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US on Hong Kong: Calling the kettle black
By Henry C K Liu
A clear
manifestation of US exceptionism is a December 27
editorial in the New York Times deploring "Hong Kong's
current drive to enact insidious security legislation
that threatens its people's freedoms".
On
October 26, 2001, President George W Bush signed into
law the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism Act, better known by its acronym, USA Patriot
Act (USAPA), which grants sweeping new police and
surveillance powers to both domestic law-enforcement and
global intelligence agencies. The insidiousness of this
legislation lies in the elimination of the
constitutional checks and balances that previously gave
US courts the opportunity to ensure that such powers
were not abused by the executive branch. Most of these
checks and balances were put into place after previous
misuse of police and surveillance powers by these
agencies, including the revelation in 1974 that the
Federal Bureau of Investigation (FBI) and foreign
intelligence agencies had spied on more than 10,000 US
citizens, including the late civil-rights leader Martin
Luther King.
Bush was reported to have recently
telephoned Chinese President Jiang Zemin to express
concern about the proposed national-security law in Hong
Kong. It would be proper for Jiang to express reciprocal
concern for the USAPA's effect on US freedom and civil
rights, as many US citizens and organizations, including
the American Civil Liberties Union (ACLU), have been
vocal in their concerns for and opposition to that law.
Ted Galen Carpenter, vice president for defense
and foreign policy at the conservative Cato Institute,
wrote in June in an article titled "Protecting Liberty
in a Permanent War": "In short, America is now waging a
permanent war (on terrorism). That reality makes
civil-liberties considerations even more important than
in previous conflicts. Whatever constitutional rights
are taken from us (or that we choose to relinquish) will
not be restored after a few years. In all likelihood,
they will be gone forever.
"We therefore need to
ask whether we want to give not only the current
president but also his unknown successors in the decades
to come the awesome power that President Bush has
claimed. It is chilling to realize that the president is
insisting that all he must do is invoke the magical
incantation 'enemy combatant' and an American citizen
can be stripped of his most fundamental constitutional
rights without any meaningful scrutiny by the judicial
branch. A place where that is possible is not the
America we have known. It is not an America that we
should want to know."
Section 326 of the USAPA
calls for the following from all financial institutions:
(1) Verifying the identity of any person seeking to
open an account, to the extent reasonable and
practicable.
(2) Maintaining records of the
information used to verify the person's identity,
including name, address, and other identifying
information.
(3) Determining whether the person
appears on any lists of known or suspected terrorists or
terrorist organizations provided to the financial
institution by any government agency.
In plain
English, this means:
All financial institutions must have a policy
(customer identification program) detailing its identity
verification program.
All new accounts need to be screened against the
Office of Foreign Asset Control (OFAC) and other
published lists of suspected terrorists and terrorist
organizations.
Any documents used to identify the new account
holder, such as driver's license, passport, social
security card, etc, need to be verified against a
third-party database to determine that the identity is
valid to the extent reasonable and practicable.
A database of all accounts needs to be maintained
that includes the account name, date of account opening,
identifying information presented, and the items used to
verify the identity. This information needs to be time
and date stamped and maintained for five years following
the closure of the account.
The long arm of the
USAPA extends beyond US borders, Hong Kong being one of
the non-US locations agreeing to its compliance, which
promises to pose a more serious threat to the status of
Hong Kong as an international finance center than the
proposed Hong Kong security law.
As for the New
York Times' contention that the Hong Kong Special
Administrative Region (SAR) government is rushing the
proposed security law through "in short order", it is
interesting to note that the Times' editors seemed quite
comfortable with the USAPA, 342 pages long, making
changes to more than 15 different existing statutes, a
large and complex law that had more than four different
names and several versions in the five weeks between its
introduction and its final passage into law. A vast
majority of the sections of the USAPA had not been
carefully studied by Congress, nor was sufficient time
taken for debate or to hear testimony from experts
outside of law enforcement in fields where the law makes
major changes, such as immigration. Key procedural
processes applicable to any other proposed laws,
including inter-agency review, and the normal committee
and hearing processes were suspended for this bill.
Many civic organizations, such as the Electronic
Frontier Foundation (EFF), the Center for Constitutional
Rights, the ACLU, the Cato Institute, and others
spanning the entire ideological spectrum have taken the
position that the civil liberties of ordinary Americans
have taken a tremendous blow with this law, especially
the right to privacy in online communications and
activities and in financial matters.
The EFF
issued a statement that read in part: "In asking for
these broad new powers, the government made no showing
that the previous powers of law enforcement and
intelligence agencies to spy on US citizens were
insufficient to allow them to investigate and prosecute
acts of terrorism. The process leading to the passage of
the bill did little to ease these concerns. To the
contrary, they are amplified by the inclusion of so many
provisions that, instead of aiming at terrorism, are
aimed at non-violent, domestic computer activities not
to the government's liking. In addition, although many
of the provisions facially appear aimed at terrorism,
the government made no showing that the reasons it
failed to detect the planning of the recent attacks, or
any other terrorist attacks, were linked to the civil
liberties compromised with the passage of USAPA."
Nancy Chang, senior litigation lawyer at the
Center for Constitutional Rights, wrote: "The USAPA
stands out as radical in its design. To an unprecedented
degree, the act sacrifices our political freedoms in the
name of national security and upsets the democratic
values that define our nation by consolidating vast new
powers in the executive branch of government. The act
enhances the executive's ability to conduct surveillance
and gather intelligence, places an array of new tools at
the disposal of the prosecution, including new crimes,
enhanced penalties, and longer statutes of limitations,
and grants the Immigration and Naturalization Service
(INS) the authority to detain immigrants suspected of
terrorism for lengthy, and in some cases indefinite,
periods of time. And at the same time that the act
inflates the powers of the executive, it insulates the
exercise of these powers from meaningful judicial and
congressional oversight.
"It remains to be seen
how the executive will wield its new authority. However,
if the two months that have elapsed since September 11
[2001] serve as a guide, we should brace ourselves for a
flagrant disregard of the rule of law by those charged
with its enforcement. Already, the Department of Justice
has admitted to detaining more than 1,100 immigrants,
not one of whom has been charged with committing a
terrorist act and only a handful of whom are being held
as material witnesses to the September 11 hijackings.
Many in this group appear to have been held for extended
time periods under an extraordinary interim regulation
announced by Attorney General John Ashcroft on September
17 and published in Federal Register on September
20. This regulation sets aside the strictures of due
process by permitting the INS to detain aliens without
charge for 48 hours or an uncapped 'additional
reasonable period of time' in the event of an 'emergency
or other extraordinary circumstance'. Also, many in this
group are being held without bond under the pretext of
unrelated criminal charges or minor immigration
violations, in a modern-day form of preventive
detention.
"Chillingly, the attorney general's
response to the passage of the USA PATRIOT Act was not a
pledge to use his new powers responsibly and guard
against their abuse, but instead was a vow to step up
his detention efforts. Conflating immigrant status with
terrorist status, he declared: 'Let the terrorists among
us be warned, if you overstay your visas even by one
day, we will arrest you.'"
There were press
reports last weekend that four foreign students were
detained for 48 hours for violating visa requirements by
failing to carry the minimum required credit hours.
Susan Herman, professor of constitutional and
criminal law at Brooklyn Law School, wrote: "The USA
Patriot Act extends the roving wiretap authority to
intelligence wiretaps, which are authorized secretly and
are not based on probable cause. The authorization may
be nationwide. Once additional telephones that a target
uses (perhaps in someone else's home) are being
monitored, other users of that telephone will also be
subject to continuing surveillance.
"Authority
already existed for the government to order a telephone
company to turn over a list of the numbers being dialed
to and from a particular telephone, on a standard less
than probable cause. If the government certifies that
the information sought is 'relevant to an ongoing
criminal investigation', a judge 'must' grant the order,
regardless of whether or not the judge agrees with the
government's conclusion, and even if the judge thinks
the government is fishing. This ample authority, on the
same unexamined certification, is now extended to trap
and trace orders providing access to 'dialing, routing
and signaling information' in connection with computers.
These terms are not defined (and are certainly not clear
to a technologically challenged person like me), but
seem to allow the government access to lists of e-mails
sent and received, as well as a list of the websites
visited on a particular computer. In the telephone
context, getting a 'pen register', with its list of
telephone numbers to and from which calls were made on a
particular phone, offered no opportunity to hear the
contents of those conversations. In the computer
context, the information about e-mail addresses and
websites evidently travels with its content. The
Department of Justice promises to separate the two, and
not pry into content. There seems to be no way of
supervising whether this promise is kept. In addition,
it seems that if a target uses a computer in a cyber
cafe or the public library to check e-mail or visit a
website, surveillance of that computer may simply
continue, giving the government access to the e-mail and
Internet activities of a multitude of non-targets.
"The USA Patriot Act also further increases the
authority of the attorney general to detain and deport
non-citizens with little or no judicial review. The
attorney general may certify that he has 'reasonable
grounds to believe' that a non-citizen endangers
national security. The attorney general and secretary of
state are also given the authority to designate domestic
groups as terrorist organizations, and deport any
non-citizen who belongs to them.
"In addition to
collecting the various powers described above, the
attorney general announced that he intends to eavesdrop
on inmates' attorney-client conversations. He also
announced plans to have state and local law-enforcement
officials cooperate in questioning 5,000 people, who
appear to have been selected according to their
ethnicity or religion. He acted to expand his power to
detain immigrants, and to contract the information
available under the Freedom of Information Act.
"The president issued an Executive Order
declaring that he will decide when trials will take
place before military commissions rather than in
civilian courts, under his commander-in-chief powers.
This decision cuts out the Article III courts, as well
as Congress, which has constitutional authority to
define and punish 'Piracies and Felonies committed on
the high Seas, and Offenses against the Law of
Nations'."
Compared with the broad shotgun
approach of the USAPA, the proposed security law for
Hong Kong, in accordance with Article 23 of the Basic
Law (the SAR's mini-constitution), is a precision rifle
aimed at prohibiting "any act of treason, secession,
sedition, subversion against the Central People's
Government, or theft of state secrets, to prohibit
political organizations or bodies of the Region from
establishing ties with foreign political organization or
bodies".
If the United States is really
interested in freedom in Hong Kong, it should realize
that the best way to promote freedom is to cease and
desist its overt hostility to China's legitimate right
to fulfill its destiny as a re-emerging power, to stop
trying to interfere in China's internal affairs, and to
abandon its self-appointed mandate to change Chinese
society to its liking.
It is US support for
anti-China secessionist movements, for the Democratic
Party in Hong Kong that has been coached by the staff of
the anti-China Project for the New American Century
(PNAC) based in Washington, for infiltration of
legitimate news organizations, academic and research
institutions and commercial enterprises with
intelligence agents, for illegal purchases of Chinese
state secrets, that constitutes in large measure the
rationale and need for a national-security law in Hong
Kong, which like all security laws commands an
inevitable trade-off on civil liberty. Yet, as a Chinese
high official said: those who are innocent of
anti-China, treasonous activities need have no concern
for the proposed security law, which, together with
other articles of the Basic Law, adds up to a more
liberal regime than when Hong Kong was under British
colonial rule, on which the New York Times had very
little complaint because British colonialism was
anti-communist.
Freedom, after all, seems to
have more than one meaning to US moral imperialism: US
national-security concerns are justified, and the
security concerns of other nations are political
oppression.
Henry C K Liu is chairman
of the New York-based Liu Investment Group.
(©2003 Asia Times Online Co, Ltd. All rights
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