Rule of Force v. Rule of Law:
The Global Lock-down on Civil Liberties

Malcolm Rogge

"Even with the minor amendments that were introduced recently, the Bill threatens to silence the most vocal critics of government policy and the corporate elite: student, labour, environmental, aboriginal and anti-neo-liberalism protesters."

Special to Canadian Dimension Magazine
December 16, 2001
http://www.canadiandimension.mb.ca/frame.htm
 

While intense public debate roars on in Canada over new anti-terrorism legislation, governments around the world are passing their own broad anti-terrorism laws at breakneck speed, with virtually no public debate. By circumventing civil rights in the name of “security,” governments on all continents are, in effect, “locking down” against forceful political, religious and ideologically motivated protest. In response, human rights organizations, activists, and citizen’s groups all around the world are mounting continuous protests against these draconian new laws.

Public opposition to Canada’s anti-terrorism legislation, Bill C-36 and the companion Bill C-35, has been widespread and remarkably non-partisan. The Canadian Bar Association and the Canadian Civil Liberties Association have been highly critical of the vagueness of key terms in the legislation, and of the fact that the more controversial provisions are not limited by a sunset clause. Many activist groups believe that the new laws will be used by overzealous law enforcement officers to suppress activist strategies for engaging public debate on issues of the public interest. Even with the minor amendments that were introduced recently, the Bill threatens to silence the most vocal critics of government policy and the corporate elite: student, labour, environmental, aboriginal and anti-neo-liberalism protesters.

The move to implement a global anti-terrorism legal regime has been swift. In the United States, the USA Patriot Act galloped through the House of Congress and the Senate with nary a word of debate. In the United Kingdom, three new anti-terrorism Acts are now being considered, and a Bill to implement mandatory identification cards may also be introduced. Meanwhile, Russian President, Vladimir Putin has spoken about the need to amend already existing anti-terrorism legislation to address new threats, and Mexican President, Vicente Fox, has talked about the need to create new legislation to facilitate the war against terrorism. The German cabinet, under Social Democrat Chancellor Gerhard Schröeder, recently approved stricter controls on immigrants originating from Muslim countries, and approved a registry in which personal details will be entered. Very recently, the Indian government proposed the Prevention of Terrorism Ordinance (POTO). This ordinance will permit authorities to detain terrorism suspects for six months without trial, and the burden will lie on the suspect to prove that he or she is not a terrorist. Anti-terrorism laws are not entirely new. The United Kingdom passed the Anti-Terror Act in 1973. Peru and Colombia passed elaborate anti-terrorism laws during the 1990s and used these laws to arrest thousands of dissidents. In Peru, anonymous three-member panels of judges acquitted over 85% of the suspected terrorists who went to trial. It is important to note that anti-terrorism criminal laws apply only to individuals and groups, and not to States, even though ideologically motivated State violence is pervasive.

The concerted global effort of governments to eradicate international terrorism has been guided, in part by a United Nations committee. On November 21, 2001, the United Nations General Assembly’s Sixth Committee adopted a resolution to resume negotiations at the end of January on a Comprehensive Convention on International Terrorism. The New York-based Human Rights Watch has called on the United Nations to amend the proposed treaty to ensure that it does not adversely impact on refugee protections, freedom of expression and international humanitarian law.

Human rights groups around the world are waking up to the global assault on civil liberties. The Indian National Human Rights Commission has criticized the POTO, stating that the existing criminal law is sufficient to fight terrorism. Indian citizen groups have expressed shock over the proposed Bill, and are concerned that the POTO will be used to suppress the rights of trade unionists, human rights activists and minorities. Journalists have expressed grave concerns about the impact of the anti-terrorism laws on freedom of expression. In the United States, Human Rights Watch and the American Civil Liberties Union have issued statements denouncing the new laws because of their potential impact on the work of journalists. In Canada, the Canadian Journalists for Free Expression (CJFE) and the Fédération professionelle des journalists du Québec (FPJQ) issued statements urging the Canadian government to withdraw or substantially amend Bill C-36. Reporters sans frontières (RSF) is concerned that many of the provisions in the Indian government’s proposed POTO threaten to muzzle journalists who cover sensitive political topics in Kashmir and Assam, where separatist movements exist.

Concerns are also mounting in Europe over the anti-terrorism laws that members of the EU intend to implement. At its annual meeting in London, England, the Writers in Prison Committee of International PEN (WiPC), declared that “The atrocities of September 11 should not be exploited by governments to assume extraordinary, unjustified powers to curtail freedom of expression.” Human Rights Watch in Europe has expressed serious concern that the definition of terrorism included in the European Commission Proposal for a Council Framework Decision to Combat Terrorism is far too broad. In the EU proposal, terrorism is defined as the “intentional commission of an act against one or more countries, their institutions or people by an individual or group with the aim of intimidating and seriously altering or destroying the political, economic or social structures of these countries.” Their list of terrorist offences include the “unlawful seizure of or damage to public transport, government facilities, places of public use, and public and private property, including acts of urban violence.”

The danger of the rapidly emerging global anti-terrorism regime lies in the naïve view that civilian police and other national security forces are competent to implement extremely complex anti-terrorist legislation with very little supervision from the judiciary. Most of the proposed laws are structured to remove certain requirements for judicial oversight of police action, with a view to facilitating the rapid investigation, obstruction, and incarceration of suspected terrorists. With the new provisions, judicial oversight of police investigations are deferred until long after the surveillance, searches, arrests, detentions, and interrogations of “terrorist suspects” have already occurred. It will take several years for the Constitutionality of the new laws to be tested in the courts.

How is it that such vast powers were granted to police with so little parliamentary debate? The anti-terrorism laws in North America were able to pass because of widespread panic in the wake of September 11, and because it just seems so obvious to everyone what terrorism is and that we need to stop it. But in soberer times, lawmakers have found that defining the offence of terrorism is not as easy as it first appears. To understand this point, one only needs to recall that Margaret Thatcher labelled the African National Congress (ANC) a terrorist organization, and that many prominent politicians and military leaders openly stated the imprisonment of Nelson Mandela was just and proper.

The difficulty in defining “terrorism” for the criminal law arises because terrorism is ideologically motivated. To be coherent as such, anti-terrorism laws must include an ideological element. However, the criminal law generally applies without consideration of the accused’s political or religious beliefs. In Canada, the Charter of Rights and Freedoms expressly guarantees everyone the “freedom of thought, belief, opinion and expression.” Laws that discriminate based on any of the grounds enumerated in the Constitution are regularly challenged in the courts. With anti-terrorism legislation, the beliefs of suspects and the accused become a legal element of a criminal offence. Under normal criminal law, the prosecution must establish, beyond a reasonable doubt, both the evil act and the evil intent. Establishing that the accused intended to harm the victim is sufficient to establish the evil intent, one need not examine the ideology that lies behind the intent to harm. But anti-terrorism legislation actually instructs law enforcement officers to look at the ideology that motivates people. One of the dangers of such broad preventive anti-terrorism laws is that they instruct police to contemplate a citizen’s active participation in the political life of his or her country, as evidence of one of the elements of the criminal offence of terrorism. For the overzealous police officer, deep religious conviction or forceful political activism may be viewed as indicia of the offence of “terrorism.”

With the promulgation of the USA Patriot Act, the U.S. government has set the standard by which other government’s commitment to the war against terrorism will be assessed. The USA Patriot Act is by far the most dramatic of all the new anti-terrorism legislation, if only because of the speed with which it was passed into law. The American public had no time to debate or comment on the law before it was passed. Neither the House nor the Senate held hearings on the Bill. George W. Bush signed it into law on October 26, 2001, a mere six weeks after the terrorist attacks. The Act expands already existing search powers and adds new ones. The American Civil Liberties Union has argued that the definition of terrorism in the Act is so broad that it might be used to repress activists if police conclude that the activist tactics endanger human lives. Under the new laws, police have increased surveillance powers. Under certain conditions, the law allows secret “sneak and peak” searches, in which federal authorities may enter a home or workplace, search the property, take photographs, make notes, and seize property without informing the person who is being searched.

Meanwhile, the FBI has defined domestic terrorism to include “left wing groups” who “profess a revolutionary socialist doctrine and view themselves as protectors of the people against the ‘dehumanizing effects’ of capitalism and imperialism.” The FBI definition also includes “anarchist and extremist socialist groups” such as Reclaim the Streets and the Carnival Against Capitalism as groups which represent a potential threat to the United States.

On November 13th, 2001, George W. Bush issued his White House Military Order On Detention, Treatment and Trial Of Certain Non-Citizens In The War Against Terrorism. With this unprecedented executive order, Bush granted himself the authority to submit non-citizens to trial before secret Military commissions. In these “kangaroo courts,” suspects may be tried in secret and sentenced to death by a mere two-thirds majority vote on a three person commission.

What does the emerging global anti-terrorism legal regime mean for politically active youth? With the promulgation of broad anti-terrorism laws and new funds for their implementation, police surveillance of dissident groups is likely to increase, and with that, there will be increased paranoia‹a profound sense of insecurity may be the logical result of purported “security” measures. The question many political activists are asking is whether one of the motives for passing such broad anti-terrorism laws is to stymie the world wide success of anti-globalization protests. Will young activists take it for granted that their email newsgroups and list-serves will be monitored, or that undercover police from anti-terrorism units will attend simple protests?

With a global war against terrorism in place, many governments will regard the mass protests against the institutions of global capitalism as intolerable. The events of September 11 have already had a profound impact on a global economy that was already in recession. In the neo-liberal view, any further delay to the entrenchment of the neo-liberal model will only worsen the already weakened global economy. Thus, the suppression of anti-neo-liberal dissidents around the world is likely seen as a necessary part of limiting the inevitable adverse economic impact of the war against terrorism. For the neo-liberal policy makers, the implementation of broad anti-terrorism legislation that can potentially be used to suppress mass protest is rational and convenient. When lawmakers state that the new anti-terrorism laws strike a balance between liberty and security, we must consider that, in their view, neo-liberal economic integration is considered a precondition for security. Presently, ensuring our security, in the view of many world leaders, means ensuring the prevalence of the neo-liberal model and its bulwark institutions.

Will the global anti-terrorism regime actually make the world's citizens more secure? Or will citizens be faced with a new fear, the fear that political activists, minorities, and members of religious groups will be swept up in a furious attempt to wage a global war against an unknown and undefined enemy. The mass detentions of people of Muslim descent in the United States suggest that such fears are not unwarranted. Arguably, the dramatic laws that have been proposed around the world will have a profound impact on the modes of political resistance that are played out over the next decade. With the new laws in place, security forces will view persistent, forceful, and active dissent against domestic and foreign policy as one indicator of the offence of terrorism. The police, not the courts, will look at a suspect’s political, religious, or ideological beliefs when deciding whether a terrorist or a criminal framework applies. We must prepare to forcefully challenge the unjust application of these laws, in the democratic process, in the courts, and, most importantly, in the streets.

Malcolm Rogge joined the CD collective in July, 2001. Some of his recent work is published in the Texas International Law Journal, the Canadian Journal of Development Studies, and the Journal of Third World Legal Studies. He is currently the Executive Director of the Liaison of Independent Filmmakers of Toronto, and a member of the Toronto Video Activist Collective. mrogge@interlog.com