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Balancing Security & Civil Liberties OVERVIEW
THE CONSTITUTION AND TERRORISM
Following the terrorist attacks of September 11, 2001, Congress passed legislation to combat terrorism. Included in these legislative measures are new ways to gather information on U.S. citizens. Today, Americans wonder about how the new legislation, hastily enacted by Congress in the aftermath of 9-11, will impact their lives in the trying times ahead. In the January 2002 Case of the Month, we will explore answers to the following question: "What is the role of the Constitution during times of a national crisis and in wartime?"
Subsequent to the attacks, in October, Congress passed H.R. 3162 known as the ``Uniting and Strengthening America Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" (USA PATRIOT Act). The Patriot Act has serious civil liberties implications for both innocent citizens and non-citizens.
WIRETAPPING
Specifically, the bill expands existing governmental powers (as outlined in the so-called "pen register" statute) to allow law enforcement to read people's e-mail messages and monitor their Internet usage. The "pen register" previously referred to law enforcement powers involving the tracing of telephone numbers called by suspected criminals. By expanding those powers to now include monitoring of electronic communications, the statute allows investigators to obtain wiretaps for activity on the Internet, which can mean the collection of IP addresses, the Internet equivalent of phone numbers.
Further, Internet service providers must make their services more wiretap friendly. Law enforcement must simply certify that the information to be obtained is "relevant to an ongoing criminal investigation." This is a very low level of proof, far less than probable cause. The judge must grant the order upon receiving the certification.
Wiretapping can be conducted legally, and the government has been doing so for many, many years. In fact, just this last decade, judges have denied only 3 wiretap requests from federal and state law enforcement. With the creation of the Federal Surveillance Act of the mid 70s, Congress gave law enforcement the power to conduct wiretaps for the purpose of foreign "intelligence" gathering, which usually involves threats to national security. This new legislation, however, makes it easier for law enforcement to circumvent judicial checks so that law enforcement agencies no longer have to ask the court for permission to conduct wiretaps. Law enforcement can use this enormous, unchecked power to collect information by unwarranted surveillance on Americans.
The wiretapping legislations share a common theme: they minimize the role of a judge in ensuring that law enforcement is doing its job. One example of this "unchecked" power is the congressional authorization of "blank warrants" in which the court issues the order, and the law enforcement agent fills in the places to be searched. This is not consistent with the Fourth Amendment privacy protection, which requires that warrants specifically identify the place to be searched.
The Fourth Amendment protects against unreasonable searches and seizures and requires that the government (a) obtain a warrant and (b) notify the person whose property will be searched before conducting the search. The person whose property is to be searched has the opportunity to assert his/her Fourth Amendment rights. Irregularities in the warrant can be pointed out if, for example, the police are at the wrong address, or if the warrant is limited to a search for [a stolen car] (X), the police has no authority to look in [ one's dresser drawers] (Y). The ACLU recently issued a statement on "Sneak and Peek" Warrants, click here to read the complete statement.
SECRET EVIDENCE
The Patriot Act also allows for detention and deportation of people engaging in innocent associational activity. Under this new and far-reaching power, the Secretary of State could designate any group that has ever engaged in violent activity a "terrorist organization." That means someone who supports People for the Ethical Treatment of Animals and throws a pie at the face of a public official who supports drilling in an Alaska wildlife refuge can be designated a terrorist.
Currently, the government uses the highly controversial power to use "secret evidence" ? classified information not available to the defense ? in the Alien Terrorist Removal Court to detain and deport immigrants suspected of terrorist activity. Since September 11 th, the United States Government has detained over 1,000 immigrants, relying on "secret evidence" to detain and deport them, despite the fact that President Bush, while on the campaign trail, objected to the use of secret evidence.
The use of secret evidence is based on the Anti-Terrorism Act of 1996 (HR 3593, the Aviation Security and Antiterrorism Act of 1996), which allows the INS to arrest, detain and deport non-citizens on the basis of evidence the source and substance of which is not revealed to the potential deportees or their lawyers.
Dr. Mazen Al-Najjar is a stateless Palestinian, who has been residing in the US since 1981. In May 1997, he was apprehended by the Immigration Naturalization Service (INS) on the basis of secret evidence presented to INS Judge R. Kevin McHugh. The secret evidence, which neither Al Najjar nor his attorneys were able to review, allegedly linked him to the Palestinian Islamic Jihad. He languished behind bars for more than three years before walking out of jail in December 2000. He was a free man for nearly one year, before he was re-arrested on November 24, 2001 under the pretext of a final order of deportation.
Like many other Arabs around the country, Al Najjar, former editor of an Islamic journal and a pastor at a Tampa mosque, was denied bond on the basis of secret evidence that allegedly indicates mere association "with a known terrorist group."
FLORIDA RESPONSE
On October 1 in Florida, state agencies issued recommendations on ways to heighten security that included everything form increasing surveillance of bank and telephone records to detaining immigrants on mere suspicion.
The ACLU of Florida Executive Director Howard Simon sent a letter to Governor Bush, outlining ACLU concerns with a provision of Executive Order #01-300, issued by Gov. Bush on Oct. 11, that states the "Florida Department of Law Enforcement (FDLE) shall establish a dedicated Statewide Domestic Security Intelligence Database for use by all Florida law enforcement officers under appropriate security." In his letter, Simon asked the Governor to postpone the implementation of such a database until the FDLE is directed to develop standards that ensure that only information about suspected criminal activity is entered into the database.
Here are some of the FDLE/DEM security recommendations:
- Restrict access to certain public records (i.e., drivers' licenses and arrest records) should the disclosure adversely affect on-going criminal investigations
- Detain immigrants on mere suspicion of terrorist activity
- Create a statewide database of suspicious persons
- Give law enforcement agencies the power to detain individuals believed to be in violation of immigration laws
- Expand state wiretapping and surveillance laws to mirror federal proposals that lessen the role of the judiciary
- Use highly invasive biometric technology to prevent driver's license fraud
- Provide immunity from civil liability for reporting "suspicious activity" regardless of whether the information is truthful
In these difficult days, it is important to look carefully at a range of possibilities to see which proposals balance security concerns with civil liberties. It is clearly essential that law enforcement track down all the heinous criminals who are responsible for the horrible attacks of September 11, 2001 and the recent anthrax mailings. However, we should not sacrifice our precious liberties in the name of security.
The government should determine whether national, state and local authorities are effectively using the extensive security and investigative powers they already possess before rushing to create new powers. There are immediate actions that can be taken to increase security without undermining basic freedoms and liberties. Despite statements by public officials that the events of September 11th will not be used to diminish liberty, our government has rushed to dramatically change our nation's laws.
As Supreme Court Justice Felix Frankfurter wrote in Joint Anti-Fascist Refugee Committee v. McGrath, "Secrecy is not congenial to truth seeking. . . . No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and the opportunity to meet it."
