Orwellian
Fantasy
By
Angana Chatterji
22 July, 2003
After
Iraq what next? In its self-ascribed role as global cop, the United
States is scrutinizing the arc of instability, focusing
its Orwellian gaze across North Korea, South and Central Asia, Africa
and the Caribbean Basin. At home, the United States Supreme Court recently
reversed a ruling made 17 years ago that allowed states to target homosexuality
through punishing the practice of sodomy. The Court also preserved affirmative
action in college admissions while narrowing the parameters of such
action.
The Supreme Court's
ruling limits the power of government to regulate private life and social
action. In contradiction, the current administration continues to juxtapose
civil liberties and national security, acting to increase its powers
of surveillance and interrogation, and expand provisions of arbitrary
detention of non-citizens. Government policies have diminished the civil
rights landscape in the United States. Such policies have acted to weaken
the independence of non-governmental organizations, demanding uniform
obedience to the government's war on terror. This administration has
insisted on secret deportation hearings, authorized military commissions
to try non-citizen terrorists, and confined US citizens classified as
'enemy combatants' without charges or access to counsel. These actions
suggest the failure of government to defend human rights and international
law. While Americans persist in practicing freedoms sacrosanct to the
foundation of this country, powerful anti-Arab, anti-Muslim and repressive
currents continue to swirl.
An ominous indication
of this government's callousness toward civil liberties is the Patriot
Act. The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA-PATRIOT) Act
was proposed less than a week after September 11, 2001, and received
by the United States Senate on October 24. President Bush signed the
USA-PATRIOT Act into law on October 26, 2001. Given the expeditious
timeframe within which this legislation was proposed and adopted, one
must ask when and why the work on the 132-page document actually began.
The Act passed with
little discussion. Without a House, Senate or conference report it lacks
the legislative history essential to offering retrospective guidance
in statutory interpretation. Injecting a profusion of legislative changes,
the Act is in violation of the First, Fifth and Sixth Amendments. The
Act extensively increases the government's capacity to police and investigate.
It fails to instate checks and balances necessary to protect civil liberties.
Russ Feingold was
the only senator to oppose the Act, concerned about its implications
on the rights of immigrants, particularly from Muslim, Arab and South
Asian countries. Confirming Senator Feingolds apprehension, 1200
men of Middle Eastern descent were imprisoned, their identity and location
undisclosed, and denied due process rights. Eight thousand men were
questioned selectively. Entry and exit registration and fingerprinting
systems were imposed.
The USA-PATRIOT
Act erodes public scrutiny and accountability, and compromises judicial
oversight. It makes serious amendments to 15 significant statutes, including
the Family Education Rights and Privacy Act, the Electronic Communications
Privacy Act, Immigration and Nationality Act, the Computer Fraud and
Abuse Act, Right to Financial Privacy Act, Fair Credit Reporting Act,
and Bank Secrecy Act. The Patriot Act amplifies the disclosure of information
acquired in criminal investigations related to foreign intelligence
or counterintelligence. It impacts the Foreign Intelligence Surveillance
Act. The Patriot Act does not restrict dissemination of information
related to investigations of terrorist activities. It adds to the powers
of law enforcement agencies and empowers them to conduct searches without
a warrant. It expands the subpoena of records of electronic communications.
The powers consecrated
to the state via the Patriot Act can have egregious consequences on
the social and political life of the people of the United States. Section
802 of the Patriot Act enlarges the definition of terrorism to cover
domestic acts of terror. The American Civil Liberties Union has charged
that the scope of the definition itself is unlimited. By enveloping
domestic terrorism as all acts dangerous to human life, the government
may overreach its authority to include property damage or domestic violence
as acts of domestic terrorism!
As people in the
United States struggle to grasp the impact of the first Patriot Act,
this administration is proposing a second and more invasive Domestic
Security Enhancement Act. 'Patriot II' is premised on the inherently
precarious assumption that the United States will be made safer by rescinding
basic checks and balances on governmental power. Reproducing the unprecedented
power already sanctioned to government via the first Act, Patriot II
will permit the government to spy on activities protected by the First
Amendment. This new legislation will remove necessary constraints on
government power, undercut personal privacy, and the need for government
transparency. It will assail the heart of democracy and impact the access
of the press to information. It will scapegoat ordinary people, and
undermine the function of the courts and Congress in restricting executive
power. Such government excess supersedes the imagination of McCarthyism.
In the United States
there has been little effort to assess whether the inadequacies of existing
surveillance systems enabled the attacks of September 11, or if the
unprecedented changes made by Patriot I and proposed by Patriot II will
actually help prevent another attack. The American Civil Liberties Union
and other campaigns are insistent that before endorsing Patriot II,
Congress must analyze the terms of Patriot I to ensure that it conforms
to fundamental constitutional principles.
National security
is critical to our times and a commitment to strengthening the nation
must include reflection on the part of the state and civil society.
On September 11, 2001, four planes were turned into weapons of terror,
leaving around 3,000 dead. The attack violated the very premise of humanitarian
law and the lives of civilians in the United States. Following September
11, the United Nations Security Council, the G8 Group of Industrialized
Nations, and numerous regional alliances implemented fiscal and other
controls over political groups resolved to violence. Yet, in so many
instances, this determination on the part of nations and coalitions
to fight terror has ironically witnessed the revenging of innocent lives,
the undermining of human rights and the corrosion of international law.
As the political
spectrum narrows, we must energise a different script for citizenship.
Ethical citizenship must dissent the use of violence on the part of
states and groups. It must be critical of a corporate, military state
and its unilateralism. Freedom must come with formidable responsibilities.
To be for America, the yearning must be for democracy over empire.
Angana Chatterji is a professor of social and cultural anthropology
at the California Institute of Integral Studies in San Francisco.