It is not my practice to defend the Chicago Police Department, as usually I am a critic. But the hyperbolic news coverage of the Homan Square police facility compels me to speak out. Not to trivialize the problems inherent in the CPD’s hiding of detainees — a longstanding practice hardly limited to Homan Square — but to equate it with the CIA’s black sites and its extraordinary rendition program and enhanced interrogation techniques deprecates the seriousness of that scandal, as much as it diverts needed public debate on the CPD’s ruses to keep lawyers from clients as long as possible.
Homan Square is hardly a black site by any stretch of the imagination, and I can speak with some authority on the topic. I represented Jared Chase in Cook County State’s Attorney Anita Alvarez’s shameful NATO 3 “terrorism” trial fiasco. Chase was held at Homan Square for the same 17 hours noted in the Guardian U.K. report that has now gone viral around the world. I also represented Ramzi Bin al-Shibh — one of the five accused 9/11 conspiracy plotters in the first military commissions at the Guantanamo Bay detention center, and I was granted access to Bin al-Shibh’s classified medical records from his detention at the CIA black sites. While I am precluded from discussing what I saw in those records, even a quick skim of the recently released Senate Intelligence Committee study of the CIA’s Detention and Interrogation Program makes clear that nothing of the sort transpired at Homan Square. It is like comparing an apple to a watermelon.
However, there are systemic issues that do support an important, but subtly different, analogy between Homan Square and CIA black sites. The fact is that we have blindly permitted our law enforcement agencies, both local and national, to become intelligence-gathering apparatuses. The merging of these two functions in response to 9/11 is creating more unintended consequences than we may think — Homan Square and its secretiveness being just one example. But this spy agency secretiveness did not begin with the War on Terror. A 30-year trail blazed by the War on Drugs provided a good road map and did extraordinary damage to civil liberties. The same war rhetoric, intelligence gathering, electronic surveillance, secretiveness and procedural constitutional shortcuts, both at home and abroad, have morphed into our endless War on Terror — with far greater permanent damage to civil liberties.
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We now have one set of procedural due process rights for regular federal criminal prosecutions, and another for those involving national security cases. The mere mention of “national security” causes most federal judges to defer automatically to the executive branch, regardless of the proliferation of executive branch abuses being leaked to the public. Against this backdrop it is hardly a surprise that the Chicago Police might have thought they, too, could bend the rules a bit when they arrested State’s Attorney Alvarez’ first terrorism suspects in Mayor Rahm Emanuel’s conversion of Chicago into a police state during the 2012 NATO weekend. After all, the CPD’s Intelligence Division thought my slacker client and his friends were terrorists. It took a jury later to settle that score, acquitting the defendants of trumped-up terrorism charges in about 45 minutes of deliberations.
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But make no mistake about it. The NATO 3 were not tortured, nor does Homan Square come close to the CIA’s unconscionable black site practices. Trivializing that scandal to something like Homan Square only creates a distraction from the real problem — that we continue to blindly surrender our civil liberties in exchange for the devil’s choice of freedom from fear. While this should not provide a pass for the CPD on Homan Square and its own questionable detention policies, more thoughtful concern should be given to the imprudent choice of turning our local police, the FBI and other federal law enforcement agencies into intelligence apparatuses. Getting the “bad guys” before they get us should not continue to be the ruse to turn our criminal justice system on its head.
Thomas A. Durkin is a Chicago criminal defense attorney and co-director of the Loyola University Chicago School of Law’s National Security & Civil Rights Program.