During the
last decade when civil rights of citizens were violated in the aftermath of
the 9/11 attacks, the Congress has proved to be a source of law violations and abuse of civil rights, says Professor David Cole of the Georgetown University Law Center.
In a paper titled "Where Liberty Lies:
Civil Society and Individual Rights after 9/11", Prof. Cole argues that, while after
September 11 all three branches of government compromised in their commitments to liberty,
equality, dignity, fair process, and the "rule of law", civil-society groups dedicated to constitutional
and rule-of-law values consistently defended constitutional and human rights--and in so doing reinforced the checking
function of constitutional and international law.
Prof. Cole named the following civic advocacy groups: the American Civil Liberties Union (ACLU), the American Bar Association (ABA), the Bill of Rights Defense Committee (BRDC), the Center for Constitutional Rights (CCR), the Constitution Project (CP), the Council on American Islamic Relations (CAIR), Human Rights Watch (HRW), Human Rights First (HRF) and the Muslim Public Affairs Council (MPAC).
These
groups issued reports identifying and condemning lawless ventures and provided
material and sources to the media to help spread the word, he said, adding: they
"filed lawsuits in domestic and international courts to challenge allegedly
illegal initiatives; organized and educated the public about the importance of
adhering to constitutional and human-rights commitments; and testified in
Congressional hearings on torture, illegal surveillance, and Guantà ¡namo."
Prof. Cole
also highlighted the civil advocacy groups' coordination with foreign
governments and international nongovernmental organizations to bring diplomatic
pressure to bear on the United States to conform its actions to constitutional
and international law.
About the role of Congress in protecting the civil rights, Prof. Cole said that "during the last decade the legislature has, if anything, proved a source of law violations and abuse, and has provided little or no enforceable check on executive overreaching." In this regard he cites the following legislation:
"It passed the USA Patriot Act
shortly after the attacks, and while it did not give the President all that he
asked for, the Act expanded his
authority to conduct surveillance, gather intelligence, detain and deport foreign nationals on grounds of
political association and belief, and freeze
assets based on secret evidence, while relaxing judicial
oversight and other constraints on these powers." When the Supreme Court declared the President's military commissions illegal, Congress made them legal by
authorizing them in the Military Commissions
Act of 2006. When the Court held that the habeas
corpus statute extended to persons held without charge at Guantà ¡namo, Congress repealed that portion of the statute
in the Detainee Treatment Act.
"It granted retroactive immunity to telecommunications-service providers who, at the executive's request, engaged in illegal warrantless electronic
surveillance. And Congress has
repeatedly obstructed President Obama's efforts to close Guantà ¡namo by barring the expenditure of any funds
to transfer detainees to the United
States, even to stand trial in a criminal court, and requiring certifications for any transfer to a
foreign country that are so onerous
that transfers ceased for fifteen months.
"The one exception to Congress'
otherwise abject deference was its reaffirmation,
in the 'McCain Amendment' to the Detainee Treatment Act,
that the prohibition on cruel, inhuman, and degrading treatment found in the Convention Against Torture (CAT)
applied to all persons held by U.S. authorities, anywhere in the world,
regardless of their nationality.
"This provision, enacted over
vigorous opposition personally directed by
Vice-President Richard Cheney, repudiated the Bush
administration's contention that the CAT prohibition did not apply to
foreign nationals held outside the United States. That theory, counter to the
text and spirit of the CAT, was driven by the administration's
desire to inflict cruel and inhuman treatment on terror suspects, especially in the CIA's secret prisons.
In the McCain Amendment, Congress reaffirmed that this human-rights
protection applied equally to all human beings, whatever their nationality and wherever they are held.
"However, Congress provided no
mechanism for enforcing the provision.
Moreover, foreseeing that it might lose the vote in
Congress on the issue, the administration had already prepared a secret legal memorandum concluding that none of its
'enhanced interrogation techniques' were in
fact cruel, inhuman, or degrading in violation
of CAT, even when inflicted in combination."
Perhaps
the most important and surprising lesson of the past decade is that
constitutional and human rights, which seemed so vulnerable in the aftermath of
9/11 attacks, proved far more resilient than many would have predicted, said Prof.
David Cole. The role that civil-society organizations
committed to constitutional and human rights played in this period has lessons
for constitutional theory, constitutional doctrine, and constitutional
practice, he concluded.
