Student Worksheet 3: GOVERNMENT ACTIONS TO FIGHT TERRORISM

Since September 11, 2001 Congress has passed an antiterrorism law, the U.S. Patriot Act, and President Bush's administration has taken steps it maintains will strengthen the U.S. in the fight against terrorism. Some of these measures, however, are being seriously questioned and actively opposed by individuals and groups, primarily on the grounds that they endanger Constitutional provisions protecting civil liberties. Two of them are described briefly below along with arguments pro and con.

1. DETENTIONS

Congress approved the U.S. Patriot Act on October 25, 2001, and President Bush signed it into law the following day. It includes provisions expanding the government's authority to wiretap and to monitor computers, allowing federal officials to obtain nationwide search warrants, and enabling penetration of money-laundering banks.

As of April 2002 more than 1100 non-citizens, mostly of Middle Eastern or South Asian descent, had been detained for months. Authorities will not reveal who they are or why they are being held.

Support for the Detentions

a. Aggressive detention policies are "vital to preventing, disrupting or delaying new attacks. It is difficult for a person in jail or under detention to murder innocent people or to aid or abet in terrorism. - John Ashcroft, U.S. Attorney General

b. "...It is my responsibility, at the direction of the President, to exercise those core executive powers the Constitution so designates. The law enforcement initiatives undertaken by the Department of Justice, those individuals we arrest, detain or seek to interview, fall under those core executive powers." - John Ashcroft, U.S. Attorney General

c. "A sleeper is a committed terrorist sent sometimes years in advance into a possible target location, where he may assume a new identity and live an outwardly normal life, all the while waiting to launch a terrorist attack....Now how are we going to combat the terrorists' use of sleepers? We could continue as before and hope for the best, or we can do what we are currently doing-pursuing a comprehensive and systematic investigative approach that uses every available lawful technique to identify, disrupt and, if possible, incarcerate or deport persons who pose threats to our national security." - Michael Chertoff, a Justice Department official

Opposition to the Detentions

a. "The Patriot Act authorizes the Attorney General to lock up aliens, potentially indefinitely, on mere suspicion, without any hearing and without any obligation to establish to a court that the detention is necessary to forestall flight or danger to the community.... The Justice Department refuses to disclose even the most basic information about most of the detainees, such as who they are, what they are being held for or where they're imprisoned....Never in our history has the government engaged in such a blanket practice of secret incarceration."

-David Cole, law professor, Georgetown University

b. "Initially, it was a huge sweep, and it seemed like there was some basis for thinking these people might have some information on terrorists. But as things have gone on, it has come to seem very broad and overreaching, a fishing expedition instead of a targeted law enforcement effort."

-Jeanne A. Butterfield, Executive Director of the American Immigration Lawyers Association

c. "Uzma Naheed is a Pakistani woman whose husband and brother were taken from their New Jersey homes in the middle of the night by INS (Immigration and Naturalization Service) officers this past fall. Four months later, she had still not seen her brother and had no idea why either man was being held. 'No one is telling us what is going on,' she said tearfully. Like many families of detainees, she and her children have been left without any financial support, and she has had to sell her belongings to buy food."

-Liza Featherstone, The Nation, 4/1/0

2. MILITARY COMMISSIONS

President Bush issued a Military Order on November 13 providing for military commissions or tribunals to try non-citizens charged with terrorism because "an extraordinary emergency exists." The Order states further "it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."

Mainly because the President's order did not include the rules for such commissions, there were widespread criticisms that it disregarded the Constitution, would deny prisoners due process and called for secret trials which would probably lead to swift convictions and executions.

On March 21, 2002 the Bush administration announced what the procedures would be, making concessions to earlier criticisms but not entirely eliminating them. The rules now include a presumption of innocence; the right of prisoners to have military lawyers paid for by the government and to have civilian lawyers at their own expense; access to the prosecution's evidence; a public trial conducted by

military officers (though classified information will be kept secret); a two-thirds vote for conviction but unanimity for the death penalty.

Among the criticisms of the rules are that they permit hearsay evidence; do not provide for an independent civilian appeals procedure; allow indefinite detention; and might not result in the release of prisoners even if they are acquitted.

Support for the Military Commissions

a. "I have reserved the option of trial by military commission for foreign terrorists who wage war against our country. Noncitizens, non-U.S. citizens who plan and/or commit mass murder are more than criminal suspects. They are unlawful combatants who seek to destroy our country and our way of life. And if I determine that it is in the national security interest of our great land to try by military commission those who make war on America, then we will do so..." -President Bush

b. "What happens if, in the course of this war, we apprehend or capture an enemy and we want to bring him to justice? What if the information necessary to bring him to justice would compromise our capacity to keep America safe. It seems like to me the president of the United States ought to have the option to protect the national security interests of the country, and therefore protect America from further attack." - President Bush

c. "Like presidents before him, President Bush has invoked his power to establish military commissions to try enemy belligerents who commit war crimes. In appropriate circumstances, these commissions provide important advantages over civilian trials. They spare American jurors, judges, and courts the grave risks associated with terrorist trials. They allow the government to use classified information as evidence without compromising intelligence or military efforts. They can dispense justice swiftly.... Enemy war criminals are not entitled to the same procedural protections as people who violate our domestic law ....The President's order authorizes the Secretary of Defense to close proceedings to protect classified information. It does not require that any trial, or even portions of a trial, be conducted in secret.... The order specifically directs that all trials before military commissions will be 'full and fair.' Everyone tried before a military commission will know the charges against him, be represented by qualified counsel, and be allowed to present a defense....Military commissions do not undermine the constitutional values of civil liberties or separation of powers; they protect them by ensuring the United States may wage war against external enemies and defeat them."

-Alberto R. Gonzales, counsel to President Bush

d. "If one steps back from examining the procedures provision by provision and instead drops a plumb line down through the center of all, we believe that most people will find that, taken together, they are fair and balanced and that justice will be served in their application." -Secretary of Defense, Donald H. Rumsfeld

Opposition to Military Commissions

a. "Not to have an independent court of appeals and then to have the President have the final say potentially undercuts whatever fairness they've sought to provide at the trial level." -Jamie Fellner, Human Rights Watch

b. "They create a tribunal that they say is fair, but then they can say, 'We don't like the results and the hell with it, we're going to hold you anyway.' This is a follow-on to their policy of holding people indefinitely before you charge them."

-Don Rehkopf, co-chairman of the military law committee of the National Association of Criminal Defense Lawyers

c. "The Bush administration's plans for military tribunals to try suspected terrorists are less troubling now than they were when the idea was first announced four months ago. But there is still no practical or legal justification for having the tribunals. The United States has a criminal justice system that is a model for the rest of the world. There is no reason to scrap it in these cases."

-New York Times editorial, 3/22/02

d. "'Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution,' says John Ashcroft in defense of the tribunals. First, the reasoning is alarmingly circular in Ashcroft's characterization of those who have not yet been convicted as 'terrorists.'....Second, it is worrisome when the highest prosecutor in the land declares that war criminals do not 'deserve' basic constitutional protections. We confer due process not because putative criminals are 'deserving' recipients of rights-as-reward....What makes rights rights is that they ritualize the importance of solid, impartial, and public consensus before we take life or liberty from anyone, particularly those whom we fear. We ritualize this process to make sure we don't all suffer the grief of great tragedies to blind us with mob fury, inflamed judgments and uninformed reasoning." - Patricia J. Williams, law professor, Columbia University