Legal Ramifications of the War on Terror

Summary

JALSA has examined some of the legal ramifications of the effects of the "war on terror" on democratic institutions and practices. The President has claimed expansive powers to label people as "enemy combatants", who can be held without charges and without access to counsel, to family or friends. The right to consult with one's attorney in private and in confidence has been done away with by directive of the Attorney General. In October 2001, Attorney General Ashcroft unilaterally struck a serious blow against the attorney-client privilege by issuing an order that permits the government to monitor all communications between a client and an attorney when there is "reasonable suspicion" to "believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of violence or terrorism." (See Att’y Gen. Order No. 2529–2001, National Security: Prevention of Acts of Violence and Terrorism, 28 C.F.R. 500–01 (2001).) The order acknowledges such communications would otherwise "traditionally be covered under the attorney-client privilege." www.abanet.org/crimjust/cjmag/17-2/privilege.html

The material witness statute (18 U.S.C. § 3144) is fairly short. Its full text follows:

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title [relating to the release or detention of a defendant pending trial]. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

On its face, the statute creates the alternative of a witness’s providing testimony through a deposition instead of being detained.

The Bush Administration is using the material witness law for the purposes of investigation rather than the purpose for which the statute is intended. In Stacey M. Studnicki and John P. Apol, "Witness Detention And Intimidation: The History And Future Of Material Witness Law," 76 ST. JOHN'S L. REV. 483, 486 (2002), the authors argue that "‘investigatory detentions’ are not only a misuse of the material witness laws, but also troubling and potentially unconstitutional." These authors contend that, "The secrecy surrounding the detention of material witnesses adds to the potential for misuse . . . . Further, it is easier to arrest an individual as a material witness than as a criminal defendant since there is no required showing of probable cause that the witness has committed a crime." Id.

Because of judicial deference, the political branches of government are not questioned in their assertions of authority when they claim they are acting to protect national security. The courts have adopted a "hands-off" standard of judicial review when called upon to review action by the military branches or by the president when he claims that national security justifies his action. In these cases, the Supreme Court, and following its lead, the lower federal courts, abandon their role as the final guardians of our liberties. In place of evidence and facts in the record, the courts accept assertions and conclusions of military officers and political appointees to render decisions that they acknowledge to infringe on basic rights under the Bill of Rights.

Judicial deference in times of the nation’s military actions has produced results that we later came to regret. Notable in this regard are the Supreme Court’s decisions in Korematsu v. United States and Hirabayashi v. United States upholding the penning up of Japanese-Americans in detention camps during World War II; and U.S. v. Stanley, denying a remedy to a soldier secretly infused with LSD under the guise of volunteering for tests of anti-chemical warfare gear. Whether similar regrets will arise a generation from now because of judicial deference to presidential authority in connection with the anti-terror campaign remains to be seen.

On November 13, 2001, President Bush issued a Military Order authorizing the establishment of military commissions to try terrorists and others. By its terms, the Order applies to "any individual who is not a United States citizen with respect to whom I [George W. Bush] determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this order."

Thus, it is the President who determines whether a person shall be charged and tried before the military commission. There is no requirement that there be a finding of reasonable cause to believe that the person targeted has committed an offense, as would be the case were a grand jury to indict. There is no opportunity to challenge the charge before being tried by the military commission, as there would be in an arraignment proceeding.

If George W. Bush has "reason to believe" that someone "aided or abetted" someone in "acts in preparation" of acts of terrorism, that person can be hauled before a military commission and tried on the basis of secret evidence in a non-public proceeding. The recent immigrant who works at the local Hertz rental office where the car was rented that took the hijackers to the airport could be tried and convicted by a military commission sitting in Portland, Maine.

The military commissions will hear charges brought, or on behalf of, George W. Bush against persons George W. Bush has labeled "enemy combatants". The judges will be designated by George W. Bush's appointee, the Secretary of Defense. After the military commission reaches its decision, George W. Bush will be the only person who can review that decision, according to standards that George W. Bush, or his designee, sets—but has not articulated. Whether a person convicted by a military commission is to live or die is left to the decision of George W. Bush, also based on criteria George W. Bush has not chosen to articulate.

Patriot Act Excesses

The privacy of Americans is now seriously limited by what are perceived to be the needs of the "war on terror". It is now easier for the government to conduct surveillance of U.S. citizens and residents. The USA PATRIOT Act amends the definition of "foreign intelligence information" to include information "concerning a United States person" that relates to "the national defense" or "the conduct of the foreign affairs" of the U.S. Accordingly, as long as the "significant purpose" of a surveillance of a U.S. person is to determine whether he/she is engaged in activities relating to the "conduct of foreign affairs", for example, it satisfies statutory requirements.

In addition, the USA PATRIOT Act revises the standards for when a U.S. person may be the subject of a search or seizure for national security purposes. Under the law, it is necessary to show that the intelligence activity of a U.S. person is a violation of federal criminal law before a surveillance may be authorized. It is a crime, for example, to provide "material support or resources" to a terrorist. For this purpose, providing "training, expert advice or assistance" is considered providing material support or resources. Accordingly, someone who serves as an accountant or lawyer to a suspected terrorist is subject to being wiretapped.

Denial of traditional right to habeas corpus
Reversion to hated Star Chambers that spawned the U.S. Revolution

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