The Role of the Courts in Protecting Civil Liberties
and Human Rights for the Post-9/11 United States
by Deborah N. Pearlstein
From a legal perspective,
it is impossible to address the topic of the civil liberties consequences
of the "war on terrorism" without first commenting on
the problematic nature of that description of governmental counterterrorism
efforts. The term "war" has important and specific consequences
in law. For example, a large number of U.S. federal statutes authorizing
the use of certain executive powers may only be invoked "in
time of war." Likewise, certain international humanitarian
protections are only relevant during a state of international "armed
conflict." (Geneva Convention (III) Relative to the Treatment
of Prisoners of War, Aug. 12, 1949). Perhaps most important - and
central to this paper's theme - U.S. courts have often deferred
to the judgment of the "wartime" executive on questions
of the scope of presidential power. However U.S. political officials
may describe government actions aimed at punishing those responsible
for terrorist acts, or reducing the likelihood of future attacks,
it is a different, and independent, question whether these efforts
may be properly characterized as part of a "war" within
the meaning of a particular statute or treaty. And in such questions
of interpretation, the independent judiciary must play a pivotal
role.
Despite this, the executive
branch's post-September 11 counterterrorism measures must be distinguished
from historical examples of wartime executive authority in the number,
sophistication - and thus far effectiveness - of executive actions
designed to avoid structural judicial review. This paper seeks to
highlight that distinction.
Mechanisms for Protecting
Civil Liberties and Human Rights
Constitutional democracies
such as the United States rely on two fundamental mechanisms for
the protection of human rights and civil liberties. The first mechanism
is the most readily understood - democracies provide a set of positive
protections that either proscribe certain government actions against
the individual, or require the government to provide affirmative
protections to the individual to guard against the arbitrary deprivation
of civil rights. A classic example of a positive protection under
the U.S. Constitution, for example, is the First Amendment, providing
that "Congress shall make no law abridging freedom of speech."
(U.S. Const., amend. I.) Similarly, the Constitution provides that
"[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed."
(U.S. Const., amend. VI.) As important in safeguarding rights and
liberties is a second mechanism for their protection - a set of
structural protections, which, in the United States, primarily comprise
the separation of powers among coequal branches of government, and
power in each of the branches to check the legality of actions taken
by the other two.
During past periods
of war or emergency in the United States, many of the positive protections
most Americans take for granted have often been subject to stress.
More famous among these examples, President Lincoln oversaw efforts
to use military tribunals for the prosecution of civilian sympathizers
with the southern states during the U.S. Civil War. This measure
came in apparent contradiction to (among others) the positive right
to trial by jury in all criminal prosecutions. President Roosevelt
also made use of military tribunals during World War II, carrying
out the prosecution (and eventual execution) of a group of German
spies accused of planning to disrupt industry and transportation
infrastructure within the domestic United States during that conflict.
And President Roosevelt also oversaw the mass roundup and detention
of thousands of U.S. citizens of Japanese descent on the West Coast
of the United States during World War II, based on a generalized
suspicion that these individuals might be inclined to engage in
sabotage or espionage undermining the U.S. war effort. (This practice
was challenged as a violation of, among other provisions, the protection
against government deprivation of life, liberty, or property "without
due process of law." U.S. Const., amend. V.)
In each of the historical
examples just given, the judiciary ultimately played a critical
role in evaluating the legality of executive action. In the Civil
War case, Lambdin Milligan, who had led armed uprisings against
Union forces in Indiana, appealed his military tribunal prosecution
to the U.S. Supreme Court. In Ex Parte Milligan (1865), the
U.S. Supreme Court held Milligan's military prosecution unconstitutional,
holding that as long as the civilian "courts are open and their
process unobstructed, . . . they can never be applied to civilians
in states which have upheld the authority of the government."
In Ex Parte Quirin (1942), the Supreme Court reviewed the
military prosecution of the German army spies for violations of
the laws of war and concluded that it was within the executive's
power. Unlike the civilian subject to military justice in Ex
Parte Milligan, the Quirin defendants were members of the army
of a nation with which the United States was in declared war. And
critically, Congress had expressly authorized military commission
trials for the offenses for which they were accused. The Supreme
Court likewise upheld the exclusion of Japanese-Americans from their
homes in Korematsu v. United States (1944), explaining: "Korematsu
was not excluded from the military area because of hostility to
him or his race. He was excluded because we are at war with the
Japanese Empire, because the properly constituted military authorities
feared an invasion of our West Coast and felt constrained to take
proper security measures, and finally, because Congress, reposing
its confidence in this time of war in our military leaders - as
inevitably it must - determined that they should have the power
to do just this."
As these examples demonstrate,
the U.S. Supreme Court has not always acted to enforce positive
legal protections in favor of the individual against the government's
exercise of 'wartime' power. Nonetheless, the Court's structural
involvement conveyed a critical political message that executive
power remained subject to the rule of law. In addition, the Court's
published majority opinions clarified the nature of the executive
action taken in response to perceived wartime threats, providing
a basis for comparative analysis of subsequent executive conduct.
In vigorous and public dissenting opinions accompanying each decision,
minority justices gave expression to the strong opposing arguments
on the resolution of the legal questions presented. Perhaps most
important, the judicial decisions provided Congress, legal scholars,
and the American public a means for understanding and, in the relative
calm of post-war decision-making, for reevaluating the political
wisdom of the challenged actions. Thus, for example, a federal court
eventually granted a writ of coram nobis in Mr. Korematsu's
case as a result of executive misrepresentations. (Korematsu
v. United States (N.D. Cal. 1984)). In 1971, to rein in what
was by then broadly recognized as executive excesses, Congress passed
18 U.S.C. § 4001(a), providing: "No citizen shall be .
. . detained by the United States except pursuant to an Act of Congress."
And in 1988, Congress awarded reparations to the remaining survivors
and descendants of those interned during World War II as a result
of the military exclusion order.
Mechanisms for Protecting
Civil Liberties in the Post-September 11 United States
One of the most important
distinctions between the historical examples of wartime executive
authority and the executive branch's post-September 11 counterterrorism
measures may is the number, sophistication - and thus far effectiveness
- of executive actions designed to avoid structural judicial review.
Since September 11, U.S. counterterrorism efforts have affected
civil liberties and human rights in multiple broad areas of law
and policy: government openness and classification; personal privacy;
the treatment of immigrants and refugees; the detention of numerous
individuals outside the strictures of either U.S. criminal or international
law; and U.S. counterterrorism actions in other nations. Examples
of executive policies seeking to limit the role of the courts may
be found in each of these areas. For discussion purposes here, I
focus in detail on just two, widely different, examples.
U.S. Military Detention
at Guantanamo Bay, Cuba
Since January 2002,
the United States has held approximately 660 foreign nationals at
the U.S. military base in Guantanamo Bay, Cuba. The detainees come
from approximately 40 different countries, including many states
with whom the United States is in no sense "at war" (including
the United Kingdom and Australia). According to the U.S. government,
most of those now held at Guantanamo were captured during the U.S.
military action in Afghanistan in 2001. In addition, Guantanamo
also now houses several detainees arrested well outside Afghanistan,
including six Algerians (five of whom claim naturalized Bosnian
citizenship) arrested in Bosnia in October 2001, and two U.K. residents
who were arrested in November 2002 during a trip to Gambia. The
U.S. military has permitted the International Committee of the Red
Cross (ICRC) access to Guantanamo; and the ICRC has now transmitted
hundreds of letters from the detainees to their families.
While there are no continuing
allegations that the detainees at Guantanamo are being physically
mistreated by the U.S. government, the uncertainty of their status
- and apparent indefinite duration of their detention - has drawn
international criticism, including a rare public rebuke from the
traditionally confidential ICRC. The U.S. government has declined
to term any of the detainees either combatants, entitled to prisoner-of-war
protections under the Geneva Conventions, or criminal suspects,
entitled to the protections of the U.S. criminal justice system.
The detainees have had no access to counsel, and have been afforded
no formal hearing to determine their status (as prisoners of war,
civilians, innocents, or something else).
To date, two major legal
challenges brought in U.S. courts to resolve the detainees indeterminate
status have failed - not because the courts upheld the Guantanamo
detentions on the merits, but because the courts held that courts
lacked the structural authority to address the questions the detainees'
advocates presented. In one case, a coalition of clergy, law professors
and others sought writ of habeas corpus in California federal court
not seeking the detainees' release, but only a hearing to clarify
their legal status. Both the federal district court and U.S. Court
of Appeals for the Ninth Circuit refused to consider the writ on
the merits on the grounds that it lacked jurisdiction to
hear the case - the coalition did not have a sufficiently close
relationship to the detainees to establish "standing"
under the habeas statute. The U.S. Supreme Court declined review.
In a second case, family
members of some of the detainees sought a writ of habeas corpus
in federal court in Washington, D.C. While the court recognized
the families' standing to seek the writ, it concluded that the detainees'
families had no right to "invoke the jurisdiction of [U.S.]
courts to test the constitutionality or the legality of restrains
on [the detainees'] liberty," because they were not being held
on U.S. sovereign territory. (Al Odah v. United States (2003)).
Specifically, under the terms of a perpetual lease agreement signed
by Cuba and the United States in 1903, Cuba retains "ultimate
sovereignty" over the military base there. Put simply, U.S.
courts thus have no power to check U.S. government actions there.
Among other concerning implications, this decision suggests that
the U.S. government can avoid having to explain the legal basis
of any individual detention in federal court merely by ensuring
that detainees are held in custody outside the sovereign territory
of the United States. The detainees' families have appealed this
decision to the U.S. Supreme Court, which is currently considering
whether to hear the case on review.
Federal Surveillance
Powers Under the Foreign Intelligence Surveillance Act
In a very different
context, the executive has also significantly expanded its use of
foreign intelligence surveillance warrants - a search warrant subject
to fewer judicial protections than traditional criminal search warrants
- a process initially unreviewable by any public court. By way of
background, the Fourth Amendment to the U.S. Constitution requires
that when the executive conducts a "search" of something
in which an individual has a reasonable expectation of privacy -
whether a physical search of one's house or the content of one's
phone conversations - it must first go to a neutral magistrate (an
independent court) and obtain permission for the search. The magistrate
may issue a warrant for the search only if the executive explains
with some precision what it wants to search, and demonstrates "probable
cause" that there is reason to believe the target has been
engaging or are about to engage in criminal activity. This is the
so-called "warrant requirement" of the Fourth Amendment.
It is based on a long-standing recognition of the importance of
interposing the courts between the government prosecutor and the
individual.
Since 1978, the rules
governing wiretapping authority for the purpose of foreign intelligence
surveillance - as distinct from criminal investigation - have been
different. In 1978, in the wake of a major congressional report
documenting the excesses of the Hoover FBI, Congress passed the
Foreign Intelligence Surveillance Act (FISA) in an express attempt
to constrain previously unchecked executive authority to
conduct secret surveillance in the name of "national security."
Recognizing the necessity of foreign intelligence gathering, Congress
agreed that it would create a narrow exception for such surveillance
where the usual the Fourth Amendment protections do not apply. Thus,
instead of probable cause to believe a crime is being committed,
the executive only needed to show probable cause that the prospective
target is a "foreign power" or an "agent of a foreign
power" (terms very broadly defined under the Act). There would
be no need to articulate any suspicion that the target is engaged
in criminal activity. And unless the target was criminally prosecuted
on the basis of the evidence obtained from the FISA search, the
executive was not required to provide the target with any notice
that his or her privacy had been compromised by a search.
A final distinctive
feature of the FISA process is the establishment of two secret courts
- housed in the Justice Department - to review and approve FISA
warrant applications. The Foreign Intelligence Surveillance Court
(FISC), and its appellate authority, the Foreign Intelligence Court
of Review (FISCR), comprise a handful of federal judges who are
appointed by the Chief Justice of the United States to serve on
the secret courts for a period of years. The FISC has limited jurisdiction
to grant or deny government applications for surveillance orders,
and in the FISC's 25-year history, it has approved all of the executive's
warrant applications (making procedural modifications to the search
authorized in only a handful of cases). Proceedings before the FISC
and FISCR are ex parte (meaning they are non-adversarial, as the
government is the only party), and with a single exception in the
Act's 25-year history, decisions of the courts are not available
for public review.
The USA PATRIOT Act,
passed just six weeks after the September 11, 2001 attacks, expanded
the circumstances under which FISA warrants are available. As interpretive
guidelines adopted by the Attorney General in early 2002 made clear,
the executive now need only certify that "a significant purpose"
for seeking a FISA warrant is foreign intelligence (as opposed to
"the purpose" or "the primary purpose"). Thus,
even if the government's primary purpose is criminal investigation,
FISA warrants are available. In addition, the Justice Department
will no longer place a 'filter' between law enforcement and intelligence
officials to ensure criminal investigators cannot use FISA as a
simple means of avoiding the Fourth Amendment warrant requirement
when they cannot show "probable cause" of criminal activity.
Under previous rules, intelligence officials could always alert
prosecutors if they discovered through FISA surveillance that criminal
activity was afoot. But criminal investigators could not instruct
intelligence officials to seek a FISA warrant for their own purposes.
Under post-PATRIOT rules, criminal investigators can now directly
advise intelligence officials to "begin, operate, continue
and expand" FISA surveillance. In effect, there is no longer
any means of preventing prosecutors from using FISA as end-run around
the Fourth Amendment.
Finally, because the
executive is the only party before the secret FISC, there is no
party to appeal to the Supreme Court when the executive prevails
in obtaining a FISA warrant, or when the FISCR issues a decision
construing the scope of executive power under FISA. Further, because
targets do not receive notice of a FISA search unless they are criminally
prosecuted (which happens only occasionally), there is no way of
showing the individual injury required to establish standing to
challenge unlawful targeting in the federal courts.
Chances for Restoring
Structural Protections for Civil Liberties and Human Rights
While the executive
has thus far successfully used structural limits on judicial power
to avoid an independent check on executive actions, there remain
several avenues for challenging the executive's actions just discussed.
First, while no court has so far reached the merits of challenges
to the detentions at Guantanamo Bay, a petition for review of those
detentions is now pending in the U.S. Supreme Court, which may decide
to hear the case. Second, Congress remains an important (if unlikely)
avenue for checking executive action. For example, Congress retains
the authority to make clear that federal courts have jurisdiction
over the U.S. military base at Guantanamo. And Congress could strengthen
the power of the secret FISA courts to ensure they provide a more
rigorous review of foreign intelligence search warrant requests.
Finally, international diplomatic and political pressure in certain
circumstances may prove an effective check. This was made clear
when the United States reversed course after its initial announcement
that several of the Guantanamo detainees (including U.K. and Australian
nationals) had become eligible for trial by military commission.
Following aggressive protests by those nations, the United States
promised that it would not seek the death penalty or monitor consultations
with counsel for its allies' prisoners. Soon thereafter, the U.S.
government announced it expected to reach plea agreements with the
identified detainees in exchange for a firm release date from U.S.
custody.
Deborah Pearlstein
is Deputy Director of the U.S. Law and Security Program at the Lawyers
Committee for Human Rights, and a Visiting Fellow at the Stanford
University Center for Democracy, Development and the Rule of Law.
