- The Washington Times - Monday, December 4, 2006

Today’s international terrorism is yesterday’s international communism.

Legitimate fears have been inflated manifold by President George W. Bush and Congress to justify lacerating the Constitution.

Public protest has been inaudible because the current victims are politically or socially marginal.

Episodic court rulings have blunted the worst of Mr. Bush’s excesses. But they will not hold unless the public also repudiates the president’s monarchical claims. Last week’s decision by the United States District Court for the Central District of California in Humanitarian Law Project v. United States Department of Treasury (Nov. 27, 2006) illustrates the justification for alarm and a repetition of Cold War abuses under the banner of anti-communism.

In the aftermath of the September 11, 2001 abominations, President Bush issued Executive Order 13224 (the “EO”) to block all property and interests in property of 27 groups and individuals. The president unilaterally designated them as “specially designated global terrorists” (SDGTs). No explanation was given as to why the groups and individuals had been designated. Neither was evidence proffered implicating them in global terrorism. They were given neither notice of their designations nor an opportunity to be heard. Moreover, the president asserted authority to enlarge the 27 to whatever number he wished with whomever he wished; and, to wield that terrifying power permanently because of the continuing threat of future terrorist attacks.

In sum, President Bush insisted the Constitution allowed him authority to destroy the finances, employment or social standing of any person or group he disliked by designating them as SDGTs. The indictments of King George III in the Declaration of Independence contained nothing as tyrannical. And President Bush’s tyranny was gratuitous. It unnecessarily bypassed minimal due process safeguards against arbitrary or vindictive designations, as underscored by the EO itself.

It also empowered the secretary of treasury to designate SDGTs, but specific findings were required, for example, that the designated person has committed or poses a significant risk of committing an act of terrorism that threatens “the security of United States nationals or national security, foreign policy, or [the] economy of the United States.” Further, SDGTs listed by the secretary can seek reconsideration of their designations, and are entitled to a written decision by the Treasury Department.

President Bush’s designations of SDGTs might have been warranted for a period immediately after September 11. Whether tens or hundreds of planned terrorist attacks lurked in the United States then was unknown. Instant blocking of assets arguably could have delayed or foiled the plots. But Mr. Bush neither renounced nor relaxed his tyrannical designations when events and intelligence had discredited the worst post-September 11 fears. More than five years later, he asserted perpetual authority to list SDGTs on his word alone.

The EO additionally tyrannized by authorizing the secretary to designate as an SDGT any person who assists or is “otherwise associated with” a designated terrorist group. The latter term was not further defined, and could include an ideological association, an Internet association, or a humanitarian association. The vagueness of “otherwise associated” was so flagrant that even President Bush’s Justice Department declined to defend its constitutionality.

District Judge Audrey B. Collins correctly held both of Mr. Bush’s EO tyrannies unconstitutional. But they were not aberrational. Shortly after September 11, the president also directed the National Security Agency to target American citizens on American soil for electronic surveillance without warrants in contravention of the Foreign Intelligence Surveillance Act. He claimed inherent constitutional authority to gather foreign intelligence by any method whether or not prohibited by law; including physical searches, mail openings or torture.

He further asserted in a post-September 11 world authority secretly to abduct, transport, interrogate and detain indefinitely aliens suspected of complicity in terrorism. Mr. Bush invoked that frightening, unchecked power against 14 “high value” al Qaeda suspects. They were recently transferred to Guantanamo Bay for trial as war criminals after spending long years in secret detention hidden from civilization. They could have been imprisoned for life and hidden forever without charge or trial, according to President Bush.

He has also insisted that the entire world’s a battlefield where military tactics are appropriate to kill or to capture suspected terrorists. Thus, Jose Padilla, a suspected unlawful enemy combatant, could have been shot with an AK-47 when he landed at O’Hare International Airport in Chicago.

During the Cold War, international communism provoked similar exaggerated responses. In 1947, President Harry Truman issued Executive Order 9835, which empowered the attorney general to list those organizations that he deemed “totalitarian, fascist, communist, or subversive.” Past or present membership or sympathetic association with a listed organization could justify discharging a government employee for disloyalty. Neither the listed organizations nor their members had a right to a hearing to contest the listing, or a right to judicial review. The vagueness and secrecy of the listing criteria justified citizen wariness over joining any organization. The number listed climbed from 78 in 1948 to 254 by 1953. In the meantime, the Supreme Court held that the failure to offer them a hearing to rebut the stigmatizing accusations was illegal in Joint Anti-Fascist Refugee Committee v. McGrath (1951). No evidence ever surfaced suggesting that complying with a hearing requirement impaired the defeat of communism.

In the year of Truman’s ill-conceived executive order, the House Un-American Activities Committee asked Ronald Reagan, then-president of the Screen Actors Guild: “[W]hat steps should be taken to rid the motion-picture industry of any Communist influences?” Reagan counseled: “I never as a citizen want to see our country become urged, by either fear or resentment of this group, that we ever compromise with any of our democratic principles. … I still think that democracy can do it.”

Any democracy worthy of the name can also defeat international terrorism without compromising its core civilizing principles.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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