he gave us the Patriot Act, or he helped give us the Patriot Act; Alberto Gonzales who brought us the torture program; and then Michael Mukasey, who was questioned by the senators and he assured them he would be independent, and of course he has walked in lockstep, indeed goose-stepped to the Bush agenda. And Michael Mukasey was in his federal court on October 2, 2001, when a man named, a Jordanian man, 20 years old, Osama Awadallah, had been physically beaten while he was in custody. This was one of these examples of people who were beaten in custody, Arabs, and he had the marks to prove it, and Mukasey said “as far as the claim he was beaten, I will tell you he looks fine to me” and then Judge Mukasey refused to allow Awadallah to be examined by a doctor and ordered that he be held indefinitely. Of course the marks were under Awadallah’s clothing. And he was one of these more than 1,000 men of Arab descent who were rounded up. Most of them were later exonerated. And this was clear racial profiling, indeed racism at its ugliest.

Sonali Kolhatkar: You have brought us into the part of the interview that deals with immigrants. And indeed I do remember the special registration era after 9/11. Now that has gone certainly further into these incredible workplace raids, the accelerated deportation and the Immigration Department of INS became absorbed under the Department of Homeland Security after 9/11. Marjorie, let’s talk about the REAL ID Act; that sort of legal way in which immigrants have been targeted since 9/11. What did the REAL ID Act do?

Marjorie Cohn: The REAL ID Act, among other things, made it much more difficult for true victims of persecution in other countries to gain political asylum. It allows hearing officers, immigration hearing officers, to make credibility findings just based on, you know, say a woman had been raped in another country and she was terrified and nervous. If she was nervous, then the hearing officer can say she is lying and deny it. So it actually ends up hurting immigrants and also requires identification. It is part of the immigrant bashing that has happened since 9/11. And the immigration issue, which has become a political football in Congress, and much of it, of course, is grounded in nothing more than old-fashioned racism. And the hijackers on 9/11 came in legally. They didn’t cross over the Mexican border. And yet, shows like Lou Dobbs on CNN and other people have really fanned the flames of the anti-immigrant sentiment and the Congress actually did not pass any legislation on immigration. They were unable to agree, but you can believe that when the next Congress starts up, it will rear its ugly head again.

Sonali Kolhatkar: And of course the workplace raids and accelerated deportation have incredibly affected the immigrant communities. That’s a topic we have frequently covered on Uprising and will continue to do so. I want to move, in the last few minutes of our interview, Marjorie, to talk about how the changes in the legal landscape by the Bush administration and Congress after 9/11 have affected foreigners, particularly those swept up in the wars in Iraq and Afghanistan, you know, the torture, the kidnapping, the detention; I think most notably, sort of exemplified in the Military Commissions Act. Can you tell us what rights foreigners have lost under international law because of what the Bush administration has done?

Marjorie Cohn: Foreigners have not lost any rights under international law, because we are still bound by the treaties that we have ratified. They are part of U.S. law under the Supremacy Clause of the Constitution. But that has not stopped the Bush administration from violating the law. There has been, from the very top, an interrogation policy set by Bush officials and lawyers, such as John Yoo, Jay Bybee, David Addington etc., emanating from Cheney’s office, which basically authorized the torture and cruel treatment of prisoners in custody. And this is not isolated instance. This is widespread in U.S. prisons in Iraq, Afghanistan, Guantanamo and the CIA black sites. The Bush administration created the prison at Guantanamo to create a legal black hole where U.S. courts would have no jurisdiction, but the Supreme Court has rejected that argument several times. And most recently struck down the part of the Military Commissions Act that stripped these Guantanamo detainees from the right to habeas corpus, from the right to go in front of a neutral, impartial federal judge and say “I am being held by mistake, please let me go.” And so Guantanamo has become a national disgrace, a symbol of U.S. hypocrisy. I believe both Obama and McCain have called for its closure. I would certainly love to see it closed. My worry is that once it closes, what are they going to do with these men? Are they going to send them to secret CIA black sites where we don’t even know where they are, where they can be tortured with impunity? It’s a real danger. It’s a real worry about what will happen to them and then of course, the military commissions are kangaroo courts that are set up to try the worst of the worst, supposedly, for war crimes and they can even impose the death penalty.

Sonali Kolhatkar: Not to mention that if they do pass a sentence, they can, even after the sentence has been served out, that detainee can still be held indefinitely. Marjorie, finally, what can, whether McCain or Obama get elected as president, can any of these things that we have lost since 9/11, do you see hope for them being overturned, aside from the closing of Gitmo?

Marjorie Cohn: Well, I think that the executive will have a lot of power in terms of how they are going to set the agenda. And I think probably the most striking contrast between the two candidates is who they would appoint to the Supreme Court. John McCain has pledged to appoint judges in the mold of Roberts and Alito to the Supreme Court and Obama has pledged to appoint judges who are not in that mold. And so there will definitely be at least one appointment, probably more, for the next president, and if there is one more judge like Alito and Roberts appointed, then that will tip the balance in favor of these conservatives and we will see things such as Roe v. Wade being overturned, losing abortion rights, civil liberties, when the torture policy is reviewed by the Supreme Court, we will see that reflected in those judges. I’m not making any statement on behalf of anyone other than myself, but I think that we will see, you know, a real difference in the Supreme Court and I think that that will affect people’s lives quite dramatically.

Special thanks to Claudia Greyeyes for transcribing this interview