Arraigning Terror

...The panel also repeated a previous recommendation for "a separate domestic intelligence agency" that would be distinct from the FBI's law enforcement activities "to avoid the impression that the U.S...

...But they are not conventional criminals, either in our eyes or their own—so what else can they be but "unlawful enemy combatants...

...As a result, the White House, Defense Department, and the Justice Department have defended their actions by using the heretofore obscure 1942 precedent of Ex parte Quirin...

...agencies actually had in hand solid information that could have been used to prevent the terrorists from entering the country or staying long enough to complete their plans...

...5) the creation by presidential order in May 2003 of the Terrorist Threat Integration Center (TTIC), an interagency body with participants drawn from the Department of Homeland Security, the State Department, the Defense Department, the FBI, the Department of Justice, and various intelligence bodies...

...and divisions between national, state, and local police agencies...

...It is instead the main source of the still ill-defined category of "unlawful" enemy combatants...

...The second goal is to expand governmental powers to detain, prosecute, and convict persons suspected of terrorism without any meaningful procedural protections or oversight by the courts...

...Though these mechanisms remained vague, the Markle task force did recommend the development of standards restricting the purposes to which data could be put, especially unchecked rumors...

...MANY OF THESE changes (and more) are needed, but it is also true that the old structures of law enforcement reflected important values that are now at risk...

...And Bush officials simply distrust international criminal justice institutions, believing that they will be used for political purposes against the United States...

...Chief Justice Harlan Fiske Stone's opinion in Quinni stressed that lawful enemy combatants "are subject to capture and detention as prisoners of war by opposing military forces" according to international law...

...and immigration officials are all entitled to share such information rapidly, even information that has not been checked for accuracy, everyone risks being subjected to coercive measures that would ordinarily be deemed unconstitutional, on the basis of evidence that could not survive customary procedural safeguards...

...If the United States does not establish such safeguards, then many American citizens may increasingly come to feel that they are losing precious freedoms at home, even as Americans and innocent foreign civilians continue to lose their lives in wars that seek to establish freedom abroad...

...He claims he was a noncombatant...

...citizen...

...Still, innovations in data sharing inevitably pose new threats to civil liberties...

...Nor does the United States have the kind of negative experience with international criminal proceedings that justifies forgoing all efforts to see if they can work...

...The results of diverse 42 n DISSENT / Spring 2004 forms of electronic surveillance, so-called "sneak and peek" searches for which warrants need not be shown in advance, questioning that occurs during indefinite detentions, and the mappings of the social networks of suspects, are all bound to produce data on the activities of citizens with whom foreign nationals or immigrants communicate, as well as on their non-American connections...

...National security requires that such persons, too, be subjected to arrest, detention, and secret military trials if the executive branch deems such measures appropriate...

...Accused persons can be denied the opportunity to see and hear all the evidence brought against them, convicted on a vote of two-thirds of a panel of military judges, without trial by jury, and sentenced to death without appeal to the civilian courts...

...Both Harvey Rishikof, former FBI legal counsel during the Clinton administration, and Thomas F. Powers, a law professor writing in the Weekly Standard, have endorsed the alternative idea of a new specialized "federal security court" or "terrorism court" (possibly incorporating the FISC...

...Knowing that this policy of preventive warfare is likely to be answered with violent assaults at home as well as abroad, the administration has began to reconstitute all basic systems for exercising coercive force: the criminal justice system, conventional military operations, immigration control, and foreign intelligence gathering and special operations...

...When international and domestic security agencies...

...providing for means of data authentication...

...Hamdi is a twenty-two-year-old Saudi who was born in the United States and therefore also possesses American citizenship, and who was allegedly fighting on behalf of the Taliban and al-Qaeda when captured on a battlefield in Afghanistan...

...Such tribunals can, he made clear, be constitutionally conducted without the sorts of procedural safeguards, including Fifth and Sixth Amendment guarantees, ordinarily afforded to criminals, or the international law protections granted to lawful enemy combatants...

...There is no clear evidence to that effect, only speculation...

...That seems a good idea, but it is doubtful that it could suffice...

...44 • DISSENT / Spring 2004...

...These information-sharing mandates are being pursued through a bewildering variety of new mechanisms, but the new Terrorist Threat Integration Center is intended to serve as the main integrating institution— though how it will do so remains unclear, and inadequate data sharing remains a major problem...

...Legally recognized wars are declared against rival states, not loose networks of organizations and individuals...

...Though it has become common for both government officials and their critics to refer to this case as validating severe measures aimed at "enemy combatants" or "enemy aliens," those terms are not wholly accurate...

...The administration insists that it is too dangerous to delay detentions and prosecutions of terrorists until law enforcement agencies can constitutionally obtain sufficient evidence of criminal conspiracy to meet "probable cause" standards for arrest and "reasonable doubt" standards for conviction...

...Though greater information sharing is surely required, why can't we, once we begin sharing data efficiently, combat terrorism while relying on domestic and international criminal justice systems...

...While recognizing that "increased information sharing among law enforcement and intelligence entities is critical to the counterterrorism mission," the report expressed great concern that as 2004 began, "no clear government-wide direction has been esDISSENT / Spring 2004 • 43 TERROR AND CIVIL LIBERTIES tablished for appropriate handling of domestic information while protecting civil liberties...

...This endeavor presents far more massive dangers, and the case for its necessity has not been made...

...government in relation to uniformed enemy combatants participating in legal international wars...

...Collectively these changes dramatically transform the American state, breaking down old barriers between foreign espionage operations and domestic law enforcement...

...Over Justice Department objections, the Supreme Court has agreed to review his case as well, indicating that not even the Rehnquist Court accepts the Bush administration's claim that these actions can be taken entirely without judicial review...

...But if the United States continues to insist that ordinary criminal justice proceedings are inadequate to combat terrorism, and if it continues to restructure myriad institutions to promote information sharing and coordinated coercion, then the government cannot in good conscience ignore the need to make sure that civil liberties are protected in this brave new world of anti-terrorism...

...Yet plausible as those positions are, in the current context they have wide-ranging and worrisome implications...

...And when we are undertaking capital cases, the burden of proof must fall on those arguing for abandoning the constitutional rights that have historically been the most effective, albeit still imperfect, bulwarks of American justice...

...The Bush administration believes the United States is engaged in a wholly new kind of war in which, according to its National Security Strategy, it "must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends...

...citizens, and certainly unconstitutional if done within the jurisdiction of the United States, many agencies of the U.S...

...And if that is what they are, then Quirin also makes it plausible to argue that they can be arrested, detained, and secretly tried by military commissions without normal constitutional procedural protections, just as the Justice Department has been asserting, whether the suspects are aliens, dual nationals, naturalized citizens, birthright citizens, or anything else...

...It has only repeatedly disparaged one further alternative for protecting civil liberties—an option that has, however, never been truly discredited: the existing judicial system...

...The Homeland Security Act did provide for the creation of a departmental officer for civil rights and civil liberties...

...Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for DISSENT / Spring 2004 n 41 TERROR AND CIVIL LIBERTIES acts which render their belligerency unlawful...

...Are those procedures too risky at present...

...Similarly, for well over a year the courts refused to offer any but the most limited judicial review of the confinement imposed on Jose Padilla, also known as Abdullah al-Muhajir, an American citizen and long-term resident arrested at O'Hare airport...

...and establishing regulations governing access to these data...

...Hamdi has been held for more than two years without formal charges in military prisons in Virginia and was denied access to lawyers until the Supreme Court agreed to examine his detention...

...THOUGH THE United States has justified these stringent measures as within the war powers bestowed by the Constitution, the United States has not formally declared war on terrorists, and it is hard to see how it could do so...

...It argued that the new Terrorist Threat Integration Center must provide "appropriate institutional mechanisms" to achieve these ends...

...The Defense Department has since added some additional procedural protections, such as the requirement that guilt be found "beyond a reasonable doubt," but the basic structure laid out in the president's original executive order still remains in effect...

...Even if intelligence-gathering agencies merely make data available that could not be legally obtained by a domestic agency, the practical result may be that U.S...

...and as long as this court acted secretly and provided a virtual blank check for all types of intelligence gathering, as FISC has done, it would not be much help in protecting civil liberties...

...A variety of public and private agencies are providing more concrete suggestions...

...That court holds closed sessions and can issue secret warrants for intelligence operations...

...Still, if its information continued to be pooled without adequate checks for validity, the same dangers would exist...

...Under section 412 of the Patriot Act and its general "war powers," moreover, the administration has claimed similarly broad powers to detain indefinitely all persons, citizens as well as aliens, who are suspected of being involved in terrorism or even of being "material witnesses" in terrorist investigations, without ever filing criminal charges against them or permitting access to an attorney...

...TERROR AND CIVIL LIBERTIES The increased intermingling of immigration and criminal law enforcement raises further worries...

...And even if persons are acquitted in such trials, the government can still incarcerate them indefinitely if it continues to believe they are national security risks...

...WHAT, THEN, can be done to provide procedural safeguards against abuse of the heightened information sharing that we must have...

...the separation of immigration law enforcement from the criminal justice system...

...Because the courts have long held that U.S...

...national, state, and local law enforcement bodies...

...Supreme Court upheld secret military trials for Nazi saboteurs captured in Florida and on Long Island during the Second World War...

...In December 2003, the Markle Foundation, chaired by Zoe Baird, issued its own task force report, entitled "Creating a Trusted Information Network for Homeland Security...

...Its separation from those activities might help ensure that persons would not be subjected to coercion on the basis of unverified rumors alone...

...Those fears are sustained, moreover, by the wealth of legal precedents holding that immigration officials can constitutionally take peremptory actions against non-citizens that other law enforcement officers cannot...

...Some of the terrorists were subsequently guilty of immigration violations, and some were also involved in minor legal infractions, providing grounds for deportation...

...It would keep anti-terrorist intelligence operations secret while also trying cases with greater procedural protections for the accused than secret military trials afford...

...Instead, on March 24, 2003, the attorney general issued an order exempting the NC IC's Central Record System from national Privacy Act standards that require those records to be "accurate, timely, and reliable...

...When agencies long accustomed to acting without regard to constitutional restrictions abroad are allowed to join more fully in law enforcement efforts at home, there is clearly a danger that constitutional protections may be ignored here as well (especially when the administration is pressing to loosen those protections on a number of fronts...

...ROGERS M. SMITH is the Christopher H. Browne Distinguished Professor of Political Science at the University of Pennsylvania and the author, most recently, of Stories of Peoplehood: The Politics and Morals of Political Membership...

...it did not specify how information sharing would be accompanied by civil liberties protections...

...Terrorists clearly act "unlawfully," in violation of international laws of war as well as domestic and international criminal laws...

...But because their likely connections to terrorism had not been communicated, they were allowed to remain...

...And despite the fact that immigration law violations are not crimes, immigrant data are now being entered into the National Criminal Information Center (NC IC), even if the data have not been checked to see if they are current and accurate...

...In September 2003, the first such officer, Daniel F. Sutherland, published a "Strategic Plan," which was, however, little more than a promissory note...

...39 TERROR AND CIVIL LIBERTIES The efforts to facilitate information sharing are warranted because investigators have now shown that, had there been sufficiently effective systems for data sharing and assessment in place, the September 11 attacks probably would never have happened...

...But those protections are so far undefined...

...The congressionally created "Gilmore Commission," formally known as the "Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction," recommended in its fifth annual report that the president "establish an independent, bipartisan civil liberties oversight board to provide advice on any change to statutory or regulatory authority . . . that has or may have civil liberties implications (even from unintended consequences...

...There the U.S...

...Suspects can then be detained indefinitely, or tried in closed military trials with the aid of military defense counsel, on the basis of any evidence that military officials deem to have "probative value," even if it is hearsay or illegally obtained...

...Both the U.S.A...

...military, intelligence, and law enforcement agencies...

...3) the opening in January 11, 2002, of the Guantanamo, Cuba, naval base detention camp, where over 650 persons are still detained—the United States has declared them all to be "unlawful enemy combatants," not prisoners of war, without the individualized determinations of status required by the Third Geneva Convention of 1949...

...THIS PRECEDENT makes it entirely plausible for the administration to designate all those now involved in terrorism as "unlawful enemy combatants" or "belligerents...

...The application of these draconian measures to American citizens has already begun, most notably in the cases of Yaser Hamdi and Jose Padilla...

...It has also distanced itself from the developing system of international criminal law, notably by refusing assent to the International Criminal Court...

...He was detained incommunicado for some months as a "material witness" to terrorist activities, and though officials then accused Padilla of being an "unlawful enemy combatant" involved in a "dirty bomb" plot, he continues to be incarcerated in a military facility in South Carolina without formal charges...

...But again, reports by congressional investigators and private news agencies indicate that the real problems preceding the September 11 attacks were not that we used only the criminal justice system to prosecute terrorists, nor that we did not have sufficient intelligence to identify likely terrorists...

...and immigration officials that the United States is undertaking...

...Some state and local police are concerned that as they get involved in immigrationlaw enforcement, they will receive less cooperation from immigrant communities, who will fear that any contact with any government agency might end in their deportation...

...And though most of the saboteurs tried in Quirin were enemy aliens, Stone affirmed that, if the U.S...

...Thus, when we break down the walls between foreign and domestic enforcement efforts, and between immigration laws and criminal laws, we risk increasing the ways in which domestic criminal policing efforts may infringe constitutional rights, for citizens and non-citizens alike...

...That task is necessary, though it poses dangers to civil liberties that the Bush administration has ignored...

...American courts have rarely done well at protecting civil liberties in the face of what they perceived as novel national security threats...

...Section 502 authorizes coordinated action among these heretofore generally distinct agencies...

...We also have ample precedents for conducting at least partly closed criminal trials, with the identities of undercover informants and the details of intelligence operations revealed to judges, but not to the defense attorneys and the accused, when necessary to protect ongoing investigations...

...If the different pieces of knowledge had been consolidated and analyzed, the plotters might well have been stopped long before they could act...

...The main problems were failure to share and analyze data that we had...

...The act authorizing the new Department of Homeland Security goes further yet by not only mandating data sharing, but also placing many intelli40 n DISSENT / Spring 2004 gence-gathering and immigration law enforcement functions under this single new agency...

...Those risks are vastly increased by the government's multi-pronged pursuit of its second goal—its efforts to detain, prosecute, and sometimes execute terrorists without regard for most of the procedural safeguards provided by the Constitution or international law...

...The advisory board would have no enforcement powers if its advice were ignored and civil liberties invaded...

...Now consider what these legal powers mean in light of the new pooling of terrorist-related information among foreign and domestic security agencies...

...So far, the administration has not responded to these suggestions or provided any such direction...

...Patriot Act and the Homeland Security Act undermine the wall between foreign intelligence operations and domestic criminal law enforcement that was maintained throughout the cold war...

...Because everyone even suspected of being involved in terrorism is by this definition an "unlawful enemy combatant" or "belligerent," then every investigation of possible terrorist activities can result in indefinite detentions and secret trials on the basis of any evidence that gives even minimal credibility to allegations of such involvement...

...law enforcement is freed of constitutional restrictions...

...2) the president's executive order issued November 13, 2001, authorizing detention and military trials for non-citizens suspected of terrorism...

...This proposal is more promising, because this intelligence agency would have neither arrest powers nor immigrant incarceration or deportation powers...

...True, terrorists are not conventional criminals, but they are criminals nonetheless...

...Criminal records, educational records, and immigrant histories are all included, and so are the fruits of surveillance methods that would ordinarily be deemed to violate constitutional rights if employed by federal, state, or local criminal law officers in more routine investigations...

...Quinn does not focus on the powers of the U.S...

...The Gilmore Commission suggests this new domestic intelligence agency would operate under the requirements of the Federal Intelligence Surveillance Act and the Foreign Intelligence Surveillance Court (FISC) that it creates...

...This is the way prisoners captured in Afghanistan and incarcerated at Guantanamo as "unlawful enemy combatants" are being treated...

...And both the Departments of Homeland Security and Justice are seeking to involve state and local police in enforcement of immigration laws for the first time, the better to root out foreign terrorists...

...is establishing a kind of 'secret police.'" The report argued that the "'sanction' authority of law enforcement agencies— the threat of prosecution and incarceration— could prevent people who have important intelligence information from coming forward and speaking freely...

...There is no clear need to suspend those rights—and data sharing itself, with the rights in force, does not increase dangers to civil liberties nearly so much...

...4) the creation of a new Department of Homeland Security on Nov 25, 2002, which has absorbed many federal programs, including the Immigration and Naturalization Service and its anti-terrorist "Special Registration Initiative" targeted at Arabic and Muslim immigrants, which led to the questioning of roughly 130,000 male immigrants and alien visitors, the deportation of some 9,000 undocumented individuals, the arrest of over 800 criminal suspects, and the detention of 11 suspected terrorists (though on April 30, 2003, the administration announced that the Initiative was ending, so far only requirements for annual re-registration have been relaxed...

...Whether that review will amount to more than a rubber stamp remains to be TERROR AND CIVIL LIBERTIES seen, however...

...government deems a person to be an unlawful enemy combatant, it makes no difference whether or not the person is a U.S...

...It urged the president to issue an executive order providing such guidelines...

...national, state, and local police forces...

...governmental agents of all types can take actions overseas in regard to non-citizens, which would be unconstitutional if done to U.S...

...it reports to the director of the Central Intelligence Agency...

...The president's order authorizing military tribunals, in particular, permits aliens suspected of knowing about or being directly involved in terrorist plots to be arrested without any showing of probable cause to a neutral magistrate and with no opportunity to communicate with an attorney...

...defining how long such data could be retained...

...This report focused on the need to enhance information gathering and sharing capacities while also protecting civil liberties and privacy...

...The administration had two goals: first, to enhance information sharing and analysis among all U.S...

...Sections 203, 507, 508, 711, and 903 of the Patriot Act authorize extensive information sharing among all agencies, whether operating at home or abroad, whether federal, state, or local...

...The Justice Department also contends that covert intelligence operations would be seriously hindered if accused terrorists could see the evidence and witnesses against them...

...DISSENT / Spring 2004...

...If state and local police are simultaneously enforcing criminal laws and the more procedurally lax immigration laws, it becomes easier for them to act as though only the latter standards are binding on them...

...So far, the administration has taken five major steps to enhance the nation's ability to detect and deter terrorist threats by restructuring these coercive systems: (1) the passage of the USA Patriot Act on October 25, 2001...

...A number were on the terrorist "watch lists" of one or more intelligence agencies, but the officials issuing visas did not know this...

...government are in the habit of coercing witnesses, seizing evidence, and detaining suspects without any real procedural safeguards...