By Thomas R. Eddlem, Contributing Writer
The scene is a familiar one.
We see the establishment Republican senator from South Dakota railing against critics of the federal government’s “war on terror.” The critics, an odd coalition of liberal Democrats and arch-conservative Republicans, including some members of the Senate Judiciary Committee, charge that a great many detainees are innocent, had been apprehended without warrant, were not been given a trial, and are held unnecessarily in legal limbo for long periods of time.
Reciting a familiar argument, the Dakota solon insists that Americans shouldn’t quibble about the rights of foreigners during a time of war, especially when the administration’s policy has obviously worked: “Your committee cannot say but that the policy thus adopted and carried out was an effectual one. Subsequent events and conditions might very well indicate that it was effectual.”
Indeed, the senator can correctly point out that no terrorist incidents have taken place in the United States for nearly three years, since the September attack on lower Manhattan in New York City.
The debate we're witnessing took place not in the early years of the 21st Century, but rather in 1923. The stalwart defender of that era's homeland security state was Senator Thomas Nelson (R-S.D.), who pointed out that in the years 1918-1920 the United States had suffered a wave of more than 100 Bolshevik-inspired bombings across major cities of the United States.
Some of those attacks targeted Attorney General Alexander Mitchell Palmer (whose front porch was demolished by a Bolshevik bomb), Supreme Court justices and other judges, and prominent Wall Street bankers. This unprecedented terrorist campaign climaxed in that era's Black September atrocity: The September 16, 1920 explosion of a car bomb (a horse-drawn buggy packed with more than 100 pounds of dynamite) on Wall Street that killed 33 and wounded more than 300. Although much smaller in scale than 9-11, 9/16 was still at that time the worst terrorist incident of its kind in the nation’s history.
Nelson's ire was provoked by a draft committee report by liberal Democratic Senator Thomas J. Walsh of Montana that criticized the Justice Department’s Bureau of Investigation (The FBI predecessor headed at the time by the 24-year-old J. Edgar Hoover) for imprisoning some 10,000 detainees within the United States without trial, and in most cases, without the warrant required under federal law.
Walsh’s report won the support of an odd coalition that included the conservative “irreconcilable” Senator William Borah (R- Idaho), notable for his role in opposing the League of Nations; progressive Republican George Norris of Nebraska, an outspoken opponent of US entry into World War I; and the fickle fellow liberal Democrat Henry Fountain Ashurst of Arizona. Nelson submitted his own substitute report, but neither side won a majority on the Senate Judiciary Committee, and the committee failed to issue a report after months of hearings and political wrangling thereafter.
Walsh charged in his report: “In the more or less hysterical state of mind that prevailed when the raids were in progress and which to some extent still persists, it was popularly believed that all those taken were of that class – that they were all ‘red.’”
This prefigures the Bush administration's refrain – echoed tirelessly by its media minions – that those scooped up and detained at Guantanamo and Abu Ghraib were the “worst of the worst” and thus were not entitled to procedural rights of any kind. But those perceptions were – and are – mistaken.
On the surface, it would seem unlikely that the federal government would round up and imprison a large number of innocent people. Why wouldn’t all or most of them be guilty? What motivation would the government have to lock up the innocent?
The long experience of Anglo-American common law has demonstrated that without warrants, which require “probable cause” (a more than 50 percent chance a crime has been committed or will be committed by a person) and sworn statements, law enforcement and military officials typically round up anyone they think might be a terrorist. And that means they pick up a lot of people who are by definition “probably not” criminals.
Like any bureaucrat, police typically only hear complaints from their superiors when they accidentally let a criminal go. Outside of nations sharing the Anglo-Saxon common law heritage, police hardly ever get criticism from superiors for taking no chances that a criminal escapes, even if it means picking up innocent people in the dragnet.
Law enforcement and military authorities are taught to be “safe,” which doesn’t mean protecting the innocent who happen to be found in the proximity to the guilty. In many cases, as we will see, detainees at Guantanamo had been captured by opportunists seeking to collect bounties from occupation authorities – and the occupiers were more concerned with captive head counts than discriminating between genuine terrorists and innocent bystanders.
In 1919-20, as in the current “war on terror,” the inadequacy or absence of arrest warrants, coupled with the fact that the foreigners detained did not have habeas corpus or trial rights, left the innocent aliens in prison with the guilty for long periods of time.
In 1919-20, J. Edgar Hoover’s special agents rounded up everyone remotely connected with the communist meetings in progress.
In Detroit, Hoover’s men struck a blow for law and order by detaining everyone at an immigrant Russian baking school that communists were trying to organize into a communist-style cooperative -- even the restaurant’s patrons and members of a traveling orchestra who had been hired that evening to play for patrons.
Eight percent “success”
The overwhelming majority of those apprehended and detained in 1919-20 were innocent and released without charges or deportation. The original “war on terrorism” produced mass arrests of approximately 10,000 suspected communist terrorists, most of them coming during two dragnet-style “raids” November 1, 1919 and January 2, 1920 in 33 cities across the United States.
In all, not more than 810 of the 10,000 arrested in 1919-20 were ever deported or faced criminal charges. That’s a detention “success” rate of eight percent, which is hardly compatible with the “probable” cause requirement for arrest warrants specified by the U.S. Constitution.
The legal toll on the innocent in the original 1919-20 “war on terror” was onerous, as Walsh’s report documented:
*Ignatz Maritzka was detained for 88 days before being released. He was never charged nor deported.
*Sam Kot was detained for 90 days and never charged with a crime or deported.
*Ivan Dudinsky, who also was never charged or deported, developed tuberculosis during his 101 days of detention before his release.
*Wasil Lalajo had an initial hearing two days after his arrest on November 7, 1919, during which the two special agents reviewing his case strongly recommended his immediate release. But while they waited for permission from their bumbling superiors in the bureaucracy, Lalajo spent a total of 162 days in jail. During the more than five months he spent in legal limbo, later congressional hearings revealed, Lalajos's “wife and children were ... reported to be destitute and suffering.”
Granted, Hoover definitely got some communist bomb-throwers in the raids, but in the process he nearly ruined the lives of many innocents and their families. It is reasonable to say that many more innocent people were terrorized by the Hoover-supervised raids than by the terrorist bombings themselves. And the raids inflicted similar damage to our nation's constitutional system.
After describing the abuses of power committed in the raids – lack of warrants, lack of required specificity in warrants that were issued, lack of legal representation for detainees -- Walsh concluded: “Some vague notion seems to have prevailed that none of the constitutional gurantees of liberty are available to aliens in deportation proceedings.... Arrest without warrant appears to have been an innovation inaugurated by the Department of Justice.”
As the French say, Plus ça change, plus la même chose. Too many Americans today are hostage to the same delusion about the guilt of foreign detainees in our “war on terror.” And our rulers have done their best to propagate that delusion whenever an opportunity arises.
Speaking of the prisoners at Gitmo, Secretary of Defense Donald Rumsfeld told a radio interviewer on June 27, 2005 that “these are people all of whom were captured on a battlefield. They're terrorists, trainers, bomb makers, recruiters, financiers, [Osama bin Ladin’s] body guards, would-be suicide bombers, probably the 20th hijacker, 9/11 hijacker.”
That’s true only if by “all” one means only seven percent. According to a study by Seton Hall Law School Professor Mark Denbeaux, just seven percent of the more than 500 detainees who have been imprisoned at Guantanamo Bay were apprehended on a battlefield by U.S. or coalition forces. The rest were picked up by Pakistani or foreign government officials, or by bounty hunters promised vast sums of wealth for turning people in. Denbeaux relied exclusively upon intelligence released by the U.S. Defense Department for his statistical conclusions.
Eight percent again!
More importantly, Denbeaux found that only eight percent of those imprisoned at Guantanamo Bay were ever accused of being “fighters” for al Qaeda or the Taliban. That’s precisely the same rate as those charged or deported under the post-World War I “Red Scare” war on terror!
Like the “Red Scare,” the United States has released about half of the more than 500 people who have been detained at Guantanamo. And like the Red Scare, the Associated Press reported on December 16 most of those released by the U.S. government were freed without charges. The AP study found that 205 out of 245 Guantanamo detainees they were able to track were released into the custody of foreign governments and either freed immediately or acquitted of all charges at trial. The remaining 40 had trials ongoing or were detained without trial. Fewer than 20 of the approximately 300 prisoners currently at Guantanamo face charges in U.S. courts or military commission hearings right now.
Despite all the similarities between the “Red Scare” and the current “war on terror,” there are some important differences. The well-documented indignities and torture heaped upon current detainees by Bush Administration policy make the conditions experienced by detainees in 1920 look like four-star lodging. (And ironically enough, those outrages were cataloged by the FBI, the same agency responsible for the abuses committed in the first American “war on terror.”)
In both cases, most of the actual terrorists were immigrants. But while the federal government focused it’s dragnet in 1920 exclusively upon foreigners, that’s not the case today. The Bush Administration has rounded up innocent American citizens such as Donald Vance and is building an enormous database of telephone calls made by Americans. Moreover, the “red raids,” as they were called at the time, were designed to be temporary. President Bush has all but announced surveillance of American citizens – and the detention of some – will continue indefinitely, like the war on terror itself.
Clearly, it's time for Americans to rise up against the Bush Administration’s unconstitutional depredations. The facts have come out about the “war on terror” dragnet, which has destroyed our freedom in a way that no terrorist could ever accomplish.
Back in the days of the “Red Scare,” the New York World published an editorial that is probably the best retort to the claim that Americans must surrender their liberties for the duration of the war on terror. The August 6, 1921 editorial read: “It is only in such times that the guaranties of the Constitution as to personal rights are of any practical value. In seasons of calm no one thinks of denying them; they are accorded as a matter of course. It is rare except when the public mind is stirred by some overwhelming catastrophe or is aghast at some hideous crime or otherwise overwrought, that one is required to appeal to his constitutional rights. If, in such times, the Constitution is not a shield, the encomiums which states, man and jurists have paid it are fustian” -- which is to say, empty, bombastic, and hypocritical talk.
Then as now, fustian rhetoric was intended to serve as a smokescreen concealing a Faustian bargain in which Americans would sell their soul and heritage of liberty for deceptive promises of security.
Thomas R. Eddlem is a radio talk show host in Southeastern Massachusetts and freelance writer. He has been published in more than 20 periodicals, including The Providence Journal, LewRockwell.com and AntiWar.com
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