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Out of Balance

The USA Patriot Act and Ashcroft’s Justice Department

by Susan Herman The Jurist

The Jurist

Wars, Foreign and Domestic

Until Attorney General Ashcroft finally agreed to appear before Congress this week to report on the status of the domestic war against terrorism, rumors flew. Various reporters speculated about how many people were in detention, how many as material witnesses, and how many for immigration violations. There have been rumors about deplorable conditions, coercive tactics, and failure to report the detention of certain foreign nationals to their consulates. Formal Freedom of Information Act requests for information were denied.

Ashcroft has now provided some information about numbers of detainees, but not names, and not the quality of evidence in the individual cases. He has confirmed the rumor that some suspects, in New York, are being held under seal. He has also affirmed that the detentions are of people suspected of being terrorists, and that the detentions have prevented terrorist acts. At least one federal judge in New York, looking at the evidence in a particular case, ordered that one of the detainees be released on bail, given that the evidence against him tended to show not that he was a terrorist, but that he had lied to a grand jury. To expressions of doubt, or requests for additional information, Ashcroft reaffirms more loudly that he is detaining terrorists, that those detained would otherwise have committed terrorist acts, and that to share any more information than he has already shared with us or with Congress would aid Osama bin Laden in his anti-American campaign. The message is simple: we must stop asking questions and just trust the Department of Justice to do the right thing.

Being asked to have blind faith in the Attorney General is a difficult message for a child of the Vietnam Era. I am troubled by the fact that I know so little about the conduct of our domestic war against terrorism, for the same reason that I dislike knowing so little, except through government accounts, about the war in Afghanistan. It is difficult not to be able to judge what is being done in my name and with my tax dollars, and it is difficult not to be able to do what I understand to be my job as a citizen — to hold our elected officials accountable.

Partly because of the most recent spate of anti-terrorism legislation, two out of three branches of the federal government are also being left out of the loop in a growing number of circumstances. In its October USA Patriot Act [an eye-popping acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism"], as in its September Use of Military Force Authorization, Congress has been consistently funneling power to the President and his Executive branch subordinates, while minimizing its own role, as well as the role of the judiciary, in the decisions that are to be made about the conduct of our foreign as well as our domestic war. The depth and breadth of the delegation of war powers is apparent on the face of the September 18 enactment, authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . .” [Text available at the Library of Congress website, Under this authorization, could the President simply decide to extend the war from Afghanistan to Iraq, Saudi Arabia, or even Germany without any further input from Congress? If Congress does not maintain an active role (as it reserves some option to do under the War Powers Resolution), the judiciary is unlikely to intervene, and the voting public only knows what the government tells us, where is the check?

It is less obvious how the balance of power has been shifted in the domestic war against terrorism because the provisions of the enormous USA Patriot Act are only the tip of an iceberg of amended legislation. Most of its provisions amend previous law by adding or deleting words, paragraphs, or sections, forcing people reading the legislation to embark on an elaborate treasure hunt, tracking each amendment back to try to determine its impact on the previous law. In addition, it is difficult to comprehend the new changes if one is not already conversant with labyrinthine webs of law in many different areas.

Here are a few examples of how the new legislation continues to force feed power to the executive branch, while limiting the judiciary, and keeping Congress in the dark.

Surveillance Provisions

The thrust of the USA Patriot Act surveillance provisions is to provide federal agencies with more surveillance options, and less judicial supervision. The principal statute governing electronic surveillance in criminal investigations, Title III of the Crime Control and Safe Streets Act of 1968, tried to meet concerns the Supreme Court had expressed about the constitutionality of electronic surveillance under Fourth Amendment, by providing standards to limit the scope of surveillance and by providing a judicial check. Except in certain cases deemed emergencies, applicants must persuade a judicial officer that they have probable cause that the interception they seek may provide evidence of one of a number of listed offenses. The court order permitting surveillance, like the statute, will require investigators to submit to various forms of limitations and judicial supervision. Evidence intercepted in violation of Title III's central provisions, which include a requirement that intrusions into conversations be "minimized," is made inadmissible in judicial and other proceedings. Cases decided in response to defendants' motions to suppress evidence seized then flesh out the nature of judicial participation.

The Foreign Intelligence Surveillance Act of 1978 [FISA], on the other hand, was aimed not at gathering evidence for a criminal prosecution, but at gathering information about the activities of foreign persons and agents (as opposed to “U.S. persons”). Judicial involvement in deciding whether to issue orders permitting this type of surveillance is both covert and minimal. Instead of requiring probable cause, surveillance orders are issued on a certification by the Attorney General that has nothing to do with probable cause. Between 1996 and 2000, out of 4,275 applications for FISA warrants, 4,275 were granted. Because the point is to gather intelligence rather than evidence, challenges to the legality of surveillance aren’t likely to arise. The subjects may never even know that they have been under surveillance.

The USA Patriot Act allows surveillance of U.S. citizens under standards more like FISA than Title III, and allows powers permitted under Title III to be employed even where there is no probable cause and minimal judicial involvement, as in FISA. FISA warrants may now be used even if intelligence is not the primary purpose of an investigation. “Roving wiretaps” are a good example of how the powers under Title III have been extended. The Department of Justice argued to the public that revision of existing wiretap law was necessary to keep up with modern technology – to allow a roving wiretap that would allow a person’s conversations to be intercepted even if the person carried a cell phone, or moved from phone to phone. Why should an investigation be limited to wiretapping one particular telephone, the argument ran, when modern telephone users frequently have access to several phones? The authority to issue an order for a roving wiretap already existed under Title III, for investigations where probable cause has been demonstrated. (The Supreme Court has not yet decided whether this blanket permission to intercept a person’s conversations on any telephone is a refreshing modernization of an antiquated notion that a telephone is a physical place, or a violation of the Fourth Amendment’s requirement that any warrant describe the “place to be searched” with particularity.) 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 nation-wide. 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.

Most of the new surveillance powers granted will expire after four years pursuant to the statute’sunset provisions. Most of the powers are not confined to investigations concerning terrorism, but apply to any criminal investigations. If there is to be any check on the Attorney General’s use of these powers, it will have to come from congressional oversight. Will Congress be able to muster the political will to hold effective hearings, and to overcome the Bush Administration’s reluctance to share what it claims as executive prerogative?

Immigration

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.

Like the Anti-Terrorism and Effective Death Penalty Act of 1996, the Illegal Immigration Reform and Immigrants’ Responsibility Act of 1996 had sharply curtailed judicial review of the Attorney General’s actions in a variety of circumstances. Last term, the Supreme Court interpreted some of those provisions as allowing more judicial supervision than Congress probably intended, on the theory that the alternative interpretation might leave the provisions in question open to constitutional challenge. This year, Congress has resumed its campaign to enhance executive prerogative and minimize judicial review. The Supreme Court could, as it did last year, resist some of these instances of court-stripping. Are the Justices likely to throw themselves in front of this year’s train if Congress, the President, and we the people are not expressing any dissatisfaction, or was judicial supremacy just last year’s fashion?

The Executive Branch Additions

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.” [Article I, section 8, cl. 10]

Evidently, the powers conferred by the USA Patriot Act were just an appetizer.

Checks and Balances

Of course, I know the arguments in favor of granting the Attorney General and President the powers said to be necessary to keep us safe. Some of the more vocal members of Congress have been congratulating themselves for having struck an appropriate balance between our need for security and our need for civil liberties. But their balance was struck on the face of the legislation by confiding the critical decisions to the President, the Attorney General, and other Executive Branch officials. The avidity with which the Attorney General and President have shown themselves willing to make dramatic unilateral decisions does not reassure me about the existence of balance, or of checks. And how will we ever be able to evaluate whether or not the powers now wielded by the Executive Branch are, as the legislation asserts, “required” to combat terrorism? We may be selling our birthright for a mess of pottage.

My general level of trust in the government is conditioned on the existence of the Constitution’s elaborate structure of checks and balances: the hydraulic pressures among the three branches of the federal government, the dialectic of federalism, and the ultimate political power of an informed electorate. Now, there increasingly often seems to be only one locus of power. Increasingly often, the other two branches, the other axis of government (the states), and the electorate, including me, are asked not to know, but just to trust.

I have found myself thinking often lately about the world of George Orwell’s 1984, and not only because Orwell’s “Big Brother” has become such a pervasive metaphor for expansive governmental surveillance. The people in Orwell’s totalitarian state, Oceania (Orwell’s prescient amalgam of Britain and America?), knew that their state was engaged in a murky foreign war, against some enemy or other – either Eastasia or Eurasia. The war had become wallpaper, and there wasn’t much point in trying to understand what the war was about, or evaluating the government’s claims of victory. Information about the war was no more specific and no more reliable than the Newspeak about domestic affairs.

I don’t know whether we have lost our balance, but I do know that power is careening in one direction. That, combined with the extent of what I don’t know, is reason enough to worry

Susan Herman is a Professor at Brooklyn Law School, where she teaches Constitutional and Criminal Law.