By David B. Mote, Deputy Chief Federal Defender, C.D. Ill.
Copyright 2003 David Mote and The Back Bencher, published periodically by the Federal Public Defender for the Central District of Illinois.
The wish "May You Live In Interesting Times" has often been reported as an ancient Chinese Curse. While that attribution appears to be wrong (apparently the first verifiable use of the phrase is a 1950 science fiction story by Eric Frank Russell, writing under the name of Duncan H. Munro), it also seems appropriate. Interesting times are frequently trying times.
Criminal defense lawyers are now in "interesting times." The "war on terrorism" has changed the legal landscape dramatically. While the vast majority of criminal defense lawyers have not represented a client accused of terrorism, the majority of us will represent clients who will be affected by changes made in the "war on terrorism."
One development of the "war" is revival of the concept of an "enemy combatant." The concept was apparently adopted from a Supreme Court case in 1942, Ex Parte Quirin, 317 U.S. 1 (1942), which used the term to describe saboteurs trained in Germany after the declaration of war between Germany and the United States and captured on United States soil. Prior to last year, few people would have anticipated that the"enemy combatant" designation, and the deprivation of constitutional rights that go with it, would be applied to United States citizens, such as Yaser Esam Hamdi, who surrendered in Afghanistan, let alone to an American citizen arrested on U.S. soil, such as Jose Padilla. As "enemy combatants" Hamdi and Padilla are entitled to neither the rights afforded to defendants in our criminal court system nor to the rights afforded to Prisoners of War under the Geneva Convention. They are in a legal "no man's land" in which they can be held indefinitely without ever being charged.
It is unclear what standards the government is using to decide whether to designate someone as an "enemy combatant" or prosecute them in normal court system. For example, it is unclear why John Walker Lindh and Zacarias Moussaoui were not designated as "enemy combatants" while Hamdi and Padilla were so designated. Moussaoui is not a United States citizen, but presumably the 600 or so detainees being detained in Cuba as "enemy combatants" are not United States citizens either, though nothing is certain since the government will not even release the names of those detained.
The "war on terrorism" has not been formalized by a Congressional declaration of war, of course. The enemy in this "war" is not a country, but a terrorist organization. Still, we should not forget the Constitution's assignment of the right to declare war to the legislative, rather than the executive, branch. A declaration of war represents not only a change of status for our country, but also a change in the status of all of this country's citizens.
Before the rights of the citizenry of this country are altered, the Constitution prudently requires that the elected representatives of the People concur. An act of Congress requires that the People's elected representatives agree both on the identity of the enemy and that the proper solution is war, rather than diplomacy. An Act of War, by its very nature, also serves the purpose of providing the citizenry with notice of the enemy's identity and that the restrictions governing aiding or abetting an enemy in a time of war apply. The discussions about what powers should be granted to the President in a time of war have largely ignored this important point.
We have, of course, been involved in armed conflicts in the past without a formal declaration of war, including Korea and Vietnam. The "war on terrorism" may, however, be closer to the "war on drugs" than it is to a normal war. Wars between countries end. One country may surrender, or a truce may be called, or, if the countries do not neighbor, one country may withdraw. Frustrated and fanatical individuals who wish this country harm will always be with us, just as the "war on drugs" has proven that there will always be someone willing to sell drugs to make more money than they can make lawfully for the same effort. Granting war-time powers to the executive branch for as long as it takes to resolve a permanent problem amounts to a permanent increase in power for the executive branch and a permanent decrease in the rights of the People.
In the wake of September 11, 2001, the Congress passed the USA Patriot (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act. The act amends fifteen different federal statutes and grants new powers to law enforcement and intelligence agencies. The changes affect immigration law, privacy (remember reading about how the FBI had been given the authority to find out what books an individual checked out from a public library and the requirement that the library not tell you about the inquiry, or the "TIPS" program, a government plan to recruit civilians in service jobs to keep the government informed of suspicious activities of their fellow citizens?), Fourth Amendment law (a provision makes it easier for the federal government to conduct a search without giving prior, or perhaps any, notice) and information sharing between government agencies.
Just as most of the cases affected by the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) involved neither terrorism nor the death penalty, the plethora of changes that have occurred and continue to occur to the law in the name of the "war on terrorism" will affect people in this country who have neither committed nor been accused of committing terrorism.
Since the beginning of the "war on terrorism," thousands of immigrants to this country have been rounded up based on what had previously been treated as minor immigration violations, such as over-staying a visa or taking less than a full class load when admitted on a student visa. In many cases, the government has at least temporarily refused to say who had been detained or even how many people had been detained. In a substantial number of cases, people detained on immigration charges have been transported to other states. One fact that came out following hundreds of arrests for minor immigration violations was that the INS had millions of pages of unprocessed applications. They reportedly did some catching up after September 11, 2001, approving visa applications for two of the hijackers six months after the attacks had taken place. The Attorney General insists the government has the right to close certain deportation proceedings to the public. The courts have divided on the issue. Compare North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002) (declining to second guess the Attorney General's national security concerns), with Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) (blanket closure of deportation hearings in "special interest" cases unconstitutional).
Rules published in the Federal Register require visitors and immigrants 20 mainly Muslim countries to Register with INS. In California, hundreds of individuals who came in voluntarily to register were arrested. Males over the age of sixteen from 13 additional countries are required to register in January and February of 2003. (There are different deadlines for people coming from different countries.) The Attorney General has made it clear that he considers it completely appropriate to use detention on immigration as a tool to fight the war on terrorism. Thus, anyone charged with an immigration violation may be affected by the "war on terrorism."
Another development in the "war on terrorism" is the Orwellian "Total Information Awareness" project. The goal of the project is to develop a super-database of personal information including credit card purchases, telephone records, e-mails, medical records, passports, driver's licences, school records, magazine subscriptions and gun purchases, in order to identify suspicious patterns that could lead to the detection of possible terrorists.
The project is currently headed by retired Admiral John Poindexter, convicted of numerous felony counts of lying to Congress in 1990, but successful in having his convictions overturned because information given under immunity was used against him in his trial.
Following September 11, 2001, television commercials have been running which equate buying illegal drugs to supporting terrorism. Isn't Osama Bin Laden wealthy because he inherited a share of the estate of his billionaire father who made his fortune in construction during the Saudi oil boom? If so, would it be more appropriate to run commercials for conservation arguing that turning up the thermostat or driving a gas guzzler supports terrorism?
Other changes since September 11, 2001 have included increased airport security measures, including randomly selecting travelers for additional screening and proposals to arm airline pilots. Of course, it would be a good idea if pilots who drank before flying, as additional security measures have occasionally discovered, were not armed. And if a pilot or co-pilot decided to intentionally crash a plane, as the NTSB concluded a co-pilot may have done in a 1999 EgyptAir crash, a securely locked cabin and gun could make it easier for that person to succeed.
Everyone in our society is affected by the changes made in the war on terrorism, from immigrants who came here on student visas and dropped a class to American-born U.S. citizens who must plan for longer delays at airports and consider how their government will view their choice of reading material or credit card purchases. It is not yet clear what changes will eventually be implemented or what the eventual results will be from the changes already implemented.
Criminal defense attorneys deal with people's rights to due process, legal representation, and to be free from unreasonable searches and seizures. We should be contemplating the changes that have and continue to take place. Will drug dealers some day be charged with treason because drug trafficking supports terrorism? Would a search warrant based on personal information from the Total Information Awareness database violate the Fourth Amendment? Does it raise questions under the Ninth Amendment and the right to privacy? Does a search warrant instigated based on what books someone checked out from the public library violate the Fourth Amendment? Does it violate the First Amendment? Does a registration requirement applied to males over the age of sixteen from predominantly Muslim countries violate equal protection?
The changes adopted in the name of the "war on terrorism" are not merely matters of national security and politics. They affect the rights of individuals and those on the margins of our society, the origin of most criminal defendants, are the first to truly experience it when our rights are diminished. It is not too early to begin contemplating how the changes made and proposed in the "war on terrorism" have affected individual rights. Someone in the government is obviously thinking about all these changes and their effects before they are even proposed, so we are behind already and there is much to think about.