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Monday, Nov 9, 2009
As war began last week, the Lawyers Committee for Human Rights issued a new report on the changes in law and government policy since Sept. 11. The report, a six-month follow-up to one the committee released on the first anniversary of the terrorist attacks, documents the ongoing erosion of "basic human rights protections in the United States, including fundamental guarantees central to our constitutional system."
Any such report must begin with the USA PATRIOT Act itself, which Congress adopted and Bush signed less than two months after Sept. 11. The act handed sweeping new powers to law enforcement, the military and U.S. intelligence agencies, and it blurred the traditionally clear lines that divided them. Among other things, it granted federal law enforcement officers broad authority to use wiretaps and other forms of electronic surveillance; it expanded the circumstances under which the FBI could conduct searches under the forgiving rules of the Foreign Intelligence Surveillance Act rather than under the stricter tests of the Fourth Amendment; and it gave the president the power to confiscate property of those believed to be attacking the United States.
Scattered voices of dissent raised concerns that these new powers might be abused. A year and a half later, it is hard to know whether the critics were right. By and large, the Justice Department has refused to provide Congress with information about its use of the PATRIOT Act tools. What is clear, however, is that Justice Department officials and FBI agents have dramatically increased their use of secret searches and other clandestine techniques since the PATRIOT Act was passed.
The Washington Post reported Monday that Ashcroft has authorized more than 170 secret searches and/or wiretaps -- more than three times the total authorized over the past 23 years by all other attorneys general combined. Meanwhile, the Post reported, FBI field offices have issued scores of so-called national security letters, a PATRIOT Act tool that requires businesses to provide the FBI with information about an individual's finances, telephone calls, e-mail messages and the like -- all without a warrant and all without prior court approval.
A few weeks after he signed the PATRIOT Act, Bush took matters a step further when he signed an executive order requiring that noncitizens suspected of participating in or supporting acts of terrorism be detained by the military and tried by military tribunals rather than in federal courts. At about the same time, the Justice Department took the position that it was entitled to eavesdrop on the conversations between inmates and their lawyers in order to protect against future acts of terrorism.
Of course, not all civil liberties received such cavalier treatment. Although the PATRIOT Act allows the FBI to obtain records showing what books you purchased at the local bookstore or checked out from the library -- a suspect's reading habits might suggest an unsettling interest in the architecture of tall buildings -- Ashcroft has insisted that the FBI cannot review the records of gun-purchase background checks in the course of a terror investigation.
As the initial sense of panic cooled in the months after Sept. 11, federal courts began to stand up against some of the incursions on the civil liberties of terror-related suspects. Georgetown University law professor David Cole initially saw that as a hopeful sign; in an article he wrote for the Nation last summer, he suggested that the shock of 9/11 had "given way to a renewed interest for the rule of law."
It didn't last. This week, the Supreme Court refused to hear a case in which the American Civil Liberties Union challenged the Justice Department's use of wiretaps and other forms of surveillance authorized by the Foreign Intelligence Surveillance Act in domestic criminal prosecutions.
Earlier this month, the U.S. Court of Appeals for the D.C. Circuit held that more than 600 detainees in U.S. military custody at Guantánamo Bay have no right to challenge their confinement in U.S. courts. So long as the detainees are noncitizens who were captured outside the United States during some sort of military operation and are now being held outside the United States, the courts of the United States "are not open to them." Although the Guantánamo Bay Naval Base where the detainees are being held is inarguably controlled by the U.S. military, the court held that it was outside the reach of the federal courts because the United States merely leases the land from Cuba.
In the open-ended war on terror -- with its infinitely flexible definitions of "enemy" and "field of battle" -- the decision puts incredible power in the hands of the U.S military. Under the ruling, U.S. Special Forces could secretly kidnap, say, a British editorial writer who opposes the war on Iraq. And so long as they took him to someplace like Guantánamo -- rather than to a military prison in the United States itself -- they could keep him there forever if they wished. A U.S. court could do absolutely nothing about it.
Cole finds the decision shocking -- and yet not. "If you look at history," he says, "courts in times of crisis defer to the executive." Although Cole says such wartime decisions frequently include "rules" that prevent abuses of civil liberties once the war is over, the potentially unending nature of the war on terror may undercut any such protections.
And in the meantime, allowing the administration to have its way now may embolden Ashcroft and others to seek new tools for the war on terror -- even if those tools come at the expense of civil liberties that would otherwise be held sacrosanct.
Such may be the case with the Domestic Security Enhancement Act. Like the PATRIOT Act, PATRIOT II is a collection of provisions that touch upon virtually every aspect of law enforcement in the United States and abroad. Among other things, it would:
Although PATRIOT Act I and many of the other more publicized efforts in the war on terror have focused on the rights of foreigners and of aliens living in the United States, the Domestic Security Enhancement Act aims much more squarely -- and broadly -- at the rights of U.S. citizens. Cole and others believe that this shift of focus may finally cause Congress to put on the brakes. Indeed, when reliable administration supporters like Bill O'Reilly and the American Conservative Union raise serious concerns about a proposal, as they have with PATRIOT Act II, there may be hope that Justice Department officials will exercise some restraint in what they propose, or at least that Congress will be emboldened to ask hard questions before giving in.
There have been some civil liberties victories in recent months, particularly where the executive branch has reached for powers that would intrude on the privacy rights of individual Americans. Ashcroft last year asked Congress for authority to launch Operation TIPS -- a program that would have turned the nation's letter carriers and meter-readers into junior spies -- but Congress turned him down.
Earlier this month, the Senate Commerce Committee approved a measure that will require Tom Ridge to report to Congress on the civil-liberties impacts of CAPS II, a government computer program designed to assign terrorist risk levels to everyone who boards a commercial airliner.
And last month, Congress placed a hold on any funding for the Total Information Awareness program, a Defense Department plan to build a massive database on U.S. citizens based on everything from their credit card statements and medical records to the words they type into Internet search engines. Perhaps members of Congress found the privacy intrusions too much to stomach, or maybe they just couldn't believe that the administration was really suggesting that the Defense Department's John Poindexter -- the former Reagan National Security Advisor who lied to Congress about the Iran-Contra affair -- should actually be the man who is trusted with the private information of every American citizen. Either way, they found the temerity to say no to the program.
But with the troops on the battlefield in Iraq and the fear of terrorist reprisals back home, it is hard to believe Congress will hold off the administration forever. If U.S. soldiers are killed in substantial numbers or if terrorists strike at U.S. targets, members of Congress will feel the need to stand with the troops, with the president, and with "us" instead of "them." That may mean standing with John Ashcroft as well.
"The real danger to our liberty comes from politicians wanting to look like they are doing something in a time of crisis," said the ACLU's Edgar. "Unfortunately, it's inevitable that there will be politicians, including politicians in the Justice Department, who aren't really looking to make us safer but to take advantage of the situation."
