Apr 112013
 

“US WAR ON TERRORISM:”

EROSION OF INTERNATIONAL HUMAN RIGHTS STANDARDS1

Maria Socorro I. Diokno

Editor's Note:  Ms. Ma. Socorro Diokno is the Executive Director of the Free Legal Assistance Group (FLAG), a national organization of lawyers in the Philippines known for its human rights advocacy and defender of political prisoners especially during the Marcos dictatorship.

The horror of the Second World War brought the international community together to reaffirm the inherent dignity of all human beings, regardless of race, gender or creed. With one voice, the international community adopted universal standards of humanity, which later came to be known as human rights.

The horror of September 11 brought the international community together to unravel the very standards and foundations of respect for the inherent dignity of every human being. With one voice, the international community now speaks of defending itself against the evils of terrorism, without taking into consideration fundamental rights and freedoms.

There is, unfortunately, no comprehensive and universally accepted definition of terrorism. A researcher once collected 109 different definitions of terrorism provided by various writers between 1936 and 1981;2 undoubtedly, there are many more definitions that have since cropped up. “Most authors agree that terrorism is the use or the threat of the use of violence, a method of combat, or a strategy to achieve certain targets, that it aims to induce a state of fear in the victim, that it is ruthless and does not conform with humanitarian rules, and that publicity is an essential factor in the terrorist strategy. Beyond this point, definitions diverge, often sharply.”3

The problem with the “US War on Terrorism” is that “it is a strange kind of war, without a country to fight against, without a conventional military struggle, without even a clear sense of how we will know we have won. … No one knows how vast or puny the enemy is or how exactly we should fight him. Most of all, we don’t know how to protect ourselves….”4

Certain disturbing trends in the United States’ “War on Terrorism” have substantial adverse impact on fundamental rights and freedoms.

On 14 September 2001, President George W. Bush declared a national emergency.5

Two months later, on 13 November 2001, President Bush issued a Military Order, Detention, Treatment and Trial of Certain Non-Citizens in the War against Terrorism, authorizing the detention and trial of non-US Citizens, whose identities shall be determined by the President from time to time in writing, before secret military tribunals where “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in US district courts” do not apply.6 The maximum penalty provided for trials before military tribunals is death.7 The Order allows President Bush alone to charge non US citizens with acts of international terrorism–but international terrorism–nor the acts that would constitute it–are not even defined in the military order. Tried in secret military commissions under rules established by the Department of Defense, the conviction and sentencing of “terrorists” would only require the concurrence of 2/3 of the members of the commission present at the time of the vote–not two-thirds vote of all members of the commission. The Order denies relief or appeal in any court of the United States, any foreign nation or any international tribunal, and lodges exclusive power of appeal in the US President or, at his election, in the Secretary of Defense. In effect, President Bush indicts, President Bush’s men sit in judgment and President Bush presides over any appeal.

A month earlier, on 26 October 2001, President Bush signed into law the USA Patriot Act, an act that “gives law enforcement agencies nationwide extraordinary new powers unchecked by meaningful judicial review.”8 The law is based on vague and unspecified predictions of threats to US national security. The law grants American law enforcement agencies expanded powers of surveillance procedures of all types, especially electronic and computer, including:

  1. monitoring attorney-client communications;
  1. increasing access to telephone, financial, transactional and educational records;
  2. lengthening periods of surveillance and authorizing the sharing of information obtained through surveillance and searches;
  3. allowing blank surveillance warrants issued under the Foreign Intelligence Surveillance Act. These warrants are roving wiretap warrants. For example, a warrant may be issued against all of a library’s internet communications, if the law enforcement agency suspects that a user of that library’s computer plans to engage in terrorist activities.
  4. lowering the requirement for pen register trap and trace–old mechanical devices used to tap telephones that are now being adapted to tap internet communications. These devices, now called Carnivore, may be used in any investigation–not only those relating to terrorism. Carnivore allows the placement of devices on Internet Service Providers’ servers to track and monitor internet communications. The law also requires Internet Service Providers to make their equipment “wiretap friendly” to facilitate law enforcement placing Carnivore.
  5. using a program called the Magic Lantern–a program that arrives by email from local law enforcement agencies, sits on your computer and records ALL your computer activity. At some preordained or triggered point, Magic Lantern sends an email to the law enforcement agency containing ALL your computer activity and information.

The USA Patriot Act also grants law enforcement officers the license to engage in racial profiling–the practice of a law enforcement agent relying, to any degree, on race, national origin or ethnicity in selecting individuals to subject to routine investigatory activities. Using RACE and ethnic appearance as predictors of “terrorist” behavior, US law enforcement agencies have now been focusing on Arabs or those of Arab descent, Muslims, Asians, among others, subjecting them to all forms of investigations and mass questioning, in all venues, including airport checks and checks on financial transactions. Racial profiling used to be referred to as “driving while black;” now it refers to “flying while Arab.”

The USA Patriot Act also grants American law enforcement agents expanded use of secret searches–searches without probable cause of crime nor particularized suspicion of wrongdoing. Persons subject to a search shall NOT be notified of the search. The law also allows law enforcement agencies to force a business or other institution (including educational institutions) to turn over a person’s educational, medical, financial, health and travel records based on a low standard of proof and without meaningful judicial oversight. Highly personal information shall be transmitted to federal law enforcement agencies, who are allowed to receive and review all data with a court order based on a mere certification that the records are relevant to an investigation. The Judge cannot challenge the certification.

The USA Patriot Act create a new crime, domestic terrorism, referring to any domestic groups that may be labeled terrorist organizations, thus making membership or material support a deportable offense. Such groups as those protesting the World Trade Organization, for instance, could be labeled a terrorist organization if these protestors engage in conduct that “involves acts dangerous to human life”–what these acts are, no one knows. Anyone who provides assistance to “domestic terrorists” could have their homes wiretapped and could be prosecuted.

The USA Patriot Act require financial institutions to monitor daily financial transactions more closely and to share information with other agencies, including foreign intelligence services such as the CIA. The law also allows law enforcement and intelligence agencies to get easy access to individual credit reports in secret; there is no judicial review, no notice to the person whose records are being reviewed.

A key statutory provision of the law is that it is easier to refuse to admit or deport aliens who belong to groups politically endorsing terrorist acts, or to someone who has endorsed or supported terrorism or who has been associated with a terrorist organization and intends to engage in threatening activities while in the United States. In this connection, the US Immigration and Naturalization Service [INS] issued an announcement requiring all non US citizens to report any change of address within 10 days from changing their address, or face a fine of $ 200, imprisonment of 1 month, and deportation. Certain aliens, including citizens of Iran, Iraq, Libya and Sudan are now required to register with the INS. The INS may add 33 more countries to this list and require any other person an INS inspector determines should be required to register. Failure to keep the INS informed of new addresses is punishable by fine of $ 1,000 and up to 6 months imprisonment.

Reacting to the USA Patriot Act, several cities9 across the United States have passed resolutions calling the USA Patriot Act a threat to the civil rights of the residents of their communities. In Portland, Oregon, the police refused to cooperate with the FBI on investigations of Middle Eastern students in the city, because state law barred police from questioning immigrants not suspected of a crime. There is, today, a “quiet revolt” around the United States against the USA Patriot Act.

The situation in the United States is startlingly similar to that in the United Kingdom. Shortly after the September 11 attacks, the United Kingdom enacted a new law, the Anti Terrorism, Crime and Security Act, which allows the indefinite detention of foreign nationals without charge or trial.

The law has been criticized as “not be[ing] driven by a code of justice” but rather as “a pretext for rounding up people … to harass and detain [them] without trial or evidence.”10 Indeed, the United Kingdom’s Special Immigration Appeals Commission recently declared the law discriminatory and unlawful. In explaining its ruling, Mr. Justice Collins said: “[The law] is not only discriminatory and so unlawful … to target non-British citizens, but also is disproportionate in that there is no reasonable relationship between the means employed and the aims sought to be pursued.”11

If these two countries, the United States and the United Kingdom, both renown for their adherence to democracy, have taken these drastic anti-civil libertarian and even draconian measures–to fight an unseen enemy–one can expect that other developing countries–those not particularly known for their adherence to democracy will soon follow suit.

Perhaps, today, Israel is the country that has taken America’s “war on terrorism” to new heights. The UN Secretary General recently reported12 that between 27 February and 20 May 2002, more than 8,500 Palestinians were arrested, 2,500 were released within a week, but more than 6,000 are still detained incommunicado. These arrests were undertaken by virtue of Military Order 1500, which authorizes soldiers to hold detainees for up to 18 days without access to a lawyer, family members or judicial review. The detention period may be extended up to 90 days by a military judge. In addition to arrest and detention, Israeli authorities have imposed food blockades that have resulted in chronic malnutrition in one out of two young Palestinian children, a 2.3 % rise in stunted growth and a 50 % rise in wasting. The use of force has been indiscriminate and disproportional: families of persons believed to have engaged in suicide bomb attacks have been arrested and exiled, their homes deliberately destroyed by air and ground attacks. Extrajudicial executions of innocent civilians, including women and children, which constitute a war crime, continue unabated.13

Israel is not, unfortunately, the only country in the world to follow in the footsteps of the United States and the United Kingdom. Asia, is also following suit.

On 16 October 2001, the Indian Cabinet approved the Prevention of Terrorism Ordinance–a law that enacts a broad definition of terrorism including acts of violence or disruption of essential services carried out with “intent to threaten the unity and integrity of India or to strike terror in any part of the people.” The new law criminalizes the failure to provide authorities with “information relating to any terrorist activity.”

On 29 October 2001, the Japanese Diet passed the Anti-Terrorism Special Measures Bill, to address international terrorist acts through such activities as cooperation and support activities for the US forces and others which aim to eradicate the threat of terrorist attacks, search and rescue activities, and relief activities to affected people.

In the Philippines, which recently hosted “the largest single deployment of U.S. military might outside Afghanistan,”14 eight anti-terrorist measures15 were filed before both Houses of Congress. One of the eight bills is a sober, rational proposal creating an Anti-Terrorism Plan for Children Council tasked to develop school evacuation plans, safe places for children to go to in case of an attack on a school or individuals in the school, partnerships with the medical community to ensure that children get the immediate care they need in the event of an attack, and procedures for notifying parents of evacuation plans and providing information on how and where to find their children in the event of an attack.16

Seven of the eight bills, however, are objectionable because of their serious effects on fundamental civil and political rights.

First, the bills infringe on the right to privacy by authorizing law enforcement officers to intercept communications and conduct surveillance operations, including through electronic means. These provisions are alarmingly similar to the expanded powers of surveillance procedures of all types found in the USA Patriot Act. Four of the bills, in fact, allow the use of John Doe (or roving) warrants to tap private communications, by allowing the use of an alias without any other means to particularly identify the person subject to electronic surveillance or wire tapping. What is to stop unscrupulous authorities from making up an alias for a person they wish to place under surveillance? The potential for abuse is frightening. Added to this, with current technology, the danger of fabricated recordings, spliced tapes and conversations taken out of context is real. The potential for abuse is frightening.

In addition, as in the USA Patriot Act, six of the eight bills grant law enforcement officers the power to inquire into bank deposits of persons or entities suspected of involvement in terrorism or conspiracy to commit terrorism. It is particularly alarming within the context of the Philippines because it arms law enforcement officers with the widest license to inquire into the bank deposits of persons who are merely assumed or perceived to be terrorists. Anyone could easily be assumed or perceived or suspected of being a terrorist.

Even worse, these twin provisions that invade the right to privacy of individuals, could encourage or lead to incidents of extortion, blackmail or even be the basis for kidnapping committed by erring law enforcement officers/syndicates.

Second, the bills encroach on the rights to free speech, assembly and association. These rights do not simply disappear because the organizations with which individuals wish to associate are politically unpopular. The right of association is intimately bound to free speech; both are essential to a free and democratic society. Yet the effects of these bills are precisely to banish these rights.

Four of the eight bills outlaw terrorist organizations “regardless of any legitimate activities conducted by the organization” and penalizes membership therein. Banning an organization is an unacceptable infringement of free speech; for it is undeniable that “quasi-political parties or other groups may embrace both legal and illegal aims. A blanket prohibition of association with a group having both legal and illegal aims would pose a real danger that political _expression of association would be impaired.”17 The Philippine experience has shown that proscribing an organization based on political views or aims is not likely to impair substantially its capacity for carrying out terrorist activities or to deter those most deeply involved in its activities.

Unpopular political speech is often disturbing or offensive to those who are exposed to it; yet “if our democracy is to flourish it must have criticism and dissent, for without criticism our government grows static, and without dissent, its abuses go unrecognized. A government willing to limit the _expression of views on an issue of public importance to those views that the government supports, unfortunately displays an insecurity over the correctness of the government’s own views. This creates the unwarranted suspicion that views disfavored by government have more merit to them than they may actually contain. … [The bills’] only discernible effect is to threaten the Constitution and the values supposedly protected by it.”18

Third, the bills impose the death penalty, a penalty repugnant to respect for human rights. In addition, international human rights law explicitly upholds the prohibition of imposing the death penalty for political offenses or related common crimes.19 Based on the bills’ definitions of terrorism, it is undoubtedly a political offense, for which the penalty of death cannot–and should not–be imposed. The need for this protection is of profound significance: it is needed to guard against abuse of state power particularly the elimination of political adversaries for political offenses or related common crimes often masquerading as offenses under the penal code. The bills grant licenses to kill political undesirables and/or political opponents, in derogation of the state’s obligation to respect and uphold the most fundamental of all human rights–the right to life.

Fourth, by pronouncing all members of “terrorist organizations” guilty of the “crime of terrorism,” Congress has deprived these individuals–and the organizations to which they may belong–of their right to be presumed innocent. They should have been–but are not–presumed innocent of the “crime of terrorism” until the contrary is proved in a court of law, not by the whim of Congress.

In addition, some of the bills penalize persons who knowingly or having reasonable cause to believe that another person is guilty of a terrorist act render assistance to that person with intent to prevent, hinder or interfere with the apprehension, trial or punishment of that person. The belief of guilt of another party is simply that–the belief of guilt. No person is empowered to judge another as guilty–that power rests solely with the courts. In fact, the underlying principle is–and should be–that all persons are presumed innocent unless otherwise proven by a competent court of law. To punish someone for helping a relative, friend or acquaintance, despite any belief or idea or assumption of guilt or innocence, when that relative, friend or acquaintance may not have been convicted, or even tried in a court of law, violates the presumption of innocence, encourages witch-hunting, and promotes the so-called “crab” mentality that government has blamed for the slow development of the country.

Fifth and corollary to this, by finding all members of “terrorist organizations” guilty of the “crime of terrorism,” these bills deny these persons their rights to due process and equal protection of the law. These members have not been–and will not be–informed of the nature and cause of the accusation against them. They have not been–and will not be–provided with any opportunity to answer the charges against them. They have not been–and will not be–provided with evidence against them nor with the opportunity to challenge that evidence or adduce evidence on their own behalf. By focusing on an individual or a group of persons, and treating them differently from the rest of the citizenry; by blatantly disregarding the rights of this “class” of citizens, the bills deprive them of their rights to due process and equal protection of the law.

In addition, the bills also violate the due process rights of the person or group of persons against whom an authorization order to secretly intercept private communications, or inquire into bank deposits, is sought. For they are completely barred from participating in any way in such proceeding, to the detriment of their life and liberty: they are not to be informed of the application of any such authorization order against them; they are not allowed to contest such application or any evidence that may be brought against them; neither are they allowed to present evidence on their own behalf. They will be subjected to invasion of their privacy rights without due process for indefinite periods by a battery of unknown and unnamed law enforcement officers, and, any recordings made or evidence obtained in violation of their privacy and due process rights will be used in evidence against them.

Sixth, the bills are vague and ambiguous and susceptible of grave abuse in their enforcement. Clear examples of the vagueness and ambiguity of the bill include, among others, the definitions of terrorism, acts of terrorism, terrorist organizations. These definitions are so broad and unclear that they could apply to almost any activity or offense. Terrorism defined as influencing behavior could, for instance, be a definition of sedition; it could also be a definition of advertising in that advertising does influence people’s behavior.

The definition of a terrorist organization is also vague. It is all too easy to label any organization “terrorist.” It is rather alarming because the bills are silent on who determines whether or not an organization is a terrorist organization and therefore whether it is banned or not; it gives government too wide a latitude; and it is subject to abuse. There is nothing in the bills to prevent government–or the branch or agency that will eventually determine the terrorist nature of an organization–to label, for instance, the Rotary Club, or the Jaycees, or medical or professional organizations, or sectoral groups, or non-governmental organizations, or people’s organizations as terrorists/terrorist organizations, since the label would largely be determined by the perceptions, assumptions, political beliefs, etc. of the labeler. “It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully retained, and who should be set at large.”20

Finally, the aims of the bills are already addressed by existing general law. The bills penalize what they call “acts of terrorism” (e.g., murder, hijacking, kidnapping, possession of “instruments of terrorism,” etc.)–acts that are already illegal in this jurisdiction and are therefore penalized by general law and statutes.

It has been said, time and again, that terrorism is a subject which provokes overreaction. “Hysteria over terrorism only serves to disguise the dangerous problems that would continue to threaten peace if terrorism subsided tomorrow, such as … the increasing divide between the comfortable and satisfied and the poor and enraged. …”21

Hysteria over terrorism is equally dangerous to human rights. “Human rights are more than legal concepts: they are the essence of man. They are what make man human. That is why they are called human rights: deny them, and you deny man’s humanity.”22
1Presented before the Asian Peace Alliance Inaugural Assembly, August 29 to September 1, 2002, Philippines.
2Walter Laqueur, The Age of Terrorism, Boston: Little, Brown and Co., 1987, page 143.

3Ibid.
4Fareed Zakaria, Delicate Balance: The Case for “Smart Profiling” as a Weapon in the War on Terror.

5Proclamation 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks.

6Section 1(f).
7Section 4.
8Laura W. Murphy, Director of ACLU Washington National Office, cited in USA Patriot Act Boosts Government Powers While Cutting Back on Traditional Checks and Balances, An ACLU Legislative Analysis.
9The cities are Cambridge, Northampton and Amherst in Massachusetts, the township of Leverett and the town of Carrboro, in North Carolina, Berkely in California, Ann Arbor in Michigan, Boulder and Denver in Colorado.
10Labour MP Alan Simpson, in “Judges Tear Up Anti-Terror Act; Detention of Foreign Nationals Rules Unlawful,” Morning Star, 31 July 2002.
11“UK Appeals Body Declares Terrorism Law Discriminatory,” Financial Times, 31 July 2002.
12Report of the Secretary-General pursuant to General Assembly Resolution ES-10/10 (Report on Jenin), Tenth Emergency Special Session, Agenda Item 5, Illegal Israeli Actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory.
13Economic and Social Council Considers Economic, Social Repercussions of Israeli Occupation of Palestinian Territory, Syrian Golan, ECOSOC/6024, 22 July 2002. Speakers in Security Council Condemn Israeli Attacks on Gaza City, Appeals for Dialogue, Moderation Also Heard, 4586th Meeting, Security Council SC/7465 24 July 2002.
14Eric Scmitt, “US-Philippine Command may Signal War’s Next Phase,” New York Times, 16 January 2002.

15House Bill 4980, An Act Defining Terrorism, Providing Penalties Therefor and for Other Purposes, introduced by Representative Joseph Ace Durano; House Bill 4987, An Act Declaring Terrorism as Heinous Crime, Amending for the Purpose the Revised Penal Code, as amended, Providing for Penalties Therefor, and for Other Purposes, introduced by Representative Augusto Boboy Syjuco; House Bill 5025, An Act to Prevent and Penalize Acts of Terrorism and for Other Purposes, introduced by Representative Robert Ace S. Barbers; Substitute Bill (Revised Draft as of July 27, 2002), An Act Defining Terrorism, Providing Penalties Therefor and for Other Purposes; Senate Bill No. 1458, The Anti-Terrorism Act of 2001, introduced by Senator Panfilo Lacson; Senate Bill No. 1980, An Act to Deter and Punish Acts of Terrorism and for Other Purposes, introduced by Senator Robert Barbers; Senate Bill 2263, An Act Defining the Crime of Terrorism, and the Financing, Preparation and Facilitation of Acts of Terrorism, Providing Penalties Therefor, and for Other Purposes, introduced by Senators Ramon Magsaysay and Sergio Osmeña III; and Senate Bill 2296, An Act Protecting Children against Terrorism and for Other Purposes, introduced by Senator Noli de Castro.

16Senate Bill 2296.
17Judge Jorge R. Coquia, Anti-Communist Statutes as Bills of Attainder, 48 SCRA 434, 448 [1972].

18Lance A. Harke, The Anti-Terrorism Act of 1987 and American Freedoms: A Critical Review, 43 U. Miami L. Rev. 667, 717 [1989].

19See Article 4(4), American Convention on Human Rights; see also Article 4, Section 6, Paris Minimum Standards of Human Rights Norms in a State of Emergency.

20United States v. Reese, 92 US 214, 221 [1876].
21Christopher Hill, The Political Dilemmas for Western Governments, in The Royal Institute of International Affairs, Terrorism and International Order, London: Routledge, 1987, at page 99.
22Jose W. Diokno, Human Rights Make Man Human, in A Nation for Our Children, Claretian Publications, 1987.

 

 

ASIAN PEACE ALLIANCE © COPYRIGHT

 

The date posted here is due to our website rebuild, it does not reflect the original date this article was posted. This article was originally posted in Yonip in 2002

 

 

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