by Kit Gage
First published by Independent Politics News of
IPPN, Spring 2001 Updated August 2001
People forget that hardly anything is scarier to our, or perhaps any,
government than political dissent. It seems that peaceful noisy dissent
is the most bothersome, perhaps because it's more complicated to stop.
This has been true for hundreds of years in the U.S., and well documented
from the time of the Palmer raids early in the 20th century. The FBI
really was founded to try to go after those pesky immigrants who sought
a 6 day work week and an 8 hour work day. The FBI and local police have
been doing that kind of work ever since, alongside of fighting actual
Not infrequently, the U.S. gets particularly exercised by international
connections. New immigrant groups come to the U.S., and repeatedly have
found themselves targeted for various reasons. For Salvadorans, black
South Africans, Palestinians and many others, part of what led to their
surveillance was their support for a liberation movement in their homeland.
Because those particular liberation movements were not consonant with
U.S. foreign policy, they were the object of investigation, demonization,
deportation, exclusion and worse.
Immigrants (remember Emma Goldman) had been deported earlier in the
century for protesting U.S. entry into World War I, and for espousing
the then new communist or anarchist ideology. Later, the McCarran-Walter
law and other laws led to the deportation of non-citizens for membership
in organizations, and outlawed others from entering the U.S. because
of similar membership in organizations and beliefs, and was particularly
enforced post-World War II.
"Terrorists" Replace "Communists"
After McCarran-Walter was finally abolished in 1994, it was quickly
supplanted by the Antiterrorism and Effective Death Penalty Act (AEDPA),
signed in 1996. Anti-communism was replaced by anti-terrorism. In the
few years before AEDPA was passed, the government had passed executive
orders and guidelines and started introducing bills concerning "terrorists" and "foreign
terrorist organizations and countries." These laid the intellectual
groundwork for the transformation to a focus on anti-terrorism as the
Soviet Union was collapsing, and therefore the object of our enmity had
to be modified.
As part of its modified arsenal against terrorists, the government decided
that it should and could finally codify the use of secret evidence in
deportation related proceedings, rather than continue to rely on some
slightly off-point cases and regulations. As well, it criminalized contributions
of humanitarian aid knowingly given to specific designated "foreign
terrorist" groups. That designation process has made it quite clear
that the U.S. uses politics and diplomacy to decide who among hundreds
of groups involved in various levels of violent dissent in their countries
is going to get the label "foreign terrorist organization." You
have not heard of this last law probably, but the U.S. is now prosecuting
two cases, one in North Carolina and the other in California. This will
become a major First Amendment fight.
On the other hand, secret evidence already has been used more extensively.
In the last 10 years or so, the Immigration and Naturalization Service
claims to have used it against about 28 people. It has not used new law,
rather it relies on old McCarthy era case law and regulation to violate
the constitutional right of due process. People - largely Arabs and Muslims
- have been held in jail for up to 4 years, denied bond using evidence
they and their lawyers cannot see.
In almost every case, when the individuals are arrested, the government
calls them terrorists and claims they have committed heinous acts. But
rather than charge them with these crimes, the government instead tries
to deport them.
The individuals, lacking specifics, find it impossible to rebut the
evidence or counter faceless witnesses. When pressure has been brought
to bear, and significant evidence released, many of these individuals
are able to disprove the evidence. Most have won their cases after many
years, and only one Sikh man remains detained through the use of secret
evidence. The National Lawyers Guild has been critical to building a
unified legal defense strategy in these cases. The Secret Evidence Repeal
Act - which would outlaw use of secret evidence almost entirely, got
strong support in the last Congress and is now being reintroduced.
The organization of the National Coalition to Protect Political Freedom
has made a huge difference. Arab American and Muslim communities in the
U.S. that felt chilled and isolated because of the targeting, the use
of secret evidence, FBI interviews in the community, and grand jury investigations,
now recognize they have support outside their communities from across
the country. They have begun to hear of the history of this abuse, and
to feel the power of a cross-ethnicity and race alliance, and of strong
legal support. Our strength has been the focus on the right of any group
to express its politics and its views publicly without criminalization.
The blurring by the government of First Amendment activity and criminal
behavior is much more blatant today than in recent decades and requires
stronger organizing to combat.
Stepped Up Domestic Repression
Domestically, the government has stepped up its assault against homegrown
dissent - as anyone who was part of Seattle, April 16 and the inaugural
in DC, Philadelphia and Los Angeles knows. Likewise, those who read about
or viewed it, particularly on the alternative media like Independent
Media Center that covered it from the ground saw the spectacle of military
style police assault.
But we should step back a minute. The stage has been set for this domestic
law enforcement assault in a couple of ways. Following COINTELPRO - FBI
and police attack against dissent in the 1950s 1960s and 1970s, Attorney
General guidelines were toughened, civil suits against city police resulted
in prohibitions against First Amendment based investigations (Red Squad
In the last years those guidelines have been loosened, the Antiterrorism
Act removed a provision in the 1994 crime bill outlawing First Amendment-based
investigations by the FBI, and the FBI has worked actively with police
around the country to void the limitations from the lawsuits. The FBI
argues openly (if not exactly shouting from the rooftops) that it cannot
investigate terrorism if it is shackled from collecting information on
peoples' beliefs, memberships, and peaceful protests. And so it is unshackling
Many of you know that technological advances have helped the FBI and
police as well. It's easier to collect information clandestinely. You
no longer can hear the bugs on the phone or detect them; there is a broader
array of gas, stun devices and etc. Cameras are littler, and aerial surveillance
is more exact. And the old tried and true techniques remain in place:
infiltration of groups, mass arrests, intimidation by brute force, advance
disinformation about the nature of the protest leaked to the press.
There are three goals of these law enforcement activities. The first
is to stop you from protesting or speaking out or marching or complaining
generally - the chilling effect. The second is to get you out of circulation
for specific events, to limit your activity at the events, and to distract
the public from your protest by connecting any violent activity with
the whole group - discrediting effect. The last is to stop the movement
- by continuing arrests, limits on activity and travel, major overblown
charges it takes huge legal teams and maybe a bunch of money to fight,
and again disinformation in the press - this is the neutralization.
Knowing the intent, the underlying theory, and the tactics and strategies,
gives us power. We know better what we're facing. We can be impressed
by the array of force, but need not fear it as the unknown. We can mostly
avoid being chilled, discredited and neutralized by keeping on top of
the technology, sharing information around the movement about law enforcement
strategies and tactics, and being public about our work, our movement,
our intent. We too can use the press. We can use the law to stop the
most predictable illegal tactics. We are allied through the National
Lawyers Guild and its new Mass Defense National Committee with the progressive
legal movement to try to limit the jail time and egregious treatment.
We can also pay our parking tickets, not say stupid stuff on the phone
and otherwise not give anyone an irrelevant reason to sidetrack us. If
we are scared off, they win.
Ultimately, our best weapon is the power of our movements for peoples'
rights. We can keep getting that information, that cause out to the public
- in our myriad ways. When the pictures show a huge force arrayed against
a wall of just us, one putting a flower into the muzzle of the gun, we
The government tried to portray its use of secret evidence as necessary
to pursue terrorism, thinking that would provide cover. Instead the movement
against secret evidence recognized this was instead a constitutional
issue. We set about to prove that, and went to the press, to communities
and organizations across the country, and even to the Congress and many
others in government. All the editorials have recognized this as a due
process issue. Almost everyone else has as well. Hard work, a broad coalition,
and fearless consistency are winning the day. Now we have to bolster
the dented First Amendment. It will be a longer fight, but one we must
The effort to retake the First Amendment must be joined by immigrants
seeking their full rights, working together with homegrown citizen movements
advocating political change. These diverse constituencies will be more
convincing because they not only espouse particular causes, but because
they are seeking to strengthen the full range of peoples' rights - to
put full-throated dissent in the mainstream where it belongs.
Executive Vice President, National Lawyers Guild Executive Director,
First Amendment Foundation and NCARL - the National Committee Against
Repressive Legislation National Coordinator, National Coalition to Protect