Democratic Space

Preserving Our Freedoms While Defending Against Terrorism

By AMERICAN CIVIL LIBERTIES UNION (ACLU)
Submitted to the Senate Judiciary Committee Concerning Department of Justice Oversight
November 28, 2001

US aggression reached a new height last week when US President George W. Bush ordered the creation of military tribunals to conduct trials of non-American terrorists. The tribunals will reportedly target "non-citizens" who attacked innocent American civilians.

The order was issued last November 13 through a military order. According to Assistant Atty. Gen. Michael Chertoff, Bush does need a congressional declaration of war for the president to use his power to create military tribunals.

The following is the full text of the statement issued by the ACLU regarding this latest development and other related actions by the US government.

The American Civil Liberties Union is a non-partisan, non-profit organization consisting of nearly 300,000 members dedicated to protecting the principles of freedom and equality set forth in the Constitution and in our civil rights laws.

On September 11, thousands of Americans were brutally murdered in an audacious, coordinated attack. Our main office is only blocks away from the twin towers and our colleagues joined the terrified crowd rushing north from lower Manhattan. We recognize that the Department of Justice has a profound duty to prosecute the perpetrators and to try to protect the public against other attacks. We appreciate that this is a daunting task and that thousands of well-meaning people at the Department of Justice are working hard to accomplish this goal.

The ACLU has supported many of the efforts now underway to promote security, such as recent initiatives to toughen airport security. However, we remain convinced that the government need not sacrifice civil liberties to protect the public. We can be both safe and free.

This statement outlines how the conduct of the Department of Justice over the last ten weeks has undermined our most cherished rights, blunted the tools of accountability, and threatened the balance of power between the various branches of government.

From the outset, the Attorney General and other spokespersons for the Department of Justice have signaled that they would not erode civil liberties in response to the September 11 attacks. Unfortunately, the actions of the Department of Justice and of other agencies acting in concert suggest otherwise. The Attorney General and the Administration have detained more than a thousand people without providing information to the media or public, written new regulations allowing for the recording of privileged conversations between attorneys and clients, proposed military tribunals without constitutional protections, and expanded the government's ability to withhold information from the public. We are deeply troubled by these actions. We hope that today's hearing is a step in the direction of Congress taking responsibility for its role in overseeing the Executive Branch and protecting our democratic government.

Military Tribunals

"We will not yield in our determination to protect the constitutional rights of individuals. Very frankly, those who attack the United States would attack the constitutional rights as well as the safety of individuals. We're going to do everything we can to harmonize the constitutional rights of individuals with every legal capacity we can muster to also protect the safety and security of individuals. It's with this in mind that we would evaluate any potential changes in the law." Attorney General Ashcroft, Press Briefing, September 18, 2001

On November 13, 2001, President Bush issued a "Military Order" providing for potentially indefinite detention of any non-citizen accused of terrorism, and permitting trial of such defendants in a military commission with no provision for judicial review.

These tribunals will not be governed by the Uniform Code of Military Justice and do not contain the protections provided by the UCMJ. The order was issued without a formal declaration of war or any authorization by the Congress for the establishment of military tribunals. It circumvents the basic statutory requirement - at the heart of the compromise that was the USA Patriot Act -- that non-citizens suspected of terrorism must be charged with a crime or immigration violation within seven days of being taken into custody, and that such detainees will have full access to the federal courts.

The President's Military Order is unjustified and dangerous. It permits the United States criminal justice system to be swept aside merely on the President's finding that he has "reason to believe" that a non-citizen may be involved in terrorism. It makes no difference whether those charged are captured abroad on the field of battle or at home by federal or state police. It makes no difference whether the individual is a visitor or a long-term legal resident. Finally while the order applies in terms only to non-citizens, the precedents on which the President relies make no such distinction, thereby permitting the order to be extended to cover United States citizens at the stroke of a pen.

The President does not have unchecked war power by virtue of his authority as Commander-in-Chief. Rather, he shares these powers with Congress. "The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry." Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801). This is true whether Congress authorizes "general hostilities" by declaring war, or "partial hostilities" by authorizing the use of force in a military action short of war, as it has done here. Id.

The Administration claims authority to establish military tribunals from the World War II-era precedent involving the trial of eight accused saboteurs, who landed on United States territory in 1942, shortly after the United States declared war on Germany. Their trial by military commission was upheld by the Supreme Court. Ex Parte Quirin, 317 U.S. 1 (1942). But unlike President Bush, President Roosevelt relied on the authority Congress had given him by its formal declaration of war. Id at 25-26. Roosevelt also relied on specific statutory authority permitting trials of enemy spies by military commission. This authority has since been repealed.

The scope of the President's Order is breathtakingly broad. It applies to any individual whom the President determines he has "reason to believe" is (1) a member of Al Qaeda, (2) is in any way involved in "acts of international terrorism" -- a term which is not defined by the order -- or (3) has "knowingly harbored" either of the above. If the term "acts of international terrorism" is defined by reference to any of several definitions of terrorism in the United States Code, as expanded under the USA Patriot Act, the universe of potential defendants could sweep in not only those who are directly involved in or knowingly support violent activity, but also many others on the basis of otherwise lawful, non-violent political activities and associations.

The Attorney General has sought to justify the order on the grounds that it applies only to non-citizens, whom he erroneously (and alarmingly) claims not to have any constitutional rights. The Supreme Court made clear just this past summer that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis, 121 S. Ct. 2491, 2500 (2001) (emphasis supplied).

If United States courts can hear terrorism cases, and there has been no showing that they cannot, this severely undercuts the argument for military tribunals. Military tribunals, other than ordinary courts-martial, are adopted as a last resort to ensure justice when the civil courts cannot function, not as a method of avoiding available forums for justice by undercutting basic constitutional rights. Military tribunals are used against "certain classes of offense which in war would go unpunished in the absence of a provisional forum for the trial of the offenders." Madsen v. Kinsella, 343 U.S. 341, 348 n.8 (1952) (emphasis supplied). Likewise, President Lincoln regarded military justice as permissible only if justified by military necessity, and refused demands to create military courts except where made necessary because of the inability of the regular courts to act.

The Military Order also fails to respect the careful limits that the Constitution has placed on the use of military courts even in times of declared war. They are not a substitute for civil justice generally, but may be applied only to "unlawful enemy belligerents," a class which is far narrower than the universe of all persons who could be accused of terrorism crimes, particularly after the broadening of the definitions of terrorism in recent anti-terrorism legislation.

Finally, and perhaps most importantly, the order utterly fails to account for the evolution of both international law and American constitutional law since World War II, when military commissions were last extensively used. It does not guarantee due process for the accused and could permit trials that our own government has said are fundamentally unfair and violate basic international standards when such trials are held in other countries. If Congress chooses to authorize military tribunals for a limited class of accused terrorist war criminals, it is imperative that such standards apply.

Detentions

"I'm deeply concerned about the civil liberties of all Americans. I'm especially concerned about the civil liberties of Arab Americans and Middle Eastern Americans who are patriotic citizens, who lament and regret this loss, perhaps as keenly or more keenly than any, and whose commitment to the strict enforcement and pursuit of these networks of terror that inflict this kind of injury is as strong as any." Attorney General Ashcroft remarks following his tour of the Pentagon, September 19, 2001.

The Department of Justice has launched what appears to be the most extensive program of preventative detention since the internment of over 100,000 Japanese and German-Americans during WWII. By the admission of the Department of Justice, over 1,200 people have been detained in connection with the September 11 attacks. According to media accounts of the detentions, approximately 1 percent or 2 percent of those detained in connection with the attacks are actually suspected of having any involvement at all. The rest are being held on the basis of unrelated immigration violations, minor crimes (usually under state law), and as material witnesses under 18 U.S.C. sec. 3144. It appears that the vast majority of the people being detained in connection with this investigation are being detained on pretexts: they have committed a minor offense that gives law enforcement or immigration authorities the power to detain them even though they would not under normal circumstances be detained for such conduct. By all accounts, virtually all of the detainees are Muslims or Arabs, and most are non-citizens.

An extraordinary wall of silence surrounds this preventative detention campaign. The public, though it has a right to know, has not been informed of even the most basic information such as who has been detained, why, for how long, and where the detentions have occurred. The Department of Justice has refused to release specific information about the detainees.

For these reasons, the ACLU wrote to the Attorney General asking him for information about the detainees. There was no response to that letter. We posed similar questions to the Director of the FBI, Robert Meuller, at two meetings during the month of October. We posed similar questions to Commissioner Ziglar of the Immigration and Naturalization Service on October 30. When all those requests for information failed, we filed, along with other organizations, a request under the Freedom of Information Act. Our requests have not been satisfactorily answered and we are considering further legal action. This wall of silence undermines public confidence in the investigation and raises questions about the fairness of the process and the safety of those detained.

Persons detained on immigration charges are of particular concern because their access to legal counsel is limited. Unlike defendants in criminal cases or persons held as material witnesses, those who face immigration charges are not entitled to counsel at government expense if they cannot afford an attorney. In New York, the immigration detainees are reportedly given a list of pro bono attorneys in the area. However, there is no guarantee that the attorneys listed are qualified to represent persons under these circumstances, nor is there any guarantee the detained person will have success contacting an attorney. In some cases, detainees are allowed only one telephone call a week to find an attorney. Predictably, many of those who are questioned are questioned without an attorney. Another area of concern that is just coming to light is the fact that the Depart of Justice is planning on questioning 5000 men based solely on national origin. This constitutes blatant racial profiling, as some police departments have recognized.

Eavesdropping on Attorney-Client Communications

"I want to assure you that in our effort to make sure that law enforcement can gain the intelligence that it needs in order to protect America, we are also mindful of our responsibility to protect the rights and privacy of Americans." General Ashcroft, Press Briefing with FBI Director Robert Mueller, September 17, 2001.

To add to the concerns about the detainees, the Justice Department, unilaterally, without judicial oversight, and without meaningful standards, has issued rules that give it the power to decide when to eavesdrop on the confidential attorney-client conversations of a person whom the Justice Department itself may be seeking to prosecute. This regulation, implemented without the usual opportunity for prior public comment, is an unprecedented frontal assault on the attorney-client privilege and the right to counsel guaranteed by the Constitution. It is especially disturbing that these provisions for monitoring confidential attorney-client communications apply not only to convicted prisoners in the custody of the Bureau of Prisons, but to all persons in the custody of the Department of Justice, including pretrial detainees who have not yet been convicted of crime and are presumed innocent, as well as material witnesses and immigration detainees, who are not accused of any crime. 28 C.F.R. § 501.3(f) (proposed amendment).

The rule disregards long-standing Supreme Court precedent that protects the attorney-client relationship. The Court has repeatedly emphasized the importance of the need for attorneys to communicate openly with their clients and has grounded this principle in both the long-standing attorney-client privilege as well as the Sixth Amendment right to adequate counsel. Regarding the attorney-client privilege, the Court wrote:

The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.

Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682 (1981). Indeed, so well-established is this privilege, and so compelling the societal interest in unobstructed communication between clients and their attorneys, that the Supreme Court has held that the privilege survives even after the client's death. Swidler & Berlin v. United States, 118 S. Ct. 2081, 2088 (1998).

Regarding the Sixth Amendment right to counsel the Court wrote: "[T]he Sixth Amendment's assistance-of-counsel guarantee can be meaningfully implemented only if a criminal defendant knows that his communications with his attorney are private and that his lawful preparations for trial are secure against intrusion by the government, his adversary in the criminal proceeding." Weatherford v. Bursey, 429 U.S. 545, 554 n. 4, 97 S. Ct. 837, 843 n. 4, 51 L.Ed.2d 30 (1977). It is noteworthy that the Court took this quotation from the Brief for United States as Amicus Curiae indicating that even the government recognizes the importance of private communications.

The new rule gives the government the power to eavesdrop on a conversation between a detained person and his attorney any time the Attorney General finds that there is "reasonable suspicion" that a person in DOJ custody "may" use communications with attorneys or their agents "to further or facilitate acts of terrorism." The Attorney General makes the determination as to what constitutes "reasonable suspicion" without any provision for judicial review. The rule purports to provide safeguards such as "notice" that recording is taking place and the establishment of a "privilege team" within the Department of Justice that has the responsibility to review attorney-client communications, then seek judicial approval before giving the information to the prosecuting attorney (unless the team alleges an imminent threat of terrorism, in which case judicial review is unnecessary).

This "privilege team" is not an adequate solution to safeguard the attorney-client relationship. Under the proposed regulation, the determination of what constitutes "properly privileged materials" is made not by a neutral and disinterested judge, but unilaterally by the Justice Department itself. It will therefore be impossible for prisoners and their counsel to know in advance what portions of their intercepted communications the Justice Department will ultimately deem to be "properly privileged materials." This uncertainty renders the privilege meaningless. "[I]f the purpose of the attorney?client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications ..., is little better than no privilege at all." Upjohn, 449 U.S. at 393, 101 S. Ct. at 684.

Although promulgated in the name of preventing terrorism, the DOJ rule goes beyond intercepting potential "terrorist communications" between a lawyer and client. The Attorney General can authorize eavesdropping on all of a detainee's attorney-client communications, even when the detained person has been convicted of no crime and is merely planning his defense with his attorney, or has been detained on immigration charges and is not accused of any crime at all.

Lastly, this rule is unnecessary because current law already allows the government to seek a court order to record attorney client conversations if it has probable cause to believe that the attorney, with his client, is planning a serious crime such as terrorism.

Like so many other post-September 11 proposals, this rule is an attempt to vest with the Department of Justice, instead of the courts, the power to determine when communications between a lawyer and her client should be stripped of their privileged status. It is particularly disturbing to note that the standard for the Attorney General to authorize eavesdropping on conversations between attorneys and clients, reasonable suspicion, is less stringent than the standard of proof necessary to obtain an ordinary search warrant or a wiretap warrant, which is probable cause.

Secrecy

"As we do in each and every law enforcement mission we undertake, we are conducting this effort with the total commitment to protect the rights and privacy of all Americans and the constitutional protections we hold dear." Attorney General Ashcroft, testifying before the House Judiciary Committee, September 24, 2001

Americans have experienced the loss of privacy and the increase of secrecy take place with dizzying speed since September 11. Department of Justice regulations and Executive Orders have covered government operations with a shroud of secrecy.

Freedom of Information Act and Presidential Records

Attorney General John Ashcroft has issued a new statement of policy that encourages federal agencies to resist Freedom of Information Act (FOIA) requests whenever they have legal grounds to do so. The new statement supersedes a 1993 memorandum from Attorney General Janet Reno, which promoted disclosure of government information through the FOIA unless it was "reasonably foreseeable that disclosure would be harmful."

The Ashcroft policy rejects this "foreseeable harm" standard. Instead, the Justice Department instructs agencies to withhold information whenever there is a "sound legal basis" for doing so. "When you carefully consider FOIA requests and decide to withhold records, in whole or in part," the Attorney General advised, "you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis...." It is noteworthy that Attorney General Ashcroft has committed to having DOJ defend the suppression of public access -- rather than forcing the agency to provide its own defense if challenged in court.

As with many of the Bush Administration's new restrictions on public information, the new policy is only peripherally related to the fight against terrorism. Rather, it appears to exploit current circumstances to advance a predisposition toward official secrecy. At the same time that the government is acquiring more legal authority to obtain private information about people it is also cutting back on sharing the information that it has obtained, making it more difficult for individuals to learn what kind of files their government is keeping on them.

Another example of Administration secrecy is an Executive Order, issued November 1, that gives President Bush-- as well as former presidents -- the right to veto requests to open any presidential records. Even if a former president wants his records to be released, the executive order permits Bush to exercise executive privilege to prevent their release. The order also gives President Bush, and former presidents, an indefinite amount of time to ponder any requests. Bush's executive order openly violates the Presidential Records Act passed by Congress in 1978.

In defending the executive order, the White House has argued that these new restrictions balance public access with "national security concerns." This argument is specious given that national security documents are already shielded from public scrutiny.

The Presidential Records Act was designed to shift power over presidential records to the government and ultimately to the citizens. This shifts the power back.

Role of Judiciary

"The Justice Department will never waiver in our defense of the Constitution nor relent our defense of civil rights." Attorney General Ashcroft, testifying before the Senate Judiciary Committee, September 25, 2001

Instead of enlisting the help of the judiciary in the fight against terrorism, the Department seems intent on writing the judiciary out of the picture altogether. The President's executive order establishing military tribunals represents the ultimate form of court-stripping -- literally removing Article III courts from the picture with no provision for judicial review of the tribunal's actions. The Attorney General's lawyer-client eavesdropping order likewise writes judges out of their Constitutional role in deciding wheather there is probable cause to strip communications of their privileged status. Conclusion

The Justice Department's actions have antecedents stretching back to the earliest days of the Republic. The Alien and Sedition Acts of 1798, criminal restrictions on speech during World War I, the internment of Japanese-Americans following the attack on Pearl Harbor, and the blacklists and domestic spying of the Cold War are all instances in which the government was granted (or assumed) summary powers in a moment of crisis, to the inevitable regret of later generations. The diminution of liberty that accompanied these episodes was later understood as an overreaction to frightening circumstances; each is now viewed as a shameful passage in the nation's history. After the immediate danger passed, it was recognized that the government had possessed ample powers to address the threats at hand; the new tools were unnecessary at best and dangerous at worst.

Despite Attorney General Ashcroft's promises to uphold the Constitution and protect civil liberties, his actions belie his rhetoric. Our democracy is in real danger if any one branch of the government becomes too powerful. From establishing military tribunals without Congressional approval to expanding wiretapping authority while limiting judicial oversight, this Administration is demonstrating its disregard for the other two branches of government. The precarious balance of powers is becoming dangerously tilted toward an excess of Executive Branch power.

We are heartened that the Senate is taking the lead in reclaiming the Congressional role of overseeing the new police powers and hope this will be an ongoing practice. While all of the country is focused on waging the war against terrorism we ask Congress to make sure that the war on terrorism does not become a war on democracy.

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