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THE PATRIOTIC DUTY TO DISSENT
Professor Marjorie Cohn
Thomas Jefferson School of Law
JURIST Contributing Editor

Reichmarshall Hermann Goering of the Third Reich once said: 的t is always a simple matter to drag the people along to do 鍍he bidding of the leaders, regardless of the form of government. 鄭ll you have to do, he said, 妬s to tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country.

Indeed, this strategy is working in the United States. Attorney General John Ashcroft painted the defenders of civil liberties as anti-American fear-mongerers when he said in December: 典o those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America痴 enemies and pause to America痴 friends.

This is the same John Ashcroft who rammed the 填SA PATRIOT Act through a timid Congress, urged federal agencies to resist Freedom of Information Act requests, and plans to engage in new COINTELPRO-style surveillance activities.

Ashcroft痴 PATRIOT Act creates a new crime of domestic terrorism so broad it will cover civil disobedience and target environmental and anti-globalization activists. Representative Scott McInnis (R-CO) has already subpoenaed a spokesperson for Earth Liberation Front, which McInnis has dubbed an 兎co-terrorist organization, to appear before the House Subcommittee on Forests and Forest Health.

No wonder Ashcroft has instructed all federal agencies to resist Freedom of Information Act requests. The FOIA, enacted in 1974 in the wake of the Watergate scandal, is one of our most significant democratic reforms. It permits citizens to hold the government accountable by requesting and publicizing public records and documents. Pursuant to FOIA requests, the Charlotte Observer recently uncovered records detailing how the Duke Power Co. manipulated its books to avoid exceeding profit limits that would have mandated a rate cut, and USA Today exposed a widespread pattern of misconduct among the upper echelon of the National Guard, including the inflation of troop strength, misuse of taxpayer money, sexual harassment and the theft of life-insurance payments.

Ashcroft also seeks to resurrect the counterintelligence programs, known as COINTELPRO, which were responsible for intensive FBI surveillance in the 50痴, 60痴 and 70痴. The spying, which targeted Martin Luther King, Jr. and other civil rights leaders, was so horrendous that Congress put a halt to it.

The new 菟atriotic act will permit the government to spy on all of us more easily through its aptly named Carnivore surveillance system. Carnivore devours all of the communications flowing through an internet service provider痴 network, not just those of the target of the surveillance.

In mid-December, the FBI announced it is developing another new internet spying software called 溺agic Lantern. It will surreptitiously enter an individual痴 personal computer, record every keystroke and zap all of that data back to the G-men and G-women, in violation of the federal wiretapping statute and the Fourth Amendment.

Many people oppose the direction of the government痴 war on terror, which, Vice President Dick Cheney warns, will last 50 years and extend to 50 or 60 countries. There is opposition to President George W. Bush痴 request of an additional $48 billion to enhance an already engorged military budget, at the expense of social services. Yet many fear they will be harassed for speaking out against the government in this time of xenophobic flag-waving.

Those who seek to curb the excesses of governmental repression do so at great risk. Human rights activist Benjamin Prado, who tried to document the U.S. Border Patrol痴 racial profiling on the San Diego Trolley, was savagely beaten, assaulted and detained by 12 Border Patrol agents for 25 hours with no charges, after his video camera was confiscated and destroyed.

Hundreds of other people of color, particularly those of Middle Eastern descent, are currently detained in U.S. prisons. Most, like Rabih Haddad, are suspected of no crime or connection to the events of September 11; yet they are being held incommunicado, in indefinite, preventative detention, in violation of the Constitution. In a recent letter, Haddad, a Lebanese immigrant who has been in custody for 76 days in Ann Arbor, Michigan, detailed his conditions of confinement. Strangely reminiscent of the prisoners in Guantanamo, he described his 6 by 9 solitary cell, the camera permanently fixed on him, his lack of exercise and 努aves of cockroaches in his cell at night.

Mr. Haddad痴 story brings back memories of the excesses of our government during World War II, when it interned thousands of Japanese-Americans, in a shameful and racist overreaction. In a similar dragnet, federal agents have announced they will soon begin apprehending and interrogating thousands of Middle Eastern immigrants who have ignored deportation orders.

President Bush has accused the terrorists of attacking our democratic way of life. The foundation of a democracy is the right and duty to dissent against misconduct by governmental leaders. Dissent, also unpopular in the early stages of the Vietnam War, was later voiced by a majority of Americans.

We are responsible for the actions of our government. When it fails to act in a moral and lawful manner, we must speak out and educate our fellow citizens about the abuses. If we fail to dissent for fear of governmental retaliation, we will have confirmed the truth of Hermann Goering痴 frightening prediction.


Marjorie Cohn, an associate professor at Thomas Jefferson School of Law in San Diego, is on the national executive committee of the National Lawyers Guild.

March 8, 2002

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CONTRIBUTING EDITOR

JURIST Contributing Editor Marjorie Cohn is an associate professor at Thomas Jefferson School of Law in San Diego, where she teaches Criminal Law, Criminal Procedure, Evidence, and International Human Rights Law. A news consultant for CBS News and a commentator for Court TV, she has co-authored a book on cameras in the courtroom with former CBS News Correspondent David Dow. Professor Cohn has also published articles about criminal justice, international human rights, U.S. foreign policy and impeachment. She is editor of the National Lawyers Guild Practitioner and is on the Roster of Experts of the Institute for Public Accuracy. A criminal defense attorney at the trial and appellate levels for many years, Professor Cohn was also staff counsel to the California Agricultural Labor Relations Board. She has lectured at regional, national and international conferences, and was a legal observer in Iran on behalf of the International Association of Democratic Lawyers.

Professor Cohn is a graduate of Stanford University and the University of Santa Clara School of Law.