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Au revoir freedom in America

Last updated on: November 28, 2006 20:36 IST
October marked the one-year anniversary of India's Right to Information Act of 2005, which is being hailed as arguably the one piece of legislation that Prime Minister Manmohan Singh's UPA Government will be remembered most for in history.

Meanwhile, October will also live forever in infamy as the month that the Bush Administration repealed habeas corpus and the Geneva Convention for non-citizens in one fell swoop in passing the Military Commissions Act of 2006.

Foreigners and permanent resident aliens residing in the US are well advised to remember the admonishment of former White House Press Secretary Ari Fleischer "... to watch what they say, watch what they do ..."

The two largest democracies in the world appear to be heading in opposite directions in many ways, and as someone who loves both very dearly, the prospects are exciting in one instance and profoundly depressing in the other.

Nine days after 9/11, President George W Bush delivered a speech to a Joint Session of Congress, in which he uttered the now famous words that "they hate our freedom... our freedom (to) disagree with each other... Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists."

Having been present at 9/11 and seen the carnage begin first hand, it was indeed a moving moment for me personally, as the country came together in the face of an enemy who clearly hated us enough to kill thousands of innocents.

Five years and a month later, President Bush signed the Military Commissions Act of 2006 which impugns the very freedom that he said was the reason that terrorists hated us. And the US rolled out the red carpet for leaders of nations who are our so-called allies in the war on terror, even as they support and arm the terrorists who attack and kill our soldiers in Afghanistan.

Satyameva Jayate (Truth alone triumphs) may be the national motto of India, but the US has clearly adopted 'Truthiness triumphs' as its mantra. We are now destroying freedom in the land of the free in the name of saving it.

'Truthiness' as popularisd by Stephen Colbert of The Colbert Report and the word is especially apt in describing what passes for truth in the US today. Colbert defined the word truthiness as 'What I say is right, and [nothing] anyone else says could possibly be true' in an interview with the AV Club which is owned by the satirical newspaper, The Onion.

Senator McCain, who suffered years of torture in Vietnam, could muster no more than token opposition to the official sanction of torture and incarceration of suspected alien combatants, relying solely on the 'truthiness' as determined by the executive branch at its sole discretion.

Lady Liberty may just as well extinguish her torch because habeas corpus has been repealed. This is a hallowed fundamental right which traces its origins back to the days of Magna Carta, which states that "... No Freeman shall be taken, or imprisoned, or be disseised of his ... Liberties ... but by lawful Judgment of his Peers, or by the Law of the Land."

Unfortunately for non-US citizens, the Military Commissions Act of 2006 states that no court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. And no person may invoke the Geneva Conventions or any protocols thereto as a source of rights in any court of the United States or its states or territories.

America used to be about men like Benjamin Franklin who believed that it is better that one hundred guilty persons should escape than that one innocent person should suffer. Under the new US law, the residents of Guantanamo will be tried in military courts where evidence obtained by coercion will be permissible with no oversight from civilian judges. And the law provides retroactive immunity for US military and intelligence officials for past abuses while allowing the President to define what constitutes torture, again without any congressional or judicial oversight. The government 'of the people, by the people, for the people' has given way to the imperial Presidency.

As Chris Gagné points out in his paper titled 'POTA: Lessons learned from India's Anti-Terror Act' in the Boston College Third World Law Journal, the US has been waging war on terrorists since 9/11, but India has been waging that war for over fifty years, and has learned a great deal from its successes and failures.

'India must continue to refine broad definitions of terrorist offenses and guard against arbitrary detentions motivated by politics, prejudice, or haste.' But he adds that 'India's lessons are America's lessons, too.'

India has been fighting terrorism without violating the core principles of habeas corpus and the rule of law. Suspected terrorists who are citizens of other nations still have the right to be tried in a civilian court in India, and Parliament has never legalised torture or repealed habeas corpus, even under the now-repealed Prevention of Terrorism Act (POTA).

Meanwhile, the US has abandoned its moral high ground amongst civilised nations by compromising the rule of law and the principle that even the most heinous criminal or terrorist deserves a day in court and a fair trial.

'Sunlight is said to be the best of disinfectants', said US Supreme Court Justice Brandeis. India's experiment with openness is flowering following the passage of the Right to Information Act. Arvind Kejriwal, a fellow IITian, and recipient of the Ramon Magsaysay Award for Emergent Leadership for 2006, was recently in the US for a series of public talks about fighting corruption in India.

The Magsaysay Award committee cited him for 'activating India's right-to-information movement at the grassroots, empowering New Delhi's poorest citizens to fight corruption by holding government answerable to the people.' He founded a citizens' movement named Parivartan that has been fighting for just, transparent and accountable governance in India.

In contrast to India's progress toward becoming a more open society, the US appears to be heading the other way. The US has historically been a leader in openness and transparency, and a model that many other countries have strived to emulate. It is therefore disheartening to see the Bush Administration's efforts to hide more and more information from the public eye in the name of security, presumably to 'protect our freedoms'.

The effort to withhold even seemingly innocuous information has led to the reclassification of previously public material. The New York Times reported that at the National Archives, intelligence agencies have been reclassifying thousands of historical documents that were previously published by the State Department and photocopied by private historians.

Which brings us to freedom and French fries. On March 11, 2003, the Honorable Rep Robert Ney of Ohio as Chairman of the Committee on House Administration ordered that French fries and French toast be renamed as freedom fries and freedom toast, to protest the French opposition to US policies in Iraq.

Three years later, the House of Representatives cafeteria has quietly returned to using the original names, and Rep Ney was convicted for taking bribes from lobbyist Jack Abramoff.

Au revoir freedom fries. And au revoir freedom in America.

Ram Kelkar is a Chicago-based investment professional and a Director of the IIT Bombay Heritage Fund.

Ram Kelkar