“Danger, Will Robinson!”
For those who don’t remember the Robot in the 1960’s television series, “Lost in Space,” he was friends with the youngest member of the outer space Swiss Family Robinson and he regularly warned the young man whenever there was any incipient danger.
Too bad we don’t have a robot friend who can tell us what the dangers to democracy are today.
One of those dangers in America is the emergence of parallel legal systems.
In short, these systems are:
(1) the federal and state civil court systems, (2) the Foreign Intelligence Surveillance Act (FISA) court system, and (3) the immigration court system.
(There are also two military court systems: military courts martial for trying military personnel and the new military commission system, for trying so-called “unlawful enemy combatants.” There is also now a status determination tribunal system which was established after a federal district court found the government was violating the Geneva Conventions by failing to provide hearings to determine the status of detainees. This article discusses only the first three systems. The military court systems will be discussed in a subsequent article.)
The Civil Court System
The federal and state civil court systems are the one most of us know. These so-called “civil courts” are where both civil and criminal cases are tried. The reason these are called the civil courts, although criminal cases are also tried in them, is because they deal with civil, not military society, and they operate when civil government is functioning. (In fact, the Supreme Court long ago declared that as long as civil government is functioning and the civil courts are open, military courts may not usurp the civil courts function to try civilians.)
The civil court systems have increasingly been under attack by right wing critics of “judicial activism,” who claim that activist judges are a danger to the Constitution. But these are the courts where individual constitutional rights are upheld: the right to freedom of speech and the press, the right to peaceably assemble and to petition the government for redress of grievances, the right to a trial by an impartial jury in a criminal case and to be informed of the nature and cause of the accusation, the right to counsel, the right not to be compelled in a criminal case to be a witness against himself, nor to be deprived of life, liberty, or property without due process of law, the right to speedy and public trial, the right to be secure in our persons, houses, papers, and effects against unreasonable searches and seizures, and so on.
In criminal cases, the civil courts are where the standard “innocent until proven guilty” is found. It is where a jury must find “guilt beyond a reasonable doubt” in order to deprive someone of his or her liberty or life. And it is where the standard of “probable cause of criminal activity” must be applied by law enforcement in order for a warrant to be issued and considerable admissible in evidence against a suspect.
These are, of course, standards that are used in criminal prosecutions. In civil cases, differing standards apply because they do not involve incursions into the security of our persons, homes, papers, and effects or potential deprivation of our lives or liberty. For example, “preponderance of the evidence” must be found to incur money damages for wrongful death, and “clear and convincing evidence” must be found to terminate a natural parent’s custody of a child.
The dividing line between criminal and civil standards has withstood more than two centuries of use, but that line is now being undermined by the intrusion of legal standards from parallel legal systems, most particularly the immigration court system and the FISA system.
The Immigration Court System (Executive Branch)
Immigration courts can deprive an individual of his liberty and expel him from the country. The USA PATRIOT Act expanded the government’s ability to indefinitely detain a foreign individual. Prior to 9/11, a non-citizen could only be detained if he were a danger to the community or, sometimes, if he were a flight risk. Now, an immigrant can be detained, essentially forever, for nothing more than a minor visa violation. Even where the individual accepts deportation, the government may continue to indefinitely detain him. In other words, he can be permanently deprived of his liberty without probable cause of criminal activity and without proof of guilt of a crime.
Immigration courts, housed in the executive (not the judicial) branch of the government, do not apply the same legal standards as are applied in federal criminal cases, because they decide issues of asylum and deportation. However, the immigration system is where the definitions of terrorism, terrorist activity, and foreign terrorist organizations are found.
It is important to remember that the U.S. Constitution is not a document that applies only to a select few. It is not an elitist document. It does apply only to those with Caucasian blood or Christian religion. It does not apply only to citizens. The U.S. Constitution followed closely on the principles of the Declaration of Independence, which stated that “we find these truths to be self-evident, that ALL men are created equal.” The Constitution was really one of the first (following the Magna Carta) international human rights instruments.
The Foreign Intelligence Surveillance Act (FISA) Court System
The FISA standards, although they were originally enacted to provide controls on the executive branch engaging in surveillance of foreign powers and agents of foreign powers, undermine constitutional protections and endanger democracy. Prior to FISA, the executive branch freely spied on the offices and agents of foreign powers who were in our country. FISA, passed by Congress in 1978, set standards for foreign intelligence warrants.
Under FISA, the FBI does not have to show that there is probable cause of criminal activity in order to obtain a warrant to search or surveil a target. It only has to show probable cause that the target is a foreign power or an agent of a foreign power. (By definition, therefore, foreign powers and their agents are criminals.) The target has to be the subject of an ongoing foreign intelligence investigation, or “relevant” to such an investigation.
Prior to the PATRIOT Act, in order for evidence obtained from a FISA warrant to be used in a criminal prosecution, foreign intelligence (as opposed to criminal activity) had to be “the purpose” of the original FBI investigation. Thus, probable cause of criminal activity has never been required to use FISA evidence in a criminal case. The main protection was merely that the warrant was issued primarily or completely for foreign intelligence purposes. In other words, if you had a valid reason to spy on your neighbors while they were visiting, and the main reason you were spying was in order to spy, not to find out if they were committing a crime, and you thereby just happened to get evidence of criminal activity, it was admissible in a criminal case.
The PATRIOT Act changed this standard. No longer did foreign intelligence have to be “the purpose” of the investigation; it had only to be a “significant purpose.” In other words, now, even if the government is conducting a criminal investigation, as long as there is some foreign intelligence purpose in the investigation, evidence obtained thereby, without probable cause of criminal activity, may be used against you in a criminal prosecution.
What happened to the Fourth Amendment protection against unreasonable searches and seizures?
All this may not seem to be a matter of concern to law-abiding citizens until you study the material support provisions of the PATRIOT Act. Recent amendments to these provisions improved them significantly, adding a knowledge requirement. However, this provision still allows conviction of a person who merely has knowledge that the organization they are accused of supporting “is a designated organization.”
It goes without saying that the mixing of these parallel legal systems has caused dilutions of the constitutional protections Americans have long held sacred. One former prosecutor has even proposed creating special courts for trying terrorist cases. These courts would apply special standards just for terrorists. Presumably one knows a terrorist when one sees him, so that if we violate his human rights, it won’t really matter that much, since us blue-blooded citizens will still remain privileged to enjoy the human rights we think only apply to American humans who do not happen to look like what we think terrorists look like.
JENNIFER VAN BERGEN, J.D., is the author of The Twilight of Democracy: The Bush Plan for America (Common Courage Press, 2004). She has written and spoken extensively on civil liberties, human rights, and international law. She may be contacted at firstname.lastname@example.org.