|
January
24, 2002
Alexander
Cockburn
This
is Terrorism?
David
Vest
Idiot
Wind
January
23, 2002
Terry
Waite
Guantanamo
Prisoners:
Justice or Revenge?
Molly
Secours
The
Case of Abu-Ali:
Racism and the Death Penalty
Robert
Jensen
Speak
Out, Get Slimed
January
22, 2002
Brendan
Cooney
Moby-Dick
and the Hunt
for Osama bin Laden
Rick Giombetti
Progressive
Pols for Enron?
Judith
Resnik
Invading
the Courts?
Kevin
Alexander Gray
The
Crisis in Black Leadership
January
21, 2002
Marjorie
Cohn
Will
Walker's Words
Be Used Against Him?
Ahmad
Faruqui
MLK
Jr. and the Palestinians
January
19. 2002
Jordan
Green
Enron
Stole Our Future
January
18, 2002
Tom Turnipseed
The
Enron Model
Walt Brasch
Enron
at the White House
CounterPunch
Wire
Human
Rights Groups Says Guantanamo Prisoners Must
Be Treated as POWs
January
17, 2002
Gideon
Levy
Bulldozing
Rafah
Uri Avnery
That
Weapons Shipment
January
16, 2002
John Chuckman
The
Angel and the Pretzel
Lawrence
McGuire
Subverting
the
Geneva Convention
Kathy
Kelly
An
Open Letter to
Richard Perle on Iraq
January
15, 2002
George
Monbiot
Greenpeace,
Lord Melchett
and the Business of Betrayal
Jack McCarthy
Follow
the Pretzel
William
Blum
Atta
and the Times:
Follow the Changing Story
Edward
Said
Emerging
Alternatives
in Palestine
January
14, 2002
David
Vest
Open
Bag. Eat Pretzels.
Patrick
Cockburn
Collapse
of Georgia
Ignored by the World
Mokhiber/Weissman
Enron's
Accountants:
When In Doubt, Shred It
January
13, 2002
C.G. Estabrook
Why
We Kill People
January
12, 2002
Cockburn/St.
Clair
Forbidden
Truths
January
11, 2002
Lee Balllinger/Dave
Marsh
Neil
Young's Duet with Ashcroft
January
10, 2002
Tom Turnipseed
Bush,
Enron, UNOCAL
and the Taliban
St. Clair/Cockburn
Greenpeace
to Greenwash?
Hans von
Sponek
Iraq:
Is There an Alternative
to Military Action?
Jim Lobe
Israeli
Human Rights Group Assails Army
Marina Mayakova
Russia's
Top Military Astrologer Predicts More Attacks from OBL
January
9, 2002
David
Vest
The
Super-Burqa
and the Big Tent
ND Jayaprakash
Winnable
Nuclear War?
Rafiq
Kathwari
Kashmir
Will Make Ground Zero Look Like a Bonfire
January
8, 2002
Prudence
Crowther
Sting
Like a B-52
Nelson
Valdés
Al-Qaeda
at Guantanamo Bay
John Chuckman
Dark
Tales from the
Ministry of Truth
Richard
Corn-Revere
Do
We Fear Freedom?
Joan Hoff
The
Nixon You Haven't Heard
January
7, 2002
Lawrence
McGuire
Confusing
Economic Tales About Argentina
Wael Masri
They
Are Taking
Our Rights Away
Philip
Farruggio
Better
Medicine
A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
Resources:
100s of Links
About 9/11
CounterPunch:
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Coverage of 9/11 and Its Aftermath
Five
Days That
Shook The World:
Seattle and Beyond
By Alexander
Cockburn
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War Diary
CIA's Assassination Plan a History of
Torture in US Prisons
bin Laden and Bush
Business Connections
Aisha Ikramuddin on the Hidden Hype
of US Food Bombs
Peter Linebaugh on
Pakistan
Christopher Hitchens' Love for Mrs. Thatcher
Jiang Zemin Tells Bush:
Nuke 'Em
Search
CounterPunch
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How the CIA's Backing of the Mujahideen Created the World's Most
Robust Heroin Market and Helped to Finance the Rise of the Taliban
and Osama bin Laden
Whiteout:
CIA, Drugs & the
Press
by Alexander
Cockburn
and Jeffrey St. Clair
The Memphis Blues Again:
Six Decades of Memphis Music Photographs
Photos by Ernest Withers
Text by Daniel Wolff
The New Intifada:
Resisting Israel's Apartheid
Edited by Roane Carey
A Pocket Guide to
Environmental Bad Guys
by James Ridgeway
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The
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by Douglas Valentine
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January 25,
2002
Protecting Dr. King's Legacy:
Justice
and Liberty in the Wake of September 11th
By Nadine Strossen
[Testimony Before Congressman John
Conyers' Forum on National Security and the Constitution]
The American Civil Liberties Union is a non-partisan,
non-profit organization consisting of nearly 300,000 members
dedicated to protecting the principles of freedom and equality
set forth in the Constitution and in our civil rights laws. We
have been involved in responding to Congressional and Administrative
actions in the wake of September 11th, some of which we find
deeply troubling. Many of the policies are placebos - they are
illusory "solutions" that do not make us safer but
do threaten fundamental constitutional protections. We believe
that it is possible to be both "Safe and Free." We
can have effective law enforcement while also protecting individual
rights.
As we start a new year and celebrate
the birthday of Dr. Martin Luther King, Jr., we commend you,
Mr. Chairman, for holding this forum. This is an appropriate
time for the Congress to ensure that in our effort to remain
secure, we do not sacrifice the very foundations of our democracy.
Dr. King's life is a testament to the
power of the Constitution. Dr. King had the social insight and
moral courage to challenge government and resist policies that
undermined liberty, equality, and justice for all. He stood on
the principles of the First Amendment to advocate equality under
the Fourteenth Amendment.
Over the past several months, the Executive
Branch has initiated an expansive array of new police powers
and tactics that raise significant moral and constitutional questions
-- from secret tribunals and expanded wiretapping authority,
to monitoring attorney-client conversations, riffling through
confidential business and student records, rounding up and detaining
immigrants in secret, and questioning certain young male lawful
U.S. residents merely based on their national origin. It is up
to the Congress to assert its oversight authority -- and responsibility
-- to examine these dramatic actions.
As you consider the actions taken in
response to terrorism, consider that threats to the constitutional
rights of one group endanger the constitutional rights of everyone.
As Dr. King said in a speech he gave in September 1967: "I
have fought too hard and long to end segregated public accommodations
to segregate my own moral concerns. It is my deep conviction
that justice is indivisible, that injustice anywhere is a threat
to justice everywhere."
Justice means that each and every right
and liberty in our Constitution must be as strong in a time a
crisis as in a time of peace. We cannot sacrifice equality or
privacy or basic checks and balances without eroding justice
for all. We cannot allow discrimination against one group without
threatening equality for all. We cannot allow the government
to silence the voice of one dissenter without weakening the core
of our democracy. These principles are the bedrock of American
democracy.
Justice
Means Equality
Secret Detention
The Department of Justice has launched
what appears to be an extensive program of preventive detention.
The Department admits that over 1,200 people have been detained
in connection with the September 11 attacks. Some have been incarcerated
for long periods of time, others held for only hours. Because
of the secrecy surrounding the detentions, we do not have a full
picture as to how many people are still incarcerated, where they
are incarcerated, whether they have access to counsel and how
they are being treated. Some of the stories being reported upon
are disturbing. According to a Washington Post story, two Pakistani
immigrants were held for 49 days before being charged with overstaying
their visas; and an Israeli national was held for 66 days before
being charged with entering the country illegally.1
According to media accounts of the detentions,
only a very small number of persons who have been arrested have
any involvement with, or knowledge of, the attacks. Approximately
10 people are at what the Washington Post called the "hot
center" -- believed to have close ties to the Al-Qaeda network
or some knowledge of the hijackers. An additional 18 people are
believed to have more distant connections to the hijackers or
connections to the people in the "hot center." The
rest have been charged with unrelated technical immigration violations
or minor criminal charges (usually under state law), or are being
held as material witnesses under 18 <U.S.C>. sec. 3144.
It appears that the vast majority of
the people being detained in connection with this investigation
are being detained on pretexts: they are suspected of having
committed minor offenses that give law enforcement or immigration
authorities the power to detain them even though they would not
normally be detained for such conduct. By all accounts, the overwhelmingly
majority of detainees are Muslims or Arabs, come from Middle
Eastern countries, and are non-citizens. However, as was previously
mentioned, we know that there have been at least a few detainees
from India and Pakistan. It seems that for the most part, similarly
situated non-Muslims and non-Arabs who commit the same types
of violations are not being detained.
We have the most urgent concern for the
detainees who are being held on immigration charges because their
access to legal counsel is limited. Although the Attorney General
assures us that everyone being held has had access to counsel,
many stories are coming to light that belie this assertion. For
example, Dr. Al Bader Al-Hazmi, a San Antonio, Texas, Saudi national
and a radiologist at the Texas Health Science Center was held
incommunicado -- denied access to either his lawyer or his family
-- for seven days. After nearly two weeks in detention, Dr. Al-Hazmi
was finally released with no charges filed against him. Another
troubling example is Tarek Mohamed Fayad, an Egyptian national
and dentist residing in California. He was picked up by the FBI
on September 13th and then transferred to the Brooklyn Detention
Center in New York City, where we believe he remains to this
day. According to the Wall Street Journal, it took his lawyer
one month before she was able to locate and talk to him. If this
is the treatment that prominent professionals are receiving,
one can only imagine what is happening to people who are less
fortunate.
The public has virtually no information
about the whereabouts of persons held on immigration violations.
Are they being held in custody or have they been released? Where
are they being held? How long have they been held? Do they have
attorneys? The fact that immigration detainees can be held in
so many facilities, coupled with the secrecy surrounding the
detention, makes it extremely difficult to determine whether
the detainees have access to counsel, are allowed contact with
their families, and are being properly treated. We know that
at least one detainee - 55-year-old Mohammed Rafiq Butt - died
in custody. On October 23, Mr. Butt was found dead in his cell
at the Hudson County jail in Kearny, New Jersey, the cause of
death ruled heart failure. We know of others who have been held
for weeks without any charges being lodged against them. This
contradicts the Attorney General's assurances that all those
who are being detained are being promptly charged within 48 hours.
It also violates the recently enacted USA PATRIOT Act, which
requires that, even for those individuals certified by the Attorney
General as suspected terrorists, charges must be filed within
7 days or the individuals must be released.
It is not for lack of trying that we
have been unable to get adequate information about the detainees.
On October 17, 2001 the ACLU wrote to the Attorney General asking
him for information about the detainees. He did not respond to
that letter. We posed similar questions to the Director of the
FBI, Robert Meuller, at two meetings on September 25 and October
25. When those requests for information failed, we filed, along
with other organizations, a request under the Freedom of Information
Act on October 29. Subsequent to filing the FOIA request, on
October 30, we met with Commissioner Ziglar of the Immigration
and Naturalization Service who also did not provide the information.
When our repeated attempts to obtain
information failed, we filed suit in federal district court on
December 5, 2001 along with other organizations including the
American-Arab Anti-Discrimination Committee, the Arab American
Institute, the Asian American Legal Defense and Education Fund,
the Center for National Security Studies, the Council on American
Islamic Relations, the Electronic Privacy Information Center,
Human Rights Watch, and the Reporters Committee for Freedom of
the Press.
Since filing suit, the government's response
to our legal request for basic information on individuals arrested
and detained after September 11th continues to be "incomplete
and inaccurate." We are now seeking further information
about the contradictory information contained in documents provided
on January 11, 2002. Those documents revealed beyond any doubt
that earlier assurances by government officials that rights were
being respected were false. For example, while officials said
that they were, in general, charging those who were arrested
within the constitutionally required 48-hour period, the documents
show instead that many individuals were not charged for several
weeks, or even as long as two months.
We believe that a complete response to
our FOIA request will prove that the vast majority of people
detained after September 11 had no connection to terrorism and
may also show that the government placed severe obstacles in
order to thwart access to counsel. Civil rights and human rights
groups who had routinely been given access to detention facilities
to offer legal assistance were not permitted to do so after September
11th. Individuals who retained lawyers were denied the right
to have a lawyer present during questioning.
The documents that have been provided
reveal that the government itself has determined that most of
the detainees are not connected to terrorism and that the Attorney
General no longer has any national security rationale for withholding
information about these individuals. For instance, of the 725
detainees listed in documents, 344 are listed separately under
the caption 'INACTIVE CASES,' which would seem to indicate that
they have been cleared of any link to terrorism.
Our organization continues to press for
basic information about the detainees and about any rights violations
that have occurred. The ACLU of New Jersey announced on January
22 the filing of a lawsuit against Hudson and Passaic Counties,
seeking disclosure of the names of all Immigration and Naturalization
Service detainees held in those counties' jails. The filing was
made under the state's strong public records law, which requires
that jails make public the names and other information on all
those being held.
Attorney
General Passes Emergency Regulation to Make it Easier to Detain
People
Adding to the concern about unfair detention
is a new regulation that makes it easier for the government to
detain non-citizens. This regulation was issued by the Attorney
General on October 26 and went into effect on October 29. Like
many post-September 11 regulations, it was put into effect under
the administration's "emergency rule-making authority"
that exempts the Attorney General from complying with the normal
notice and comment period. The new rule allows the Immigration
and Naturalization Service to set aside any release order issued
by an immigration judge, simply because it disagrees with the
immigration judge's determination, in cases where the INS says
it believes that the non-citizen poses a danger to the community
or is a flight risk. Previously, the INS needed to request a
stay from the Board of Immigration Appeals if it disagreed with
an immigration judge's determination, except in limited circumstances
where the individual had been convicted of certain crimes or
accused of terrorism. Now, even for individuals who are merely
accused of overstaying their visas, the hearing before the immigration
judge has been rendered meaningless because the decision whether
to detain or release rests exclusively with the INS.
The Questioning
of 5,000 Men
Based on their Country of Origin
In addition to detaining people based
on their ethnicity or country of origin, the Attorney General
also is using these criteria as the primary reason for questioning
people. In a November 9, 2001 directive, the Attorney General
ordered the FBI and other law enforcement officials to conduct
interviews of at least 5,000 men, 18 to 33 years old, who had
entered the U.S. on non-immigrant visas in the past two years
and come from countries where terrorist activities are known
or believed to occur. The DOJ's list of the young men targeted
for government questioning was compiled based on their national
origin, age and gender, not on any individualized suspicion of
criminal activity.
The DOJ acknowledged that it has no basis
for believing that any of the thousands of men on this list has
any knowledge whatsoever that is relevant to the investigation,
and it stresses that it has no basis for suspecting any of them
of any involvement in any terrorist activities, or of any other
criminal activity, or any violation of immigration laws.
The ACLU recognizes the right - indeed
the responsibility -- of federal law enforcement to gather relevant
information in the course of its investigation into the September
11 terrorist attacks. But discriminatory, dragnet profiling is
neither an effective investigative technique nor a permissible
substitute for the constitutional requirement of individualized
suspicion of wrongdoing.
The DOJ guidelines went far beyond any
legitimate quest for factual information. Officials were instructed
to inquire into the political beliefs of the targeted young men,
and to ask them to report on the political beliefs of their families
and friends. The Attorney General has reported that the interviews
were "successful" and conducted professionally. However,
the Attorney General has not claimed that the interviews succeeded
in acquiring a significant amount of information relevant to
the September 11th investigation. Besides raising constitutional
concerns, this investigative technique seemed to be ineffective.
Deporting
6,000 People Based
on Their Country of Origin
The most recent discriminatory tactic
is the administration's decision to deport 6,000 people who are
in violation of their immigration status. The ACLU does not oppose
deporting people who have broken immigration laws; we do, however,
object strenuously to selective prosecution, a questionable law
enforcement tactic that has never been proven effective. While
there are over 300,000 outstanding deportation orders, the DOJ
plans to focus on some 6,000 based solely on national or ethnic
origin. There is no evidence that selectively deporting people
with outstanding deportation orders would have prevented the
events of September 11th. None of the highjackers had outstanding
deportation orders. Many of the hijackers were in the country
legally; in fact, the whole point of a "sleeper cell"
is to remain innocuous until the last moment before springing
into violent action.
A dragnet approach to removing individuals
who overstay their visas based solely on national origin is counter-productive
because Al-Qaeda is an organization that spans the globe. Focusing
on men from the Middle East or North Africa won't prevent terrorism
because the terrorists will simply come from a cell in a country
far off the radar screen. The government should be encouraging
those with information to come forward, rather than alienating
individuals who might have information and discouraging them
from coming forward because of the targeting and mistreatment
of their communities.
Furthermore, a recent article in the
Washington Post states that Asia and Africa are believed to be
the next possible source of Al-Qaeda operatives. According to
government officials, Al-Qaeda, by utilizing Asian and African
terrorists, hopes to elude the racial profiles developed by law
enforcement agencies.
Increase
in Racial Profiling
The government's investigative tactic
of focusing on a person's nationality instead of specific, individualized
evidence of criminal activity, is encouraging racial or ethnic
profiling on other fronts. Dozens of people whom are -- or "look
like" -- Arabs, Muslims, or South Asians have experienced
discrimination in our nation's airports. Many have been forced
off flights, sometimes by law enforcement and other times by
airline personnel, even after being cleared by law enforcement.
Others have been subjected to very intrusive
searches. Only last week, on January 16, the ACLU of Illinois
filed a lawsuit on behalf of Samar Kaukab, a Muslim woman who
was strip-searched at O'Hare Airport. Kaukab passed through metal
detectors without setting them off, and there was no indication
that she was carrying any banned materials on her person or in
her carry-on bags. In 1999, the Government Accounting Office
released a study that documented a pattern of racial profiling
against African-American women at our nation's airports by the
Customs Service. While we had hoped that the problem of racial
profiling in our nation's airports was being addressed, it seems
that the events of September 11th have set us back in our efforts
to make positive reforms.
Discrimination
Against Airport Screeners
The recently enacted Airline Security
Bill included a provision requiring that persons working as screeners
be United States citizens. On January 17, the ACLU's California
affiliates, joined by Service Employees International Union (S.E.I.U.),
filed suit challenging the citizenship requirement. Plaintiffs
include a U.S. Army veteran and a woman who has been employed
as a screener for 14 years and received a commendation for detecting
a loaded gun.
The impact of this discriminatory policy
is profound when one considers that non-citizens make up 80 percent
of the screeners at the San Francisco Airport, more than 40 percent
at Los Angeles International Airport, and a large percentage
of screeners at other major airports around the country. Given
that permanent residents can serve in the armed forces and be
subject to the draft, this new policy seems doubly absurd. If
permanent residents are trustworthy enough to defend our country,
why can't they help defend our airports? This policy does nothing
to further our security but does deprive many hard working people
of jobs. In fact, the policy may well actually make us less safe
because it would drastically decrease the number of experienced,
qualified people working as screeners and would decrease the
overall level of screener job experience at the same time the
Department of Transportation is trying improve security at our
airports
Justice
Means the Right to Dissent Free from Government Intrusion
Relaxing
the guidelines on political spying
On December 1, 2001, the New York Times
reported that Attorney General Ashcroft is considering a plan
to relax restrictions on the FBI, giving them greater freedom
to spy on religious and political organizations. Apparently,
Mr. Ashcroft is not a student of history.
Many of us remember the horrific revelations
made during the Church Hearings in the 1970's. The FBI "monitored
political demonstrations, infiltrated civil rights groups, conducted
illegal break-ins and warrant-less wiretaps of anti-war groups,
sent anonymous poison-pen letters intended to break up marriages
of political group leaders, and targeted, among others, Dr. Martin
Luther King, Jr."
With regard to Dr. King, the FBI had no bona fide investigative
purpose for its activities. The campaign against him was predicated
on FBI Director J. Edgar Hoover's dislike of King. In 1962, Hoover
wrote on a memorandum that Dr. King was "no good."
A monograph compiled and published by the FBI and distributed
to various officials was described by Burke Marshall, Assistant
Attorney General for the Civil Rights Division under Robert Kennedy,
as "a personal diatribe. . .a personal attack without evidentiary
support on the moral character and person of Dr. Martin Luther
King, and was only peripherally related to anything substantive.
. ." Dr. King's real crime in the eyes of the FBI was that
he "represented a clear threat to 'the established order'
of the U.S."
The FBI's enmity toward Dr. King led it to bug his telephones
and hotel rooms, obtaining highly person information that it
then tried to use to break up his marriage and to encourage him
to commit suicide. The FBI tried to discredit King in the eyes
of the White House, Congress, the religious community, and even
foreign governments - all done because Dr. King advocated social
justice.
The documented excesses of the FBI in
targeting individuals or groups because of their beliefs led
to Congressional hearings, and, eventually, guidelines adopted
by the Attorney General. These guidelines regulate FBI activity
in both foreign and domestic intelligence gathering, and make
it clear that constitutionally protected advocacy of unpopular
ideas or political dissent alone cannot serve as the basis for
an investigation.
The primary safeguard is that the guidelines
require a valid factual basis for opening an investigation, which
largely precludes wholesale FBI fishing expeditions. The preamble
to the Attorney General's Guidelines on General Crimes, Racketeering
Enterprise and Domestic Security/Terrorism Investigations (hereinafter
"Domestic Guidelines") notes investigations "must
be performed with care to protect individual rights and to insure
that investigations are confined to matters of legitimate law
enforcement interest." A domestic terrorism investigation
may only be initiated "when the facts or circumstances reasonably
indicate that two or more persons are engaged in an enterprise
for the purpose of furthering political or social goals wholly
or in part through activities that involve force or violence
and a violation of the criminal laws of the United States."
One of the considerations when determining whether to open such
an investigation is "the danger to privacy and free expression
posed by an investigation."
The Attorney General Guidelines for FBI Foreign Intelligence
Collection and Foreign Counterintelligence Investigations (hereinafter
"Foreign Guidelines") state that investigations of
groups or organizations "should focus on activities of foreign
counterintelligence or international terrorism activities, not
on unrelated First Amendment activities." [Emphasis added.]
The threshold for opening a formal investigation
is low, requiring only a "reasonable indication" that
a crime is occurring or is about to occur. This standard is substantially
lower than probable cause." The FBI is also authorized to
open a preliminary inquiry based on even a lower evidentiary
threshold, when it receives any information or allegation "whose
responsible handling requires some further scrutiny." These
preliminary inquiries are contemplated to be of short duration
and more limited than a full investigation. A preliminary inquiry
can turn into a full investigation upon the Bureau's receiving
"reasonable indication" that a crime has been, or is
about to be, committed.
Not only is there already a low standard
for FBI investigations, but it is also clear the Bureau's hands
are not tied. It need not wait for a crime to occur. The Guidelines
recognize that "[i]n its efforts to anticipate or prevent
crime, the FBI must at times initiate investigations in advance
of criminal conduct."
The guidelines also make it clear that the FBI may investigate
based on advocacy of violence. While urging respect for the First
Amendment, the guidelines state: "When, however, statements
advocate criminal activity or indicate an apparent intent to
engage in crime, particularly crimes of violence, an investigation
under these guidelines may be warranted."
We know from history what happens when
the FBI is given too long a leash -- it targets individuals and
groups based on their advocacy and association rather than based
on legitimate law enforcement concerns. The guidelines were adopted
to shorten that leash and to keep investigations properly focused.
To relax the guidelines and allow greater spying on groups based
on their First Amendment activity is counter-productive and a
waste of resources, as well as violating fundamental constitutional
rights.
Political spying not only undermines
our political freedom, chilling those who may disagree with the
status quo, but it also diverts resources that could be better
spent fighting real crime. Thousands of groups espouse views
with which the government disagrees, but a relatively small number
ever engage in criminal activity. Every FBI agent spending his
or her days noting license plate numbers at a political rally
or taping and transcribing political speeches is an agent not
engaged in preventing or solving crime.
Political spying is also likely to exacerbate
violence rather than stop it. Justice Louis Brandeis recognized
long ago that the First Amendment acts as a safety valve. If
those marginalized in our society are free to express their views
and engage in political activity, they are less likely to resort
to violence. Political spying plays into the hands of many anti-government
extremist groups, driving them underground and encouraging the
fanatics among them to respond with violence.
While the Attorney General drafts the
Guidelines, Congress has the responsibility to oversee any proposed
amendments and examine their effects on the constitutional right
to dissent. Since the passage of the USA PATRIOT Act, Congress
must be even more vigilant in overseeing the Justice Department
because the USA PATRIOT Act permits law enforcement agencies
to share sensitive information gathered in criminal investigations
with intelligence agencies including the CIA and the NSA, and
also with other federal agencies including the INS, Secret Service,
and Department of Defense.
The PATRIOT Act also permits law enforcement
officers to share with the CIA intercepts of telephone conversations
and Internet communications. No court order would be necessary
to authorize the sharing of this sensitive information and the
law does not include any meaningful restrictions on subsequent
use of the recorded conversations. For example, there is nothing
in the Act that prevents this information from being used to
screen candidates who apply for government jobs. Moreover, the
Act does not prohibit the CIA from sharing with foreign governments
surveillance information gleaned from a criminal investigation,
even if sharing that information could put at risk members of
a person's family who live abroad.
The PATRIOT Act also mandates disclosure
to the CIA of "foreign intelligence information" obtained
in connection with a criminal investigation, without defining
"foreign intelligence information." These provisions
represent extraordinary extensions of the previous powers of
the foreign intelligence agencies, including the CIA, to obtain
information about Americans.
While some sharing of information may
be appropriate in some limited circumstances, it should only
be done with strict safeguards. The PATRIOT Act lacks essential
safeguards, which may well lead to a recurrence of the very abuses
that the Church Committee exposed -- and sought to end -- decades
ago.
Justice
Means the Right to
Meaningful Due Process
Monitoring
Protected Attorney Client Conversations
Not only are people being detained without
access to counsel, but in addition, once they obtain counsel,
there is no guarantee that their attorney-client communications
will be kept confidential. The Attorney General promulgated regulations
that permit the Department of Justice to monitor confidential
attorney-client conversations in any case in which the Attorney
General finds that there is "reasonable suspicion"
to believe that a particular federal prisoner "may"
use communications with attorneys or their agents "to further
or facilitate acts of terrorism." The regulation requires
that the Director of the Bureau of Prisons (BOP) "shall
... provide appropriate procedures for the monitoring or review
of communications between that inmate and attorneys or attorneys'
agents who are traditionally covered by the attorney-client privilege.
In short, the Justice Department, unilaterally,
without judicial oversight, and with no meaningful standards,
is to decide when to monitor the confidential attorney-client
conversations of a person whom the Justice Department itself
may be seeking to prosecute. This regulation applies not only
to convicted prisoners in the custody of the BOP, but also to
all persons in the custody of the Department of Justice, including
pretrial detainees who have not yet been convicted of any crime
and are presumed innocent, as well as material witnesses and
individuals who are being held on suspected immigration violations
and who are not accused of any crime.
What makes the regulation even more disturbing
is the fact that it is completely unnecessary. The Department
of Justice already has legal authority to record attorney-client
conversations by going before a judge and obtaining a warrant
based on probable cause that the attorney is facilitating a crime.
Indeed, the Supreme Court has even approved searches of an attorney's
law office, provided a warrant has first been obtained from a
neutral and detached magistrate. Similarly, if prison officials
have reason to believe that a particular prisoner is using the
mail to violate the law or threaten security, they may obtain
a search warrant to read and open the mail.
The Justice Department has not articulated
a single reason why current law is insufficient to ensure that
attorneys are not assisting their clients in committing crime.
Indeed, during questioning before the Senate Judiciary Committee
on November 27, 2001, Assistant Attorney General Michael Chertoff
could not answer Senator Kennedy's question as to why the new
regulation was necessary. Though it lacks any justification for
doing so, the Department of Justice has made itself the arbiter
of when conversations should be monitored, taking away the authority
from a neutral judge. This regulation is an unprecedented frontal
assault on the attorney-client privilege as well as on the right
to counsel and the right of access to the courts guaranteed by
the Constitution.
The DOJ defends its regulation by pointing
out that it is required to give notice to an inmate that his
or her conversations may be monitored. However, this protection
does not eliminate the damage to the attorney-client relationship.
In a recent opinion, Richard A Posner, Chief Judge of the United
States Court of Appeals for the Seventh Circuit, powerfully explained
why "merely" announcing a policy of government monitoring
of attorney-client communications would have a devastating impact
on the attorney-client privilege and the associated Sixth Amendment
rights to representation by counsel and access to the courts.
Chief Judge Posner's opinion described a colloquy during the
oral argument in which he had asked the government lawyer if
the attorney-client privilege would be violated in the following
hypothetical situation: all conversations between criminal defendants
and their lawyers were taped, but the tapes were never turned
over to the prosecutors, and instead were stored in the National
Archives. The government lawyer took the position that none of
the defendants could complain in this situation because none
could be harmed by it, since the prosecutors would not have access
to the tapes. Judge Posner rejected that conclusion, explaining:
The hypothetical practice that we have
described would, because of its pervasiveness and publicity,
greatly undermine the freedom of communication between defendants
and their lawyers and with it the efficacy of the right to counsel,
because knowledge that a permanent record was being made of the
conversations between the defendants and their lawyers would
make the defendants reluctant to make candid disclosures. (Totalitarian-style
continuous surveillance must surely be a great inhibitor of communication.)
In sum, then, this regulation is unnecessary
for the government's efforts to fight terrorism, but it does
harm important constitutional rights.
Military
tribunals
On November 13, 2001, President Bush
issued a "Military Order" providing for potentially
indefinite detention of any non-citizen accused of terrorism,
and permitting trial of such defendants in a military commission
with no provision for judicial review. Furthermore, the order
was issued without a formal Congressional declaration of war
and without Congressional authorization to use military tribunals.
The scope of the President's Order is
breathtakingly broad. It applies to any individual whom the President
determines he has "reason to believe" is (1) a member
of Al Qaeda, (2) is in any way involved in "acts of international
terrorism" -- a term that is not defined by the order --
or (3) has "knowingly harbored" either of the above.
If the term "acts of international terrorism" is defined
by reference to any of several definitions of terrorism in the
United States Code, as expanded under the USA PATRIOT Act, the
universe of potential defendants could extend to not only those
who are directly involved in or knowingly support violent activity,
but also many others on the basis of otherwise lawful, non-violent
political activities and associations. While Administration officials
have insisted the order applies only to those accused of war
crimes, the jurisdiction of the order has not been narrowed to
explicitly include any such limitation.
The President's Military Order is unjustified
and dangerous. It permits the United States criminal justice
system to be swept aside merely on the President's finding that
he has "reason to believe" that a non-citizen may be
involved in terrorism. The order does not differentiate between
those who are captured abroad on the field of battle and those
who are arrested in the U.S. by federal or state police. And
for those who are in the U.S., the order applies regardless of
whether the individual is a temporary visitor or a long-term
legal resident. Finally, while the order applies in terms only
to non-citizens, the precedents on which the President relies
make no such distinction, thereby permitting the order to be
extended to cover United States citizens at the stroke of a pen.
Since United States courts can effectively
hear terrorism cases -- and there has been no showing that they
cannot -- this severely undercuts the argument for military tribunals.
Military tribunals, other than ordinary courts-martial, are adopted
as a last resort to ensure justice when the civil courts cannot
function, not as a method of avoiding available forums for justice
by undercutting basic constitutional rights. Military tribunals
are used against "certain classes of offenses which in war
would go unpunished in the absence of a provisional forum for
the trial of the offenders." Madsen v. Kinsella, 343 U.S.
341, 348 n.8 (1952) (Emphasis added). Likewise, President Lincoln
regarded military tribunals as permissible only if justified
by military necessity, and refused demands to create military
courts except where made necessary because of the inability of
the regular courts to act. Our Courts have successfully tried
dangerous terrorists in the past, including members of Al-Qaeda
who bombed U.S. Embassies in Africa.
Finally, and perhaps most importantly,
President Bush's Military Order utterly fails to account for
the evolution of both international law and American constitutional
law since World War II, when military commissions were last extensively
used. It does not guarantee due process for the accused and could
permit trials that our own government has said are fundamentally
unfair and violate basic international standards when such trials
are held in other countries. If Congress chooses to authorize
military tribunals for a limited class of accused terrorist war
criminals, it is imperative that such internationally guaranteed
standards apply.
Justice
Means an Open Government
Secrecy
Americans have experienced the loss of
personal privacy and the increase of government secrecy with
dizzying speed since September 11. Department of Justice regulations
and Executive Orders have covered government operations with
a shroud of secrecy.
Immigration hearings, normally open to
the public, have been ordered closed in all cases in which the
Department of Justice indicates an "interest" related
to the September 11 investigation - regardless of whether there
is any demonstrated governmental need for such secrecy. Even
Chairman Conyers, Ranking Member of the House Judiciary Committee,
was denied access to an immigration hearing of one of his constituents.
While the government initially denied that it had imposed such
a policy of closing hearings, Administration officials were forced
to acknowledge that they had indeed issued such a blanket directive
when a memorandum surfaced that mandated such closures.
Likewise, Administration officials have
announced that they intend to use President Bush's "Military
Order" in any case in which they deem an open hearing, consistent
with our Constitution and tradition of open trials, not to be
consistent with the needs of security.
Freedom
of Information Act
and Presidential Records
Attorney General John Ashcroft has issued
a new statement of policy that encourages federal agencies to
resist Freedom of Information Act (FOIA) requests whenever they
have legal grounds to do so. The new statement supersedes a 1993
memorandum from Attorney General Janet Reno, which promoted disclosure
of government information through the FOIA unless it was "reasonably
foreseeable that disclosure would be harmful." The Ashcroft
policy rejects this "foreseeable harm" standard. Instead,
the Justice Department instructs agencies to withhold information
whenever one could argue there is a "sound legal basis"
for doing so.
As with many of the Bush Administration's
new restrictions on public information, the policy is only peripherally
related to the fight against terrorism. Rather, it appears to
exploit current circumstances to advance a predisposition toward
official secrecy. At the same time that the government is acquiring
more legal authority to obtain private information about individuals,
it is also cutting back on sharing with those individuals themselves
the information that it has obtained about them, making it more
difficult for people to learn what kind of files their government
is keeping on them.
Another example of Administration secrecy
is an Executive Order, issued November 1, that gives President
Bush-- as well as former presidents -- the right to veto requests
to open any presidential records. Even if a former president
wants his records to be released, the Executive Order permits
President Bush to assert executive privilege to prevent their
release. The order also gives President Bush, as well as former
presidents, an indefinite amount of time to ponder any requests.
This Executive Order openly violates the Presidential Records
Act passed by Congress in 1978.
Bad Ideas
on the Horizon
National
ID
Since September 11, there has been renewed
discussion about the implementation of a national ID system.
The purpose of such proposals is to divide the world into "us"
- the good guys versus "them" - the bad guys. All of
us would like an ID card that puts us squarely on the right side
of the line and exempts us from suspicion and heightened security
measures.
Unfortunately, a national ID system would
not effectively sort out the good from the bad, or even establish
true identity. An identification system is only as good as the
documents that establish identity in the first place. It makes
no sense to build an ID system on a faulty foundation. Anyone
can falsify or forge the documents needed to get an ID, including
social security numbers and birth certificates. Many of the September
11 highjackers had legitimate ID based on government issued social
security numbers.
A national ID system would fail as a
security measure, but it would require each and every person
in the United States to carry an internal passport, chilling
our freedom and threatening our privacy. Day to day, individuals
could be asked for ID when they are walking down the street,
applying for a job or health insurance or entering a building.
Law enforcement officials, tax collectors, and other government
agents would come up with more and more uses for the ID. Once
government databases are integrated or centralized, access to
personal information would inevitably expand. Furthermore, private
parties, such as health insurers, direct mailers and credit agencies,
would begin using the ID, further eroding the privacy of everyone
in this country. National IDs would result in a surveillance
society where freedom would be limited through a series of daily
checkpoints.
In addition, a massive government bureaucracy
would be required to implement such a system. One employee mistake,
a database error, or fraud could result in individuals being
denied ID cards that could severely limit their ability to go
about their daily routines. Anyone who has had to correct an
inaccurate credit history will understand how hard it could be
to correct an error that has found its way into your ID "file."
Finally, some have suggested that a national
ID would be the great equalizer, ending racial profiling and
other discriminatory practices. Unfortunately, such hopes are
illusory. The cards would likely facilitate all too familiar
discrimination based on race, national origin, religion, and
immigrant status. ID cards would provide police and employers
an excuse to subject Latinos, Asians, African-Americans and other
minorities to more and more status and identity checks.
We urge the Congress to question whether
the national ID proposal would be effective in the first place
and also to consider the unintended adverse consequences for
our civil liberties. Already, state Departments of Motor Vehicles
have proposed to standardize state drivers' licenses. This proposal
would effectuate a national ID through a bureaucratic "back
door" and suffers from the same flaws already articulated.
Conclusion
Congress must resist any future "quick
fix" "antiterrorism" or "security" measures
that the administration proposes. Despite Attorney General Ashcroft's
promises to uphold the Constitution and protect civil liberties,
his actions belie his rhetoric. Our democracy is in real danger
if any one branch of the government becomes too powerful. From
establishing military tribunals without Congressional approval,
to expanding wiretapping authority while limiting judicial oversight,
this Administration is demonstrating its disregard for the other
two branches of government. The precarious balance of powers
is becoming dangerously tilted toward an excess of Executive
Branch power. We urge the Congress to play an active role in
guarding against continued excesses of the executive branch.
We urge Congress to:
Hold quarterly oversight hearings on
the implementation of the USA PATRIOT Act to make sure that civil
rights and liberties are protected;
Ensure that the Department of Justice
complies with section 1001 of the USA PATRIOT Act that requires
the Inspector General of the Department of Justice to establish
one position to review information and receive complaints alleging
abuses of civil rights and civil liberties by employees and officials
of the DOJ and report to the Congress on those abuses;
Establish an independent Civil Rights/Liberties
Commission of prominent academics and national leaders to monitor
and analyze the impact of the USA PATRIOT Act;
Call upon the Department of Justice to
give a full accounting of all persons held in detention since
September 11, to ensure that all persons are being held on legitimate
charges and have access to adequate legal counsel and to immediately
release all people being held illegally;
Urge the Attorney General to rescind
immediately the regulations that permit the monitoring of attorney-client
conversations and that permit the Attorney General to override
release orders of immigration judges.
Lastly, I would like to point out that
it is not only the ACLU that shares these concerns. Attached
to this document is a "Call to Action" signed by 50
national organizations expressing similar concerns.
Thank you very much. I appreciate very
much the opportunity to appear here today and look forward to
continuing to work with you in the future.
Nadine Strossen
is president of the ACLU.
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