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December 4, 2001
Tariq Ali
The Afghan
King and the Nazis
November 30, 2001
Jordan
Green
Disappeared
in the Southland
Willliam Blum
Rebuilding
Afghanistan?
November 29, 2001
Phillip
Cryan
Defining
Terrorism
Robert Fisk
We Are the
War Criminals Now
November 28, 2001
Tom Turnipseed
A
Continuum of Terror
Patrick Cockburn
Tribal
Council:
Don't Blame It All on Taliban
Robert
Fisk
At
Last, The Truth about the Sabra and Chatila Massacres
Harry Browne
The Bill of
Rights:
They Threw It All Away
Sunil
Sharma
Suffer
Palestine's Children
November 27, 2001
Paul Coggins
Kafka and
the Patriot Act
Tariq
Ali
Tigris
and Euprhates
November 26, 2001
Robert Fisk
Blood and
Tears in Kandahar
Jeffrey
St. Clair
Boeing's
Sweet Deal
CounterPunch Wire
Human
Rights Abuses and
Nuke Waste Shipments
Alexander
Cockburn
Harry
Potter and Terrorism
November 25, 2001
Ralph Nader
The Crisis
in Leadership
Sam Bahour
Israel's
Choice
November 24, 2001
Patrick Cockburn
He Who
Has
the Guns Rules
November 23, 2001
Phyllis
Pollack
Long
Live The Clash
Cockburn/St. Clair
The Press
and
the Patriot Act
November 22, 2001
Oscar
Gonzalez
A
Homeland Thanksgiving
November 21, 2001
CounterPunch Wire
Rep. Chambliss
Calls for Arrest of Every Muslim That Enters Georgia
Tom Turnipseed
Broadcasting
and Bombing
David Price
Academia Under
Attack
Molly
Secours
Modern
Day Witch Trials
Tariq Ali
Killing
Mr. Biswas
November 20, 2001
Sam Bahour
Plain
Truths About Palestine
Michael Ratner
Moving Toward
a
Police State
A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
November 19, 2001
Edward
Said
Suicidal
Ignorance
November 18, 2001
John Farley
Shame on You,
Chelsea!
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bin Laden and Bush
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The New Intifada:
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December 4,
2001
Out of
Balance
The USA Patriot Act and
Ashcroft's Justice Department
By Susan Herman
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.
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