CIVIL LIBERTIES AND NATIONAL SECURITY"A true union should not have to be held together at the point of a bayonet" (Robert E. Lee)
    There is an old Roman maxim which says "Inter arma silent leges" (During times of war the laws are silent) which expresses the idea that sometimes, in the name of national security, the law's less important protections take a back seat to the need for greater protection.  Good governance shows its respect for freedom even while it has to take away some lesser protections.  It is difficult to say how much adjustment in civil society is needed for national security purposes, and which civil liberties, if any, should have their progress curtailed or retracted in the name of national security.  Civil rights and civil liberties have always expanded and contracted throughout history, with contraction occurring most in times of political instability, rapid industrialization, massive immigration, union extremism, economic busts, periods of national emergency, and war.  National emergencies and war tend to be times when the demands of national security take precedence over other demands.  It is an historical fact that for national security reasons, the U.S. government has, at certain times "tightened up" on things, but questions remain.  How tight?  At who's expense?  There are no easy answers, no formula, and no metrics.  There is only the principle that a government should be neither too strong for the liberties of its people nor too weak to maintain its own existence, and despite all the polarized arguments that this issue prompts, resolution of the issue is like a book that we're all writing as we go along.
    Of most immediate interest is how the war on terrorism affects civil liberties.  There is much more, of course, to the history of civil liberties and national security, and an extended discussion on that history would surely involve talking about the constitutional foundations of the concept of substantive due process as well as other constitutional structure issues.  Most experts on the subject usually start with the sixteen or so controversial sections of the USA Patriot Act (Public Law 107-56), where the websites Patriot Debates or NPR: Key Controversies are good starting places.  It is inevitable that the Patriot Act will stand in history as a culminating point of some sort.  A select few key controversial sections (provisions) are as follows:
  • Section 206 Roving Wiretaps: allows one wiretap authorization to cover multiple devices, such as a cell phone, laptop, and/or desktop computer. In order to move from one device to another, the government must ensure that the subject of the surveillance identified by the warrant currently uses the device. However, the government does not need to identify the suspect by name because a "John Doe" connection can be made by use of an undercover operation or other means of identification. The government also does not have to show that that individual is connected with a foreign power, terrorism, or any criminal activity, but is only a targeted "individual of interest" (Paye 2006).
  • Section 213 Sneak and Peek Warrants: allows authorities to search a home or office without immediately notifying the target of a probe. Authorities must eventually notify the target, however. Once inside, authorities can take photographs, examine computer hard drives, and install keystroke logging devices or other policeware such as Magic Lantern.
  • Section 215 Access to Records: allows authorities to obtain “any tangible thing” including books, records, papers, documents, and/or other items sought in connection with a terrorist investigation. The most controversial part of this section is the so-called "Library provision" which allows authorities to see what someone has checked out of a library (or bought at a bookstore).  Another controversial part is Article 505 National Security Letters, a clause which allows access to medical records, financial data, travel logs, casino records, and rental agency records, as well as library records, but privileged relationship information (doctors, lawyers, priests) is still sacrosanct. National security letters are supposed to be used primarily for counter-espionage purposes.
  • Section 218 Foreign Intelligence Wiretaps and Searches: allows secret searches as well as real-time electronic surveillance of a residence or office, without notification, if there is a "reasonable presumption" to believe that the residence or office contains information relative to the activity of an agent of a foreign power, with "agent of a foreign power" defined quite loosely as someone who is under mere suspicion as more or less linked to terrorism.
    There are many starting points in the literature, but the best one is by Baker and Stake (2005), utilizing the following framework.  There exists a tradeoff (or "delicate balance") between civil liberties and national security as a "national agenda" phenomena.  There is much merit to this approach.  The agenda approach is not a matter of distinguishing ideologies such as conservative vs. liberal, hawk vs. dove, or eagle vs. owl, but is instead a matter of situating when and where one branch of government abdicates its responsibilities while another part ascends to power and privilege.  Five players are important to watch: the President, the Congress, the Department of Defense, the Supreme Court, and the Attorney General.  The most pivotal player may be the Attorney General because if this party abdicates a civil liberties commitment, the other parties will almost certainly side with the Department of Defense and executive power, but this depends of course on how Congress and the Supreme Court exercise their responsibilities.  Even in the face of national emergency powers, the rule of law is vitally important to maintain as is the Constitutional principle (in the Preamble) of always advancing and/or moving forward on civil liberties ("to secure the blessings of posterity").  It is this advance which should only be curtailed or slowed down.  Civil liberties are never to be reversed or lost.  Any retraction in civil liberty is supposed to be only temporary.  The national agenda refers to which party captures the "heart and soul" of the nation, or in other words, which party best expresses the "stress and strain" inherent in the lived balance that is the ordinary tension of an experiment in self-governance.  You can't have absolutist positions in a constitutional democracy, and no serious party is ever going to advocate an absolutist position.  All they can do is suggest or hint the relative direction they think the balance ought to go.
    The best case for a strong executive is made on grounds of urgent necessity.  A strong leader is one who does what the people would want if they were apprised of all the circumstances that the leader is aware of.  Civil liberties are not inalienable or natural rights, but are always "constituted" and subject to circumstances, tempo, and times.  An "executive" is, among other things, supposed to be a wise person, and a wise political leader knows how to both inspire the law and get the law obeyed.  They should do this NOT by drawing upon executive privilege or "prerogative" -- these are undemocratic terms associated more with royalty -- but, instead, the leader knows how to overcome the two main defects in the rule of law.  Those defects are: (1) the rule of law is inferior to the reason or living intelligence of wisdom on the spot by one person who can judge the particular circumstances; and (2) the rule of law, particularly when modified, must have energy imparted unto it in order for it to be enforced.  The powers to convoke the legislature and to correct its legislation should it become corrupt are the traditional reasons for executive privilege.  However, cooperation and capturing of the national agenda may be more easily accomplished by veto power and a legislative "hands off" approach to executive handling of foreign affairs.                 
    Consider the following two speeches as attempts to capture and express the national agenda:

Speech by Attorney General Ashcroft
"In this struggle, we must never forget who we face. Our enemies have placed themselves on the side of oppression and domination. They have lauched a campaign against innocent men, women, and children. Where they have gained power, they have extinguished political and religious liberty. Where they have ruled, they have enslaved women, strangled education, and sought to kill Americans whenever and wherever they could."
Speech by Supreme Court Justice Breyer
"Most importantly, we must search for alternatives that help avoid extreme positions. The first such position says that, insofar as war is concerned, the Constitution does not really matter. That is wrong. The Constitution always matters, perhaps particularly so in times of emergency. The second such position says that, insofar as Constitutional guarantees of freedom are concerned, war or security does not matter. That is wrong too. Security needs may very well matter, and play a major role in determining just where the proper constitutional balance lies."
    The easiest emergency action for most democracies to take in a national security crisis is to "crack down" on resident aliens.  This is easy to do since it doesn't involve any direct tradeoff for most citizens.  It only involves a tradeoff of someone else's security for our liberty.  It's not a fair thing to do, but empirical evidence suggests that all democracies do it, and it usually involves mobilizing the full extent of the criminal justice apparatus.  It's not a very good criminal justice strategy since it frequently alienates the very community one hopes to get informants from.  It also creates a sense of mistrust which has the unintended effect of prolonging the war, crisis, or emergency.  In addition, there is the distinct possibility of "spill-over" repression on regular citizens.  This has been the case when we look at historical examples of the practice.  Cohen & Wells (2004) point out three recent historical periods, all of which were wars, when civil liberties were curtailed for many aliens as well as Americans: World War I; World War II; and the Cold War.  During WWI, President Wilson's office used propaganda (George Creel) and raids (the Palmer Raids) to suppress dissent; during WWII (actually, from 1945-1975), the House Un-American Activities Committee conducted nothing less than witch-hunts for unpatriotic Americans; and the Cold War ushered in numerous methods of insidious discrimination and dirty tricks against Native Americans, college students, and hippies, e.g., COINTELPRO (1956-1971).  The September 11, 2001 attacks, the war on terrorism, and creation of the Department of Homeland Security which ensued, continued somewhat in this vein toward a pattern of intrusion into the daily lives of most Americans along with latent, unintended consequences for society.  Simple things, like travel, banking, and the postal service, were affected.  Strange things, like Cat Stevens being denied admission to the US, happened.  Violence (vigilantism) erupted, with a reported total of eight murders across the nation against "Middle Eastern looking" people, most of which were, unfortunately, aimed at innocent Sikhs, the case of Balbir Singh Sodhi being typical.  The rushed Patriot Act (October 2001) expanded police powers, allowed for more wiretapping of conversations and the surveillance of computers, and has become a focal point of concern over infringement of constitutional rights.  The 9/11 Commission Report (July 2004) was an alarming read about the breakdown of warning systems and the ease with which 9/11 terrorists were able to live, work, and freely move in the United States prior to their attacks.
    In the weeks following 9/11, the Justice Department started rounding up (mostly Arab and Muslim) suspects via a variety of methods.  To name three: (1) the Absconder Apprehension Initiative which detained at least 1,100 individuals who have ignored deportation orders; (2) a Special Registration Program (under NSEERS) which targeted another 2,747 individuals who failed to update their address changes; and (3) a Material Witness Program which produced at least 50 suspects considered to be a flight risk and have pertinent information about terrorism.  Accurate numbers are hard to come by, but best estimates (by Goldberg et al. 2003) are that about 5,000 people were rounded up (held in preventive detention) during the immediate post-9/11 period, and many are still in detention.  For others, the average length of preventive detention was only three weeks to a month.  Not until May 2003 did the government process criminal charges, and then only 5 out of 5000 were charged, and then only 2 convictions were obtained.  The government's use of secret immigration courts processed hundreds more people.  The USDOJ Inspector General's Report of June 2003 contained 21 critical recommendations regarding the treatment of 9/11 detainees, with samples as follows, along with the response:
  • lack of uniformity in determining a "subject of interest" which meets the criteria for detention (resolved by creation of a consolidated Terrorism Watch List (VGTOF) managed by the new Terrorist Threat Integration Center and the Terrorist Screening Center)
  • lack of timely communication to correctional agencies of revised "statements of interest" as to whether the FBI has a continued interest or not (resolved by processing more security clearances for officials of correctional agencies)
  • lack of any inter-agency Memorandum of Understanding (MOU) for information sharing about aliens who were simply encountered coincidental to a PENTTBOM lead (not resolved because encounters during a PENTTBOM lead were seen as the alien posing a danger and risk of flight and was thus a proper basis for pursuing detention)
  • lack of sufficient human resources and absence of deadlines to complete background investigations necessary to coordinate the detainee clearance process (resolved by expansion of the Joint Terrorist Task Forces and their annexes)
  • failure to reassess or revisit practices and policies when it became apparent certain problems existed (not resolved by respectful disagreement, pointing to the fact that regular bi-weekly meetings occurred at the Deputy or Chief of Staff level)
  • failure to raise significant legal concerns up the chain of command, particularly the policy of "hold until cleared" (not resolved by respectful disagreement, holding to the position that during a crisis situation, it is believed more critical to use the already established lines of communication)
  • lack of any meaningful special detainee classification status other than WITSEC for aliens arrested on immigration charges who are suspected of having ties to terrorism (resolved by creation of new BOP Management Interest Group 155 category)
  • failure to produce particularized assessments justifying highly restrictive conditions of confinement, such as disciplinary segregation in ADMAX SHU (resolved by creation of verbal or written reports on a monthly basis of status updates for Category I Management Interest Inmate, to determine if continuation in highly restrictive conditions of confinement is still warranted)
  • delays in notifying correctional officials of when a detainee had been cleared of ties to terrorism (resolved by creation of a time frame of 2 business days for such reporting)
  • evidence indicating a pattern of physical and verbal abuse by some corrections staff against detainees (not resolved via denial that such abuses occurred or such evidence is premature since no written reports exist of such; nevertheless, the BOP will incorporate training in this regard into the BOP's FY 2005 annual training requirement)
  • tapes were destroyed from installed cameras in each ADMAX SHU cell along with videotape recordings of all detainees' movements outside their cells (resolved by new policy to retain videotapes for six months, for purposes of proving or disproving allegations of abuse raised by individual detainees)
  • failure to inform detainees about procedures for filing complaints (resolved via reinforcement of policy that all detainees receive and be permitted to retain the Admission and Orientation Handbook which contains such procedures)
  • substitution of the phrase, "are you okay" as a way to inquire whether detainees wanted their once-a-week legal telephone call (not resolved by denial that the phrase was a substitute, but policy will be reviewed being aware that with respect to certain pretrial inmates legal phone calls may present substantial opportunities for the transmission of information that could threaten national security and/or public safety)
  • failure to provide adequate open-air exercise time, suitable clothing during winter months, and keeping lights on in cells 24 hours a day (resolved by review of policies and recommendations for change)
  • failure to determine how long immigration grounds could legally could hold a detainee after they have received final orders of removal or voluntary departure orders, and presumably to continue to conduct clearance checks (resolved by Supreme Court in Zadvydas v. Davis as a six month presumptively reasonable time period -- note: this decision affects nearly 3000 "lifers" who are locked up in INS detention and whose home countries will not accept them and hence are being detained indefinitely by the INS)
    An August 2005 USDOJ Inspector General's Report, pursuant to Section 1001 of the USA PATRIOT Act, which requires that office to investigate claims of civil rights or civil liberties violations allegedly committed by DOJ employees, also provides an informative summary of abusive kinds of behaviors.  For example, in only a short six month period of 2005, the office processed 834 complaints, concluding that 182 (one-third) of them warranted further investigation.  Here's a short summary of those cases:

Summary of 2005 Abuses against Muslim Detainees
     Government officials allegedly sprayed chemicals around a complainant’s bed, contaminated a complainant’s food, injected individuals with “hypodermic behavioral instruments” as a deterrent for committing crimes, and converted a complainant’s television into a surveillance mechanism.  Detainees complained about lack of hygiene products, deficient medical care, and interference with prayer or the practice of religious beliefs. Correctional officers allegedly referred to certain inmates as terrorists, displayed offensive posters depicting Muslim prisoners throughout the facility, referred to some detainees as “Bin Laden,” “terrorist,” and “towel-head;” and posted pictures of an eagle with its middle finger raised which read “Jihad this."  One inmate alleged the officers said “We can call this the new Abu Ghraib" but later admitted fabricating this allegation. Other inmates have alleged that they were subjected to body cavity search in the presence of numerous people, including females. The most common complaints involve verbal abuse and threatening behavior, such as retaliation for filing complaints, unwarranted placement in segregation, confiscation of religious articles, and denial of telephone privileges.
    The constitutional issue which has the most relevance to the previous discussion (9/11 detainees) is the issue of freedom of information, bearing on the public's right to know.  The right to know is a perfect example of a "liberty" in the sense of being a fundamental freedom or piece of substantive due process made up from other rights like free press, right to education, and so forth.  It is intimately involved with the forwarding or advancing of civil liberties.  The following case is instructive in this regard.

Center for National Security Studies v. United States Dept. of Justice (331 F.3d 918 D.C.Cir.2003)
     Various “public interest” groups sued the Department of Justice seeking the release of information concerning certain persons detained in the wake of the September 11 terrorist attacks. Their challenge was brought via the Freedom of Information Act (FOIA), and the requested information included: detainee names, their attorneys, dates of arrest and release, locations of arrest and detention, and reasons for detention. To support its FOIA request, plaintiffs cited press reports about mistreatment of the detainees, which plaintiffs claimed raised serious questions about “deprivations of fundamental due process, including imprisonment without probable cause, interference with the right to counsel, and threats of serious bodily injury. The Government objected to the release of such information, citing the law enforcement exception within the FOIA. Originally, the District Court ordered that names of the detainees and their attorneys should at least be disclosed, the Appellate Court held that the exception extended to also keeping secret the names of detainees and their attorneys.  Further, the Appellate Court rejected alternate theories set forth by the plaintiffs that the First Amendment required such disclosure. The DC Court of Appeals now holds in this case that: (1) names of detainees and their attorneys were within FOIA's law enforcement exemption; (2) other detention details were also within the law enforcement exemption; (3) the First Amendment does not require the release of information sought; and (4) any common law right of access to information is preempted by FOIA.
     Is the law enforcement exemption to FOIA contrary to the First Amendment?

     The law enforcement exemption, or Exemption 7(A), allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to interfere with enforcement proceedings.” (see
5 U.S.C. §  552(b)(7)(A).  To establish a law enforcement purpose, an agency must establish (1) “a rational nexus between the investigation and one of the agency’s law enforcement duties;”  and (2) “a connection between an individual or incident and a possible security risk or violation of federal law.”
     Rule of Law: The First Amendment does not require release by Department of Justice of information concerning persons detained during investigation into major terrorist attacks, including names and attorneys’ names for those not criminally charged, and dates and locations of arrest, detention and release for all detainees; information sought was investigatory in nature and outside context of criminal proceedings, and detainees and their attorneys were not prevented from contacting members of press.  In actuality, the petitioners were asking for more than mere arrest records; they sought investigatory information. The Court expressly noted the language of the First Amendment (“Congress shall make no law ... abridging the freedom of speech, or of the press”) and said “it does not expressly address the right of the public to receive information," rather, generally speaking, the First Amendment only broadly protects the public’s right to speak or to publish.
     The First Amendment does not “mandate a right of access to government information or sources of information within the government’s control.”  The Constitution itself is not a Freedom of Information Act. The public’s right to access in regards to criminal proceedings is well established within certain limits in American jurisprudence; however, the Court was careful not to expand this – “We will not convert the First Amendment right of access into a requirement that the government disclose information compiled during the exercise of a quintessential executive power – the investigation and prevention of terrorism.” The Court noted the dangers associated with such a release are of paramount and apparent importance; and a course of action to the contrary would not be prudent in light of the general deference afforded to the Executive Branch in regards to matters affecting national security.
    The next civil liberty to be analyzed involves the question of what constitutes "support" for terrorism if, say, any American citizen would want to do that sort of thing, which of course, it might be argued that they should have a right to, if they wanted.  This issue has arisen in the context of freedom of speech and association, as the following case illustrates:

Humanitarian Law Project v. Reno (205 F.3d 1130 (9th Cir. 2000)
     Six organizations and two American citizens challenged the constitutionality of the Antiterrorism and Effective Death Penalty Act of 1996 which authorizes the Secretary of State to designate certain groups as foreign terrorist organizations and subsequently orders that “whoever” “knowingly provides material support or resources” to such organizations, “or attempts or conspires to do so”, may be fined, imprisoned (up to 10 years), or both. “Material support” is broadly defined to include: financial support, lodging, training, weapons, identification, communications equipment, personnel, and other physical assets; “except medicine and religious materials.”  Petitioners at bar wish to provide support to two such organizations, the Kurdistan Workers’ Party (PKK) and the Libertarian Tigers of Tamil Eelam (LTTE); both of which have been designated as a foreign terrorist organizations.  Petitioners contend that any congressional prohibition restraining such efforts, presumably based on upon their association with the organization alone, would constitute a constitutional violation of their First Amendment rights to association and freedom of speech.  Further, the petitioners claim that the Secretary of State’s authority to designate such organizations as terrorist is overly overbroad, and the Act itself is constitutionally vague.
     May Congress prohibit material support to foreign terrorist organizations, or is such a prohibition inconsistent with the First Amendment freedoms of expression and association?
     The Court uphold a limited preliminary injunction against the US government on vagueness grounds, finding support that certain terms within the Act, namely “training” and “personnel”, were inherently vague. However, the Court disagreed with the petitioners regarding their First Amendment claims; finding a distinct difference existed between mere “advocacy” through political expression (always protected by the First Amendment) and the notion of “material” support.
     The petitioners claim that the Act violates their freedom of association is based either on a misreading of the Act or an overly broad interpretation of Claiborne (see NAACP v. Claiborne Hardware Co., 458 US 886 (1982) – holding that “for liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims”).  Nothing in the Act prohibits membership or association with a foreign terrorist organization, nor does anything prohibit praising or advocating such an organization.  Rather, the Act specifically prohibits the giving of material support – and no constitutional right exists to provide terrorists, or any group for that matter, with the resources to buy and use weapons and explosives for illegal activity.  In response, the petitioners counter that American-Arab Anti-Discrimination Comm. v. Reno, 70 F. 3d 1045 (9th Cir. 1995) (and to some extent Claiborne) explicitly requires… that to punish advocacy, the government must show that the donor specifically intended for his contributions to further some illegal cause or activity. The Court, however, disagrees once again, drawing a sharp distinction between advocacy and material support. Advocacy is the promotion of certain views either through membership or actual voicing of opinions; while the giving of material support is a right less protected in certain contexts. Further, the petitioners contend that the giving of material support, particularly in the form of monetary contributions, is in itself a form of political expression; and to punish such political expression is a clear First Amendment violation.  They base this argument upon the presumption that the PKK and Libertarian Tigers are not only terrorist organizations, but also political advocacy groups.  The petitioners’ reliance on Buckley v. Valeo, 424 US 1 (1976), however, is misplaced.  There, the issue involved monetary contributions to organizations whose primary purposes were political advocacy – therefore, monetary contributions were used to promote, say, a person running for election and the resources needed for electioneering.  “Under those circumstances, money, and the things money can buy, do indeed serve as a proxy for speech and demonstrate one’s association with the organization.”  However, the Act under consideration is not aimed at regulating contributions for the purposes of mere political expression; but rather, aims to prohibit certain expressive conduct that leads, very often, to illegal activities. No one is suggesting that you cannot advocate a terrorist group on your local street corner, or even carry an Al Qaeda membership card.
Certainly if the government can regulate contributions to political campaigns, then it would certainly follow that the government could place tighter restraints, including an all-out prohibition, on funds that lead to illegal activity. Therefore, since the goal is prohibiting certain conduct, not prohibiting mere expression or association, the breadth of the Act must only pass a constitutional intermediate scrutiny standard, not the higher standard of strict scrutiny; which would be appropriate if the government’s aim was to prohibit forms of pure expression, advocacy, or association, and the Antiterrorism Act passes this intermediate test with relative ease.
    Months after the 9/11 attacks, the President secretly ordered the National Security Agency (NSA) to monitor the international telephone calls and international e-mails of hundreds, perhaps thousands, of US citizens in an effort to keep track of "dirty numbers" links to al-Qaeda.  The legality of such action is unclear (and probably classified by NSA lawyers), although FISA law clearly states that a warrant is needed for any purely domestic communications intercept.  While the statutory privacy laws have an exception for this type of monitoring (see 18 U.S.C. 2511), the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, and the constitutionality of warrantless interception of telephone calls in situations like this may be questionable.  The only piece of caselaw which has any relevance for this subject is US v. bin Laden (2000), but see Judge Sand's opinion in United States v. bin Laden which deals with the issue that an exception exists when the American citizen in question can be seen as an "agent of a foreign power" and if domestic surveillance is within the purview of Presidential powers in times of war.
    The NSA warrantless surveillance controversy will likely not be resolved anytime soon unless the technical details become known about how the surveillance was conducted.  The constitutionality is in question, but it might be suggested that such procedures are perfectly legal under a "border search" exception to the Fourth Amendment.  That exception allows domestic monitoring at places which are the "functional equivalent of borders."  Orin Kerr at the Volokh Conspiracy provides a legal analysis of this exception and others.   
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