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OpEdNews Op Eds    H3'ed 11/28/12

Where Liberty Lies: Civil Society and Individual Rights after 9/11

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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 Guanta'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 Guanta'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 Guanta'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.


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Author and journalist. Author of Islamic Pakistan: Illusions & Reality; Islam in the Post-Cold War Era; Islam & Modernism; Islam & Muslims in the Post-9/11 America. Currently working as free lance journalist. Executive Editor of American (more...)
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