On October 26, 2001, while the country was still stunned and in mourning over the Sept. 11 attacks, and while the day-to-day work of Congress was disrupted by the anthrax scare, Congress passed and President George W. Bush signed into law the USA Patriot Act.

Bush and the Republican congressional leadership rammed the Patriot Act through without any public hearings and with only a minimum of discussion. In the end, only one senator and 66 representatives, most of them liberal Democrats, voted against it.

The Patriot Act creates new, extremely vague definitions of terrorism that could be used against organized labor and civil rights and other democratic movements and organizations. It allows the government greatly enhanced surveillance powers, including much easier access to our personal medical, business and library records.

In response, the Act has given rise to a massive public mobilization for its repeal, with over 350 town, city, county and state legislative bodies — including several Republican strongholds — passing resolutions denouncing its attack on our constitutional rights.

For the moment, however, the misnamed Patriot Act is still the law.

Eroding checks and balances

The Patriot Act brusquely pushes aside the judicial review of executive branch actions. For example, federal judges are either stopped from exercising effective review of search warrants, or the function is handed over entirely to the secretive “Foreign Intelligence Surveillance Act” court, which is part of the executive branch and outside the normal system of appeals. Late in 2003, Congress gave the Bush administration permission to write its own search warrants in certain cases, without having to go before a judge at all.

Bush’s curtailment of citizens’ civil liberties will go even further if he wins or steals the election in November. He promises to adopt “Patriot Act II,” which would allow the Justice Department to revoke the citizenship of U.S. citizens without judicial review — even if they and their great-grandparents were born in the United States — should the government not like their political associations. They could then be deported posthaste. This power would represent a huge setback for constitutional rights.

The executive branch, under Bush, has not only shown contempt for the judicial branch, but also for the legislative branch of government. Congress has tried, weakly, to stop some of the worst governmental abuses (even some Republicans are now saying it’s “going too far”), only to find that the Bush administration barreling ahead and doing under executive order whatever it wants to. For example, Congress blocked funding for the sinister “Total Information Awareness System,” but Attorney General John Ashcroft is going ahead with much of the Orwellian data-mining system anyway.

Bush seeks a ‘law-free zone’

The ongoing horror and outrage of the “enemy combatants” cases, as exemplified by hundreds of prisoners at Guantanamo and the cases of U.S. citizens Yasir Esam Hamdi and Jose Padilla, for example, demonstrate the wanton lawlessness of the Bush administration. In such instances, the government, instead of charging the prisoners and providing them with a trial, has claimed the right to simply detain them indefinitely.

Even people who think we should give up some of our civil liberties to prevent terrorism should look beyond the Bush-hype to understand the real goal. For these cases show clearly the administration’s aim of creating “law-free zones,” where the government can do anything it likes to people — secretly incarcerating them, torturing and in some cases murdering them.

Besides inventing a category of illegal “enemy combatant” that does not exist in the law, the Bush administration has created special military tribunals at Guantanamo to try them under rules that flagrantly violate internationally recognized standards of due process.

Even these hearings might never have happened if the Supreme Court had not ruled against the government earlier this summer. In Hamdi v. Rumsfeld and related cases, the Court ruled that Hamdi, as a U.S. citizen, has a right to trial and that the Guantanamo prisoners have a right to a hearing on their status. In spite of the Supreme Court’s decision, however, U.S. military’s evasion of judicial oversight goes on.

Although Bush, Ashcroft and their media friends present the Guantanamo prisoners as terrorists, scrutiny of the individual cases shows that this is sometimes quite untrue. Several Guantanamo prisoners, including several who say they were tortured, have since been returned to their countries of origin, and some have been simply set free for lack of evidence.

Hamdi, after being held for more than two years without trial or charges, is close to being released by the federal government. Hamdi was born in Louisiana in 1980 to Saudi parents and grew up in Saudi Arabia. He was captured in Afghanistan by the Northern Alliance in 2001 and has been detained without charges in Navy brigs in Norfolk and, currently, Charleston, S.C.

Although the Bush administration claimed Hamdi “posed a grave threat to national security,” thereby suspending his rights and holding him without trial, they are now on the eve of letting him go, admitting they never had sufficient evidence to legally hold him.

One has to draw the conclusion that the Bush administration simply hoped to be able to imprison Hamdi indefinitely without ever having to prove his guilt to a court of law.

Racial profiling and harassment

After the Sept. 11 attacks, the government illegally imprisoned at least a thousand Arab Americans and Muslims. Subsequently, the government set up a huge system of “special registration” for people from certain countries, mostly in the Muslim world.

Georgetown law professor David Cole has remarked that out of all the high-profile, headline-grabbing arrest cases, very few — half a dozen or so — are terrorism-related cases. Most of the cases have resulted in deportation or imprisonment for minor immigration-related problems.

These minor immigration infractions could have been cleared up easily with the help of an attorney. Indeed, one suspects a strong element of racial and ethnic prejudice, because had the people involved been British or Canadian by ethnicity and Christian or Jewish by religion, they probably would not have had nearly as hard a time. While not protecting us against terrorism, the government’s actions have certainly terrorized the Muslim community in the United States.

Michigan restaurant owner Ibrahim Parlak, a Turkish citizen of Kurdish origin, was grabbed and imprisoned and is now being processed for deportation. The government accused him of hiding an early association with Kurdish resistance to Turkish rule, nearly 20 years ago. Parlak denies having concealed this information from the government. In fact, he was granted political asylum by the U.S.

Parlak’s neighbors have organized in his support, and this has made the news media, mostly because noted film critic Roger Ebert was a regular at Parlak’s restaurant and has made the issue public. All over the country, there are other, similar cases in which non-citizens are being arrested and deported with little or no protection of their rights or access to lawyers and courts, essentially at the Bush administration’s whim.

“It never crossed my mind that, after all those years, this could happen,” Parlak said. “It doesn’t make any sense to me.”

“It shows the way our traditional American rights and freedoms are being compromised,” said Ebert, a cafe regular who vacations in the area. “This man was granted political asylum in America for the same reasons he is now threatened with deportation.”

Gov’t prosecutions crumbling

Just how shaky and even corrupt this domestic “war on terrorism” really is was brought shockingly to light this summer by the disintegration of what the government had claimed was an exemplary case of closing down a “terror cell” in Detroit. In June 2003, a jury had convicted Abdul-Ilah Elmaroudi and Karim Koubriti of “material support of terrorism” and Ahmed Hannan of fraud, while acquitting a fourth defendant. The government had presented supposedly ironclad evidence against the four Arab Americans, claiming that they were planning attacks on, among other things, the Queen Alia hospital in Jordan and a Turkish air force base.

But this summer, the government had to eat crow, withdraw the terrorism charges and support the convicted men’s petition for a new trial on the fraud charges, when all the “aiding terrorism” evidence fell apart in a scandalous way.

It turned out that Ashcroft’s main man in charge of the case, Assistant U.S. Attorney Richard Convertino, is now accused of concealing key items of evidence from the scrutiny of defense attorneys. This evidence shows that what the government claimed were fiendish drawings of targets of terrorism were probably just doodles, and that evidence presented by a jailhouse snitch was almost certainly perjured.

In March, it was revealed that the FBI has been keeping two sets of case records, which suggests that it makes a regular practice of concealing from defense attorneys (and even prosecutors) evidence that would tend to exonerate people it accuses of crimes, a major violation of the original court order requiring all prosecutors to allow defense attorneys to see all evidence held by the prosecution which could either incriminate or exonerate their clients.

Targeting political dissent

The Bush administration has not confined itself to chasing down Muslims, Arabs and immigrants. It has gone after others, too.

One such case was the Justice Department’s prosecution of the

environmental organization Greenpeace for the felony of “sailor mongering,” an old and rarely used maritime law designed to stop ship boarding and bribing sailors to leave their ships and go to work on other ships.

Ashcroft tried to prosecute Greenpeace for this because in 2002 some of its members had briefly boarded a ship carrying illegally-logged mahogany wood and harangued the crew about environmental concerns. If found guilty, the Greenpeace “sailor mongers” could have gotten hard time, but the judge took one look at the prosecution’s brief and threw the whole thing out of court. This is why, incidentally, Bush wants to be able to appoint his own judges.

Kerry, Bush and the 2004 elections

While some on the left argue there isn’t “a dime’s worth of difference” between Democrats and Republicans, citing the fact that both John Kerry and John Edwards voted for the USA Patriot Act, this argument is a superficial way of looking at the matter.

Kerry and Edwards, noting the mobilization against Bush policies at the grassroots, have distanced themselves from the worst aspects of the Patriot Act and other repressive measures.

During the campaign this summer, Kerry and Edwards denounced Ashcroft’s policies. In a speech in Iowa City in July, Kerry said, “We are a nation of laws and liberties, not of a knock in the night. So it is time to end the age of Ashcroft.”

Both Kerry and Edwards have promised to seriously modify the Patriot Act, and reverse other Bush administration attacks on civil liberties. Kerry’s civil liberties program includes the following:

• An end to indefinite secret detentions.

• Strong denunciations of the Bush administration’s seizure of U.S. citizens as “enemy combatants,” adding, “Citizens should have the right to a lawyer and … foreign citizens should be given the right to hearings to determine their status.”

• No secret monitoring of attorney-client communications.

• An end to using terrorism as a pretext for harassing antiwar protesters, including ending the FBI’s ability to routinely monitor public meetings, religious services and other group activities, without judicial review.

• Strengthen judicial review of immigration cases.

• Require a court order to search library, bookstore, medical or other records of a person under investigation.

Kerry has come out against most applications of the death penalty, whereas the Bush administration is pushing in the opposite direction. When Bush was governor of Texas, he executed 152 people, and says he lost no sleep over it. The Bush administration seeks to increase the use of the death penalty in “terrorism-related” cases.

The clincher is what would happen with the federal judiciary under Kerry as opposed to Bush. Separation of powers and checks and balances only work if the judiciary at least has some autonomy from the executive branch. It is a near certainty that the next president will end up filling at least two Supreme Court positions. The idea that Bush, following the advice of Ashcroft, might fill those positions should alarm all supporters of civil rights and civil liberties.

On Nov. 2, your vote can make an important contribution to defeating the Bush-Ashcroft assault on democracy. It is crucially important that we do so.

Emile Schepers is a long-time civil and constitutional rights activist. He can be reached at pww@pww.org.