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The US constitution was framed with the explicit purpose of strengthening the Federal government in order to protect among other things the integrity of the Union. But in the debates that ensued before the ratification of the new constitution, the anti-federalists pressed for the inclusion of the Bill of Rights in order to protect individuals and states from the leviathan that would emerge from the new constitution. But we all know the sacred history of the American constitution -- the social contract par excellence -- and we do not need a Johnny come lately like me to remind us of this. Or do we?
Since Sept. 11th, the two nations most affected by it, America and Afghanistan, have been rapidly hurtling in the opposite direction on the highway of freedom. With each passing day, with every victory for the US and its allies, Afghanistan is becoming more and more of a free state.
Some of the new legal measures taken to preempt further attacks on America are unfortunately clipping away at the Bill of Rights. Every new legal measure seems to raise a new civil rights concern. In the following section I shall examine how the new measures affect the Bill of Rights.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The new terrorism bill not only allows law enforcement officers to secretly search homes and offices of people (with the collusion of judges), it also permits federal agencies to hold people without charges for seven days. These new provisions nullify each and every safeguard in article four.
No person shall . . be deprived of life, liberty without due process of law.
The executive order that allows the government to try and punish suspects using military style tribunals a legal term for kangaroo courts -- and even execute them using very low standards of evidence is an assault on an important clause of the fifth amendment.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him;
The terrorism act of 1996 had permitted the use of secret evidence to prosecute and deport terrorists. The idea of secrecy was incorporated in that law to safeguard the intelligence sources of the evidence, such as a mole in a terrorist cell. But in the few cases it was used, almost all judges threw the cases out after perusing the evidence as insufficient. FBI and INS were using the term secret, in secret evidence as a substitute for evidence itself. The case of Mazen Najjar, a Palestinian from Florida who was detained for three years from 1997-2000 and then set free when a judge ordered his release after finding no evidence against him, adequately illustrates how this law could and was abused. The secret evidence act that still remains in the law books and is being used by the present administration violates many of the provisions of the sixth amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The American constitution does not safeguard the rights of citizens alone. It also safeguards the rights of all those who are subjects of US laws, i.e. those who reside within the territorial borders of the US. The tendency of the new administration and the new terrorism bill to differentiate between citizens and non-citizens with regards to civil liberties is a gross violation of the ninth amendment, which in my opinion protects the unenumerated rights of permanent residents and legal as well as illegal aliens.
Perhaps my fears are exaggerated. But believe me there is no exaggeration here when I say that we are rapidly slipping down the scale of liberty and freedom.