The War on Terrorism
The USA PATRIOT Act has given the government some sweeping powers. Proposed programs such as the TIPS (Terrorism Information and Prevention Systems) and TIA (Total Information Awareness) that encourage civilians to observe other Americans have echoes of Stalinism. An initiative allowed by the Foreign Intelligence Surveillance Act has resulted in an increased number of requests to use clandestine observation devices. This use is legal if the request has been approved and authorized by a panel of federal judges. People do not have to be told that they are being observed. Furthermore, the standard needed for getting approval for a search or surveillance is that there need only be a slight suspicion that illegal foreign intelligence activities are possible (Schulhofer 2003 79).
Other intrusive government activities that have implications for civil liberties are investigative methods based on phone calls that have been updated and applied to e-mail. A "Pen-register" gets the phone numbers placed for outgoing calls. A "trap and trace" records the numbers from incoming calls. In either of these cases, the phone number can be identified with a person and usually an address. However, when these methods are used on e-mail, the content of the message is also vulnerable to interception.
New regulations allow these methods to be requested if the information needed is "relevant to the investigation" and not if there is a "probable cause" that something illegal is going on (Sullivan 2003 138). Again, this is a lowering of the standard that is similar to that allowed under the Foreign Intelligence Surveillance Act.
The most controversial aspects of new legislation passed to fight the War on Terror concern the detention and trials of people captured in the prosecution of this war. The current administration uses the descriptive status of "enemy combatant" instead of what many see as the appropriate legal status of "prisoner of war", a category that can include military and civilians. There is, however, a precedent for President Bush's designation of certain individuals as "enemy combatants" who are eligible for trial by a military tribunal. Lincoln, in a Proclamation of September 24, 1862, said that people who were involved in "disloyal practices" were subject to trial by military commission (Hanchett 1983 63). The basic conflict is the source of authority for the President's declarations. Attorney General John Ashcroft argued that the President's power came from his position as Commander-in-Chief (Fisher 2005 167). Ashcroft further claimed that only the President had the authority to order these tribunals and that the Congress had no power to act in this area, a statement that is very controversial.
President Bush's Military Order (November 13 2001) had similarities to Franklin D. Roosevelt's order concerning the German saboteurs. In neither case was there judicial review. The final review was by the President. Roosevelt's order applied to the specific acts of a known group of people, whereas the Bush order applies to a much larger group that can include citizens as well as non-citizens. Definite proof of a crime is not necessary for detention, only a "reason to believe" someone is a member of al Qaida, has engaged in or plotted terrorism or has helped those who are terrorists. (Fisher 2005 168-169). The quality and reliability of the information used to detain people can be poor. Many individuals have been charged on the basis of reports in the Mobbs Declaration, which is a compilation of accounts gathered from detainees. No distinction is made between verified stories and rumors. Because some of this information might have been gathered from informants who were under torture, stress or duress, the validity of a particular accusation is difficult to gauge. The arrested person is also not able to confront his accuser, find the specific allegation or give evidence to oppose the claims.
Certain groups have also been listed as either supporting terrorism or as fronts for terrorists. People with connections to these organizations also come under suspicion. An example of the difficulties in assessing whether someone is helping terrorists occurred recently in Houston. A mosque, generously supported by the former Houston Rockets basketball player, Hakeem Olajuwon, was accused of giving aid to terrorists. The mosque, which donates a lot of its resources to a large number of charitable organizations, had given $80,000 to a group that had been listed as a terrorist front organization. No prosecutions were made (Hedges 2005 A23). This list of terrorist organizations has a parallel with the Attorney General's list of the McCarthy era. Once the name of a group is on a list, it is difficult to remove it and no discrimination is made between the nature of the group at different times.
Once the accused person comes before a military tribunal, he faces a judicial process that is different from a civil trial. All members of a military tribunal are officers in the military, with the possible exception of the defense attorney, who can be a civilian and is hired at the expense of the defendant. There are three to seven commissioned officers on the tribunal, which corresponds to the jury in a civil case. The presiding officer, who determines what evidence is admissible, must be a judge advocate from any of the military services. The trial is open to observers, although parts may be closed for security reasons. A two-thirds majority is necessary for conviction and a death sentence must be the unanimous verdict of a seven member panel. The decision is then reviewed by a three person committee appointed by the Secretary of Defense. Further review is provided by the Secretary of Defense and by the President. (Fisher 2005 180). This review process puts excessive power into the executive branch. If a person does have legal counsel, he can not meet privately with his lawyer. An observer must be present to avoid the danger of the accused being able to pass along information concerning terrorism.
The potential for infringement of civil rights increases as soon as a person is classified as an enemy combatant, a time well before the need for military tribunals. Both citizens and non-citizens may receive this designation and may be arrested and detained after being apprehended either on a foreign battlefield or in the United States. The reasons for an arrest include anything that relates to terrorist activity, a broad category that can include acts ranging from actually detonating a bomb to giving money to an organization that might have connections with groups identified as supporting terrorism (Chang 2002 62). Once a person is arrested and detained he enters a shadowy realm of secrecy. He need not be given the grounds for his arrest, his name is not released, and he has no access to legal counsel. Therefore, neither he nor any other party can know that he has been arrested, can learn of the charges against him or contest the evidence. The detention is indefinite. One of the purposes of detention for a subject who is considered to be material witnesses is to give the government time to question him about terrorist activities. The secrecy of the imprisonment is conducive to illegal methods of questioning and illegal conditions of imprisonment. Information obtained under these circumstances may lead to further unjustified arrests and detentions.
Other questions concern who is eligible for trial in civil courts and who is subject to a trial by a military tribunal. Citizenship or non-citizenship and the place a person was captured are factors that influence the method of trial. In any of these situations, the definition of "enemy combatant" or "unlawful combatant" is the same - a person who does not follow the rules of war (Fisher 2005 201). He can be detained for the duration of the war or conflict. In a situation such as the War on Terrorism, in which the end of the conflict can not be defined, there is the possibility that an individual could be detained indefinitely.
Citizens, non-citizens and resident aliens have different legal protections. The U.S. Code (4001a) says that "no citizen may be imprisoned or otherwise detained… except pursuant to an Act of Congress" (Fisher 2000 222). The Bush administration has argued that the President has the authority to detain enemies during wartime. This authority comes from the Authorization for the Use of Force Act, signed on Sept 18, 2001, shortly after the attacks of September 11. The act's main objective was to authorize the President to engage in military action in Afghanistan, but it also gave him the power "to use all the necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided those (who committed)" acts of terrorism (Avalon project, AUFA). The "necessary and appropriate" phrase is the basis for the Presidential power to detain individuals. However, both citizens and non-citizens, if apprehended in the United States, should be eligible for writs of habeas corpus. Non-citizens arrested on the grounds of having engaged in terrorist activity are subject to deportation and may be held indefinitely pending a hearing that would result in an order that they leave the country (Chang 2002 64). If racial profiling is used, innocent people can become enmeshed in the arrest process.
Non-citizens apprehended in a foreign country have no rights to protection under United States Law. This precedent was established in Eisentrager v. Johnson (1949). Twenty-one enemy aliens were convicted by a military tribunal in China of crimes that violated the Laws of War. The Supreme Court ruled that their cases were not eligible for review by a United States civil court because the individuals had committed the crimes outside the United States and had never been imprisoned in the United States (Fisher 2005 155). Therefore, they had never been under United States sovereignty and did not have recourse to the federal legal system. The unusual status of the Guantanamo Naval Base led the Bush administration to argue that the Eisentrager precedent was valid in the cases of enemy combatants who were seized abroad and were detained at Guantanamo. Although the United States has perpetual control of the base through a lease drawn up after the Spanish American War, and the base is subject to United States military control, the United States does not own the land and Cuba retains sovereignty.
Since September 11, 2001, civil courts have been used to try those accused of crimes related to terrorist threats. The most prominent case has been the trial of Zacharias Moussaoui, who was arrested in Minnesota after he had paid a large amount of money in cash for lessons in a flight school. He was subsequently accused of being the twentieth hijacker, a charge that was later withdrawn. Moussaoui's trial was moved to a Virginia federal court. The parts of his trial that included testimony on classified matters were held in camera, a practice that shows that civil courts as well as military tribunals can protect legitimate government interests for secrecy concerning matters of national security. After many delays, he entered a guilty plea to multiple counts of terrorist activity (CNN web site). The Government plans to ask for the death penalty when the sentencing part of the trial is reached in January 2006. The use of these courts strengthens the arguments of those who say that most of the acts included in the President's Military Order could be just as effectively tried in a non military setting. Those tried have included both citizens and non-citizens.
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