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Civil Liberties in War Time
From Abraham Lincoln’s suspension of the writ of habeas corpus during the Civil War to the internment of Japanese-Americans during World War II, Americans have witnessed periodic attempts by the government to restrict the civil liberties of its citizens during times of crisis. The attacks on September 11, 2001 and the subsequent response of the Bush Administration have reignited the debate about the proper balance between security and civil liberties in a time of war. In the name of fighting international terrorism, the Bush administration implemented programs that expand government surveillance, give more powers to law enforcement, restrict the rights of the accused, and specifically target Arab and Muslim immigrants. These circumstances have complex social and ethical implications on civil liberties in the larger context of the balance of powers.
During the Cold War, U.S. government spying on its citizenry became widespread. J. Edgar Hoover’s FBI kept extensive files on thousands of Americans. In 1956 the FBI began a covert surveillance program (COINTELPRO or Counter Intelligence Program) of communist groups in the United States that soon expanded to include a wide variety of political organizations with the intent not just to monitor, but also to disrupt and hinder their actions.1 Groups as diverse as the Ku Klux Klan, the American Nazi Party, the American Indian Movement, the Student Non-Violent Coordinating Committee, the Black Panther Party, the National Parent Teacher Association, and student revolutionaries the Weather Underground all fell under the purview of the program.2 Evidence of alleged extra-marital affairs was even used by the FBI in an unsuccessful attempt to blackmail Martin Luther King Jr. into ceasing his civil rights works.3 Following news reports exposing the secret program, and the resulting public outcry, Sen. Frank Church convened a Senate Select Committee to shed light on rampant government misuse of surveillance. One result of this wave of reform was the Foreign Intelligence Surveillance Act (FISA), which explicitly prohibits wiretapping of American citizens without first obtaining a court-ordered warrant.4
Despite FISA’s wiretapping prohibition, President Bush signed an executive order following the 2001 attacks authorizing the National Security Administration to wiretap phone calls made between Americans and persons in other countries. The program remained secret until the story was broken by the New York Times in December 2005.5 Critics (including the American Bar Association, the American Civil Liberties Union and many others)6 have charged that the program is an unacceptable infringement of basic civil liberties and that it falls afoul of the FISA law.7
Defenders of the program have argued that it is a vital component of the War on Terror and that the government has a compelling rationale for wiretapping suspicious international calls. They argue that both the President’s inherent constitutional powers and the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 provide legal justification for the enhanced surveillance measures.8 Prospective legislation introduced by Sen. Arlen Specter (R-PA)9 may have the effect of re-establishing oversight of the wiretapping by Congress and the courts; however, the proposed law has been criticized10 by many for not providing true judicial oversight and for acquiescing to the President’s attempt to expand Executive powers.11
The existence of a secret wiretapping program has led some to speculate on the existence of other secret surveillance programs.12 In June 2006, several news outlets reported that the Society for Worldwide Interbank Financial Telecommunication (SWIFT)13, an independent banking entity, had been providing the U.S. government with data on international financial transactions used to uncover terrorist financial networks.14 This program prompted fewer concerns over its legality, but sparked criticism of governmental leakers and of the news media (particularly of the New York Times) for revealing secret programs said to be vital to national security.15
Privacy and Security
Increased government surveillance of Americans leads to the question: at what point does a citizen’s right to privacy give way to the need to provide security for the nation? The Fourth Amendment of the Constitution provides protection against “unreasonable searches and seizures” without “probable cause.”16 The courts have traditionally struck a balance between these protections and the need to investigate and prosecute crimes. In addition to the controversial NSA wiretapping program, advances in technology and recent changes to the law have affected this balance as well. Changes in the methods used to investigate and collect information about terror suspects also have an impact on the civil liberties enjoyed by all citizens.
The USA PATRIOT Act, which was passed by Congress with very little debate17 in the month following the September 11th attacks, and was renewed in March 2006, makes it easier to investigate crimes related to terrorism.18 The PATRIOT Act increased penalties for terrorism-related crimes, allowed information sharing between different branches of government, and expanded the use of certain tools in terrorism investigations that had previously been restricted by either the FISA court or judicial review. These tools include “roving” wiretaps and warrants (which are not restricted to a specified place and time), “sneak-and-peak” warrants (in which the target is not immediately informed of the investigation) and National Security Letters (more below).
Several features of the PATRIOT Act have come under criticism. Most notably, Section 215 allows investigators to search information held by any third-party (a public library, a travel agent, the holder of one’s medical records, etc.) without informing the person under investigation. The federal government no longer has to claim probable cause and obtain a search warrant, but need only assert to a FISA judge that the search will aid a terrorism investigation. Even fewer restrictions are placed on the use of National Security Letters (section 505), which require individuals, groups, and corporations to turn over requested information to the government and gag them from speaking about the investigation. Such letters may be issued by FBI field offices on the assertion that the information would be “relevant,” and the letters are not subject to judicial review. Since the passage of the PATRIOT Act, the use of National Security Letters has increased 100 fold to approximately 30,000 per year, raising concerns that letters are being used to generate leads and not just to follow them up.19 The ACLU has filed suit to challenge the indiscriminate use of such letters.20
Defenders of the PATRIOT Act claim that it enacts a handful of common sense changes to the law and relaxes some judicial restrictions to enable more efficient investigation of terror suspects.21 Several of the law’s provisions have previously been allowed in racketeering and drug trafficking investigations; as Sen. Joe Biden (D-DE) put it, “ What's good for the mob should be good for terrorists .” The Bush administration also claims the Act has been instrumental in breaking up terror cells in Portland, Detroit, Buffalo, Seattle and northern Virginia; in freezing $136 million in assets used to finance terrorism; and as of June 2006 has led to criminal charges against 401 individuals and the convictions of 212.22 However, some observers have disputed these numbers, claiming that the legal war on terror has actually achieved very few convictions for substantial charges of terrorism.23
Prior to 2001, government monitoring of Internet communication was essentially unregulated; laws regarding telephone wire-tapping were applied inconsistently to Internet traffic. The PATRIOT Act stipulated that certain phone wiretap rules could be applied to the Internet in cases other than terrorism and without a warrant, but that such warrantless intercepts may not be used to collect the “content” of the message. This measure is typically thought to allow collection of email addresses and Web URLs, but not the body of the email or the text of the webpage. By forbidding content collection, this section of the PATRIOT Act may have strengthened existing privacy barriers, although there remain civil liberties concerns especially given the vagueness of the term “content” and the large amount of personal information that may be obtained from “non-content” Internet traffic.
Much of the controversy surrounding the Internet provisions of the PATRIOT Act centered on whether or not it allowed the use of Carnivore (later renamed DCS 1000), the FBI system used to monitor Internet traffic through an Internet service provider (24). The FBI claimed it filtered the traffic only to extract information approved by court warrant, although details of the process were kept secret. It was later reported that the FBI stopped using Carnivore in favor of commercially available software (25). A more ambitious data mining project, dubbed Total Information Awareness, was scrapped in 2003 after Congress cut its funding (26).
As surveillance measures increase and privacy protections wane, law enforcement has also started to use individuals’ race and country of origin as indicators of their likely affiliation with terrorist activities. Racial profiling is the controversial notion that members of certain racial groups are more likely to commit certain crimes and that law enforcement officers are therefore justified in targeting members of that group for increased attention. Since September 11th, Muslims and individuals of Arab descent, especially non-citizens, have been subjected to more intense scrutiny from law enforcement and immigration authorities.31 Some commentators32 find this sort of racial profiling to be a common sense way of efficiently securing our nation; others find it unfair, un-American and ineffective.33 The issue is not confined to the arenas of national security, either. There is statistical evidence that African-Americans and Latinos are stopped and searched by police officers more often than members of other groups, although the legitimacy and effectiveness of such methods are often disputed.34
From 2002 to 2003, the Department of Justice implemented the NSEERS program which required non-citizens from Arab and Muslim nations to re-register with the government.35 Of the approximately 80,000 people who registered under NSEERS, deportation proceedings were begun for 13,000 people and as many as 1,200 non-citizens were arrested and detained without access to legal counsel.36 Of those 1,200 detainees, most were charged with immigration violations and deported. Only a very small number were even suspected of being involved with terrorism, and to date none have been charged as such. It is believed that the last individuals detained under the program have been released, but due to secrecy surrounding the cases, no one can confirm this fact.37
Rights of the Accused and Prisoners of War
Since 2001, the Bush administration has attempted to radically restrict the rights and liberties of both citizens and non-citizens suspected of terrorism through lengthy detentions in prison as well. In the course of the wars in Iraq and Afghanistan, and through efforts to stop domestic terrorism, the U.S. government has apprehended hundreds of people suspected of being associated with terrorism. The Bush administration claims these detainees are not “prisoners of war” with protections under the Geneva Conventions, but are instead “unlawful enemy combatants.”38 Arguing that a war on stateless terrorists, rather than an army of uniformed national soldiers, requires a new approach to holding prisoners, a system of military tribunals was set up to assess these detentions. This claim has been refuted by a series of Supreme Court decisions, although a reassessment of the laws handling terror cases is still being debated by Congress.
Two American citizens, Jose Padilla and Yaser Hamdi, have been held as “enemy combatants” by the Bush administration. Padilla was arrested in Chicago in May of 200239 after returning from the Middle East and was accused of plotting to detonate a “dirty bomb.”40 Hamdi was captured in Afghanistan in 2001 and was accused of fighting with the Taliban against coalition forces. Both were held for over three years without formal criminal charges being brought by the government. In 2004, the Supreme Court ruled in Hamdi v. Rumsfeld that such defendants were entitled to access to counsel and the opportunity to petition their case before an impartial court.41 Rather than pursue the Hamdi case further, the government brokered a deal in which Hamdi renounced his U.S. citizenship and was deported to Saudi Arabia and prohibited from traveling. Padilla has since been convicted in a U.S. court on federal terrorism support charges, although he was not convicted of the more serious crimes of which he was first accused.42
The situation for foreign nationals suspected of terrorist activities is even murkier. The United States maintains a group of military prisons used for holding persons captured in Afghanistan, Iraq or elsewhere, who are suspected of being involved with Al Qaeda, the Taliban or other terrorist organizations. The military prisons include Guantanamo Bay in Cuba and the Bagram Air Force Base in Afghanistan. A recent decision by the Supreme Court in Hamdan v. Rumsfeld struck down these tribunals as unconstitutional.43 Legislation is now being considered in Congress to find an acceptable alternative.
A 2005 report by the Washington Post claimed the existence of a wider network of “black sites” in Eastern Europe and elsewhere that are used for detaining enemy combatants.44 The United States has been strongly condemned for the alleged use of torture at these prisons to extract intelligence and for the use of “extraordinary rendition,” the practice of deporting suspects to countries with fewer restrictions on treatment of prisoners.
The Balance of Powers
Some critics of Bush administration policies regarding civil liberties make the argument that, in general, programs like these may indeed be necessary to maintain national security, but that proper oversight by Congress and the court system is essential to ensuring that abuses, like those of the COINTELPRO program, do not recur.49 To these critics, the secret programs represent an unconstitutional expansion of the powers of the Executive at the expense of the other two branches of government, and a level of secrecy that is both unprecedented and unhealthy.50 These issues are beginning to be debated by Congress and the courts, although the final shape of new laws regarding civil liberties have yet to be worked out.51
A wide range of opinions exist regarding which of the above issues are necessary restrictions towards keeping our nation safe and which are unacceptable infringements on our liberties. Given the controversy surrounding many civil liberties issues, a healthy national and congressional debate ought to inform the next steps we take in striking the right balance. In 2006 we vote for a new Congress, and in 2008, for a new President, both of which provide citizens the opportunity to make their voices heard on these vitally important issues.
Submitted by: Tim Donaghy, Fall 2006
Originally submitted by: EJ Stern, Summer 2002
Special thanks to Marc Rotenburg of the Electronic Privacy Information Center (EPIC) for reviewing this issue brief.
(1) “COINTELPRO: The FBI’s Covert Action Programs Against American Citizens,” Final Report of the Select Committee To Study Governmental Operations with respect to Intelligence Activities, Book III, United States Senate, April 23, 1976.
(2) “The Weather Underground,” a film by Sam Green and Bill Siegel.
(3) “Dr. Martin Luther King, Jr., Case Study,” Final Report of the Select Committee To Study Governmental Operations with respect to Intelligence Activities, Book III, United States Senate, April 23, 1976.
(4) “Foreign Intelligence Surveillance Act,” Federation of American Scientists. Online at http://www.fas.org/irp/agency/doj/fisa/.
(5) James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” New York Times, December 16, 2005.
(6) “Domestic Electronic Surveillance for National Security Purposes,” Resolution 302 of the American Bar Association, February 13, 2006.
(7) “Keep America Safe and Free,” American Civil Liberties Union. Online at http://www.aclu.org/safefree/spying/index.html.
(8) “Authorization for Use of Military Force,” S. J. Res 23
(9) Charles Babington, “Specter Proposes NSA Surveillance Rules,” Washington Post, February 26, 2006.
(10) “Wiretap Surrender,” Washington Post Editorial, July 15, 2006.
(11) Edward Lazarus, “Why the ‘Compromise’ Foreign Surveillance Wiretap Legislation Pending in Congress Is No Compromise,” FindLaw, 2006.
(12) Charles Babington, “Hoekstra Urges Bush To Impart Intelligence Details,” Washington Post, July 10, 2006.
(13) Eric Lichtblau and James Risen, “Bank Data Is Sifted by U.S. in Secret to Block Terror,” New York Times, June 23, 2006.
(14) Society for Worldwide Interbank Financial Telecommunication, http://www.swift.com/
(15) Gabriel Schoenfeld, “Has the New York Times Violated the Espionage Act?”, Commentary Magazine, March 2006.
(16) “U.S. Constitution: The Fourth Amendment”, FindLaw.
(17) The USA PATRIOT Act, Online at http://fl1.findlaw.com/news.findlaw.com/cnn/docs/terrorism/hr3162.pdf.
(18) “The USA PATRIOT Act,” Electronic Privacy Information Center. Online at http://www.epic.org/privacy/terrorism/usapatriot/.
(19) Barton Gellman, “The FBI’s Secret Scrutiny,” Washington Post, November 6, 2005.
(20) “Challenge to the ‘National Security Letter’ Authority,” American Civil Liberties Union. Online at http://www.aclu.org/safefree/patriot/17458res20040929.html.
(21) “Note to Congress: The Patriot Act is vital to protecting national security,” Coalition for Security, Liberty and the Law.
(22) “Waging the War on Terror,” U.S. Department of Justice, Online at http://www.lifeandliberty.gov/subs/a_terr.htm.
(23) “Terrorist Trials: A Report Card,” The Center on Law and Security, February 2005.
(24) “Carnivore,” Electronic Privacy Information Center. Online at http://www.epic.org/privacy/carnivore/.
(25) “FBI Ditches Carnivore Surveillance System,” Associated Press, January 18, 2005.
(26) “Terrorism Information Awareness,” Electronic Privacy Information Center. Online at http://www.epic.org/privacy/profiling/tia/.
(27) “National ID Cards and REAL ID Act,” Electronic Privacy Information Center. Online at http://www.epic.org/privacy/id_cards/.
(28) The REAL ID Act
(29) Declan McCullagh, “FAQ: How REAL ID will affect you,” CNET News.com, May 6, 2005.
(30) Robert Hutton, “UK Plans to Issue First ID Cards in 2008 Following Vote,” Bloomberg.com, February 14, 2006.
(31) “ Threat and Humiliation: Racial Profiling, National Security, and Human Rights in the United States,” Amnesty International USA, September 2004.
(32) Charles Krauthammer, “Give Grandma A Pass,” Washington Post, July 29, 2005.
(33) Matthew Yglesias, “Profiles Encouraged,” American Prospect Online, August 2, 2005.
(34) Racial Profiling Data Collection Resource Center.
(35)“ Fact Sheet: Changes to National Security Entry/Exit Registration System (NSEERS),” U.S. Department of Homeland Security, December 1, 2003.
(36) “ Justice Department Report Confirms 9-11 Detainee Abuses,” Human Rights Watch, June 2, 2003.
(37) Anushka Asthana, “Domestic Detainee from 9/11 Released,” Washington Post, July 21, 2006.
(38) “Reference Guide to the Geneva Conventions,” Society of Professional Journalists.
(39) “Profile: Jose Padilla,” BBC News, November 22, 2005.
(40) “Hamdi voices innocence, joy about reunion,” CNN.com, October 14, 2004.
(41) “Docket: Hamdi v. Rumsfeld,” Center for Constitutional Rights.
(42) “Terror Suspect Padilla Charged,” CNN.com, November 22, 2005.
(43) “Case Detail: Hamdan v. Rumsfeld,” Washington Legal Foundation.
(44) Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” Washington Post, November 2, 2005.
(45) Dana Priest, “Wrongful Imprisonment: Anatomy of a CIA Mistake,” Washington Post, December 4, 2005.
(46) “Maher’s Story in Brief.” Online at http://www.maherarar.ca/.
(47) Tania Branigan and Vikram Dodd, “Afghanistan to Guantánamo Bay -- the story of three British detainees,” The Guardian, August 4, 2004.
(48) “Who are the Guantanamo detainees? Sudanese National: Sami al Hajj,” Amnesty International.
(49) Robert A. Levy, “NSA Redux,” Cato @ Liberty, May 14, 2006.
(50) Glenn Greenwald, “Rechecking the Balance of Powers,” In These Times, July 21, 2006.
(51) Deb Riechmann, “Spy program spurs debate over the balance of powers,” The Boston Globe, December 21, 2005.
Allegations of Unlawful Detentions
- Khaled Masri, a German citizen, claims to have been abducted by CIA agents and held for five months in Afghanistan before it was realized he had no connection to terrorism.45
- Maher Arar, a Canadian citizen, claims he was deported to Syria after being questioned during a layover at a U.S. airport, imprisoned for many months, and tortured.46
- The “Tipton Three”, three British citizens, were detained in Guantanamo for three years before being released without charges, have complained of abuse at the hands of American soldiers.47
- Sami al Hajj, a Sudanese citizen working as a cameraman for al-Jazeera, was detained in Pakistan in 2002 while attempting to cover the war in Afghanistan.48 He has been held in Guantanamo Bay without being charged with a crime, and has claimed he was tortured and witnessed the desecration of the Qur’an by American soldiers.