The Guardian May 21, 2003


Are we afraid to call this Fascism?

by Jason Halperin

"A patriot must always be ready to defend his country against his 
government."                        Edward Abbey

Two weeks ago I experienced a very small taste of what hundreds of South 
Asian immigrants and US citizens of South Asian descent have gone through 
since 9/11, and what thousands of others have come to fear. I was held, 
against my will and without warrant or cause, under the USA PATRIOT Act.

While I understand the need for some measure of security and precaution in 
times such as these, the manner in which this detention and interrogation 
took place raises serious questions about police tactics and the 
safeguarding of civil liberties in times of war.

That night, March 20, my roommate Asher and I were on our way to see the 
Broadway show Rent. We had an hour to spare before curtain time so we 
stopped into an Indian restaurant just off of Times Square in the heart of 
midtown. I have omitted the name of the restaurant so as not to subject the 
owners to any further harassment or humiliation.

We helped ourselves to the buffet and then sat down to begin eating our 
dinner. I was just about to tell Asher how I'd eaten there before and how 
delicious the vegetable curry was, but I never got a chance. All of a 
sudden, there was a terrible commotion and five members of the New York 
Police Department in bullet-proof vests stormed down the stairs. They had 
their guns drawn and were pointing them indiscriminately at the restaurant 
staff and at us.

"Go to the back, go to the back of the restaurant," they yelled.

I hesitated, lost in my own panic.

"Did you not hear me, go to the back and sit down," they demanded.

I complied and looked around at the other patrons. There were eight men 
including the waiter, all of South Asian descent and ranging in age from 
late-teens to senior citizen. One of the policemen pointed his gun point-
blank in the face of the waiter and shouted: "Is there anyone else in the 
restaurant?" The waiter, terrified, gestured to the kitchen.

The police placed their fingers on the triggers of their guns and kicked 
open the kitchen doors. Shouts emanated from the kitchen and a few seconds 
later five Hispanic men were made to crawl out on their hands and knees, 
guns pointed at them.

After patting us all down, the five officers seated us at two tables. As 
they continued to kick open doors to closets and bathrooms with their 
fingers glued to their triggers, no less than ten officers in suits emerged 
from the stairwell. Most of them sat in the back of the restaurant typing 
on their laptop computers. Two of them walked over to our table and 
identified themselves as officers of the INS [US Immigration and 
Naturalization Service  Department of Justice] and Homeland Security 
Department.

I explained that we were just eating dinner and asked why we were being 
held. We were told by the INS agent that we would be released once they had 
confirmation that we had no outstanding warrants and our immigration status 
was OK'd.

In pre-9/11 America, the legality of this would have been questionable. 
After all, the Fourth Amendment to the Constitution states: "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."

"You have no right to hold us", Asher insisted.

"Yes, we have every right", responded one of the agents. "You are being 
held under the Patriot Act following suspicion under an internal Homeland 
Security investigation."

The USA PATRIOT Act was passed into law on October 26, 2001, in order to 
facilitate the post 9/11 crackdown on terrorism (the name is actually an 
acronym: "Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism Act.")

Like most Americans, I did not recognise the extent to which this bill 
foregoes our civil liberties. Among the unprecedented rights it grants to 
the federal government are the right to wiretap without warrant, and the 
right to detain without warrant. As I quickly discovered, the right to an 
attorney has been seemingly fudged as well.

When I asked to speak to a lawyer, the INS official informed me that I do 
have the right to a lawyer but I would have to be brought down to the 
station and await security clearance before being granted one. When I asked 
how long that would take, he replied with a coy smile: "Maybe a day, maybe 
a week, maybe a month."

We insisted that we had every right to leave and were going to do so. One 
of the policemen walked over with his hand on his gun and taunted: "Go 
ahead and leave, just go ahead."

We remained seated. Our IDs were taken, and brought to the officers with 
laptops. I was questioned over the fact that my license was out of state, 
and asked if I had "something to hide.

"The police continued to hassle the kitchen workers, demanding licences and 
dates of birth. One of the kitchen workers was shaking hysterically and 
kept providing the day's date "March 20, 2003", over and over.

As I continued to press for legal counsel, a female officer who had been 
busy typing on her laptop in the front of the restaurant, walked over and 
put her finger in my face. "We are at war, we are at war and this is for 
your safety", she exclaimed. As she walked away from the table, she 
continued to repeat it to herself, "We are at war, we are at war. How can 
they not understand this."

I most certainly understand that we are at war. I also understand that the 
freedoms afforded to all of us in the Constitution were meant specifically 
for times like these. Our freedoms were carved out during times of strife 
by people who were facing brutal injustices, and were intended specifically 
so that this nation would behave differently in such times. If our freedoms 
crumble exactly when they are needed most, then they were really never 
freedoms at all.

After an hour and a half the INS agent walked back over and handed Asher 
and me our licences. A policeman took us by the arm and escorted us out of 
the building.

Before stepping out to the street, the INS agent apologised. He explained, 
in a low voice, that they did not think the two of us were in the 
restaurant. Several of the other patrons, though of South Asian descent, 
were in fact US citizens.

There were four taxi drivers, two students, one newspaper salesman , all 
unwitting customers, just like Asher and me. I doubt, though, they received 
any apologies from the INS or the Department of Homeland Security.

Nor have the over 600 people of South Asian descent currently being held 
without charge by the Federal Government. Apparently, this type of 
treatment is acceptable. One of the taxi drivers, a US citizen, spoke to me 
during the interrogation. "Please stop talking to them", he urged. "I have 
been through this before. Please do whatever they say. Please for our 
sake."

Three days later I phoned the restaurant to discover what happened. The 
owner was nervous and embarrassed and obviously did not want to talk about 
it. But I managed to ascertain that the whole thing had been one giant 
mistake. A mistake. Loaded guns pointed in faces, people made to crawl on 
their hands and knees, police officers clearly exacerbating a tense 
situation by kicking in doors, taunting, keeping their fingers on the 
trigger even after the situation was under control. A mistake. And, 
according to the ACLU [American Civil Liberties Union], a perfectly legal 
one, thanks to the Patriot Act.

The Patriot Act is just the first phase of the erosion of the Fourth 
Amendment. From the Justice Department has emerged a draft of the Domestic 
Securities Enhancement Act, also known as Patriot II.

Among other things, this act would allow the Justice Department to detain 
anyone, anytime, secretly and indefinitely. It would also make it a crime 
to reveal the identity or even existence of such a detainee.

Every American citizen, whether they support the current war or not, should 
be alarmed by the speed and facility with which these changes to our 
fundamental rights are taking place.

And all of those who thought that these laws would never affect them, who 
thought that the Patriot Act only applied to the guilty, should heed this 
story as a wake-up call. Please learn from my experience. We are all 
vulnerable so speak out and organise, our Fourth Amendment rights depend 
upon it.

* * *
Jason Halperin lives in New York City and works at Doctors Without Borders/Medicins San Frontieres.

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