Welcome Hillcrest Policy Team A topic overview just for you!!!! Sit back and take notes like crazy…
Civil Liberties vs. Safety and Security Resolved that the United States federal government should substantially decrease its authority either to detain without charge or to search without probable cause.
September 11, 2001 • Terrorist attacks on the World Trade Center on September 11, 2001 in New York City changed the world drastically. • Terrorists known as al Qaeda flew American aircrafts into the World Trade Center and the Pentagon. • Nearly 3,000 innocent civilians died, and Americans felt vulnerable in a way they had never experienced.
The CIA and the FBI • Before 9/11, the CIA and FBI maintained a “wall of separation” between domestic law enforcement and foreign intelligence gathering. • The Foreign Intelligence Act (FISA), a 1978 piece of legislation, provided special tools to fight terrorism. It was strictly limited to foreign terrorism investigations. • The FBI could not use these tools for domestic criminal investigations. (No matter how large the “hunch.”)
The War On Terror • Before 9/11, the War on Terror was treated as a Metaphor, like the War on Drugs; rather than a real war. • 9/11 made the War on Terror a “real war.” • The Bush Administration became instantly determined to give the FBI and the CIA greater leeway in coordinating their investigations so that intelligence gathering could be strengthened. • Congress speedily passed the USA PATRIOT Act. The “Homeland Security Act” was passed in hopes of creating a united front with the FBI and CIA in the fight against terrorism.
Big Terror • Quickly, feelings of terror in the United States elevated as “talk” of nuclear and biological weapons came to the forefront. • Bin Laden said, “If I have indeed acquired these weapons, then I thank God for enabling me to do so.” • The American people were in a state of “fear and panic.”
War in Afghanistan • In retaliation of September 11 attacks, the United States aggressively attacked and bombed Afghanistan. • U.S. soldiers searched Afghanistan in an all out “manhunt” for Osama bin Laden, the self proclaimed leader of the terror attacks on 9/11. • Osama bin Laden is still at large, and some 5,000 persons are believed to be engaged in terrorism against the United States, and are currently living in the United States. • It is believed that terrorist cells are growing all over the world, and that Osama bin Laden is still directing terrorist attacks. • Afghanistan is a war riddled county, fighting to stabilize the political, environmental, and economic climate. The U.S. has now withdrawn the majority of U.S. troops from Afghanistan. • The Hunt for bin Laden continues.
Immigrants and Non-Citizens • A huge complication with U.S. security and terror is the fact that nearly 330 million non-citizen visitors come to the U.S. each year. • ½ Million foreign students enroll in U.S. colleges each year. • 11 Million illegal immigrants have rushed to the United States. • American borders are infamous for being “loose” and many areas are unprotected from immigrant crossing.
A Threat to Civil Liberties • During WWII, the Roosevelt administration made a monumental decision to force Japanese-Americans into internment camps. • A landmark Supreme Court case regarding this action is Korematsu v. United States. • The Supreme Court ruled that the Roosevelt administration action was “justified.” • This court case has never been overturned. • This case is key because it leaves in place a powerful precedent for allowing leeway to the executive branch during times of national emergency. • Many critics believe this is a very threatening precedent.
America • America’s extraordinary prosperity and strength have been produced by an open society, where every policy was subject to debate. • American power in the world has been as much the power of its ideals – of freedom – as much as its weapons. • If terrorism leads us to close down society….perhaps the terrorists will have won…
The USA PATRIOT ACT • Passing the PATRIOT Act during an immediate “panic” of terrorist attacks seemed to justified. • Americans were ready and willing to pass extreme legislation to ensure security. • Now in the aftermath --,- questions about the PATRIOT Act are growing at an alarming rate. • The major premise behind many concerns is the question of Americans losing their civil liberties. • The PATRIOT Act allows the President to designate any organization or individual as a terrorist, and thereby freeze all their assets and criminalize all transactions. • More importantly, the PATRIOT Act is considered to stomp on the Fourth Amendment to the United States Constitution, the Fifth Amendment, as well as the First Amendment. • Search and Seizure laws and policies are completely changed by the U.S. PATIOT Act.
What is the Harm of Restricting Civil Liberties? • Civil Liberties are Considered Inherently Valuable. • “Our civil liberties were hard-won. We fought a revolution, we went through very trying times. But as hard as these liberties are to win, they are easy to lose, and once we give them away, they are difficult to reclaim.” Senator Patrick Lehy • “Those who would trade their freedom for security deserve neither.” Benjamin Franklin
Loss of Civil Liberties • The loss of civil liberties may even cripple our efforts in the war on terror. • Effectiveness requires that Islamic immigrant communities not become alienated and isolated from the mainstream of American society. • Often the PATRIOT Act targets or “profiles” immigrants. • Public confidence in the justice system and the rule of law weakens as civil liberties are trampled underfoot. • The security to be free from arbitrary detention is another freedom threatened by the PATRIOT Act. • Loss of freedoms may be the biggest weakness in our ability to stand strong and fight as a United States force. • Losing cooperation of our allies and coalitions also hinders our strength in fighting terror. • Other counties model American civil rights. When the U.S. restricts civil liberties, it provides a ready excuse for tyrants around the globe to oppress their people.
What Exactly is the PATRIOT Act? • The U.S.A. PATRIOT Act is public law 107-56. (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) • Perhaps the most intricate and imaginative legislative acronym in congressional history. • It was signed into law on October 26, 2001, just six weeks after the attacks on the World Trade Center and Pentagon. • Limited committee hearings were held. • Very little debate took place on the floor of Congress. • No official conference committee met to reconcile differences between the House and Senate bills. • The Act is 300 pages in length.
The Most Substantial Objections to the PATRIOT Act: • Section 213, relating to the “sneak and peek searches.” • Section 214, relating to the use of pen registers for foreign intelligence purposes. • Section 215, relating to the government’s power to obtain certain business records under the Foreign Intelligence Surveillance Act. • Section 216, relating to the use of pen registers in criminal cases. • Section 218, relating to the Foreign Intelligence Surveillance Act. • Section 411, relating to the grounds for deportation. • Section 412, relating to the mandatory detention of certain aliens. • Section 505, relating to national security letters. • Section 507, relating to educational records. • Section 508, relating to the collection and disclosure of individually identifiable information under the National Education Statistics Act of 1994. • Section 802, relating to t definition of domestic terrorism. • Many other objections exist, these are simply a few of the most substantial objections.
Prior to the PATRIOT Act, but in the Wake of 9/11, The JUSTICE DEPARTMENT CHALLENGES • Among the effects of Khalid Al-Mihdar, one of the 9/11 terrorists, was a note containing the name “Osama” and a telephone number. The number led investigators to: • Osama Awadallah – a Jordanian man in the United States on a student visa. Osama denied any knowledge of Al-Mihdar, but a search of his possessions found that he was written the name “Khalid.” • The Justice Department lacked sufficient evidence to charge Awadallah, the connection was sufficient to justify his detention.
Detain Without Charge • In the days immediately following 9/11, the U.S. Justice Department ordered the detention of hundreds (some claim thousands) of individuals who might have had knowledge of terrorist plots. • There was a widely shared belief that the attacks of 9/11 were only the beginning of the al Qaeda terrorists attacks on our homeland. • The Justice Department knew that tens of thousands of terrorists had gone through bin Laden’s training facilities in Afghanistan. • The fear was simply this: Terrorist cells might exist in the United States.
Justice Department Detainees • Abdallah Higazy, an Egyptian engineering student, was a guest at the Millennium Hotel, which is very close to the trade centers. • A hotel security guard reported that Higazy had a copy of the Koran, his passport, and a radio transceiver designed for communication with commercial aircraft. • The government detained Higazy, but later released him because the radio transceiver did not belong to Higazy, it belonged to an airline pilot who stayed at the hotel.
A Key Case in Justice Department Detainees • Jose Padilla, a former New York gang member and convert to Islam was arrested in the Chicago airport in June 2002. • The Justice department claimed to have evidence that Padilla was going to Chicago to plant a “dirty bomb.” Padilla’s attorneys argued that he was traveling to Chicago to see his son. • Padilla was detained, but the government did not charge Padilla with a terrorist act. They justified detaining him on the potential scale of destruction possible. They labeled him an enemy combatant.
Enemy Combatant Detainees • Padilla, the so-called dirty bomber was arrested in Chicago International Airport. • Padilla was taken from federal detention in Manhattan, put on a military plane for South Carolina, and thrown in a Navy brig. • That was on June 9, and Padilla has not been heard from since. • The Bush Administration labeled Padilla an Enemy Combatant. Padilla (living in the U.S.)
Uncharged Detainees post 9/11 • Of the 762 detainees, only 1 was charged with terrorism. • The detainees were held in prison for long periods of time. • Many were held secretly, unable to contact family or legal counsel. • The federal government maintained it had done nothing wrong. • The Justice Department “makes no apologies” for the treatment of detainees.
Detainees & the PATRIOT Act • Many of the Justice Department Detainees took place prior to the PATRIOT Act. • A “directive” called the Creppy Memorandum was a sweeping order that excludes normal due process rights from cases deemed of “special interest.” • Basically, the Creppy Directive: • Closed hearings to the public • Avoids discussion of the case outside the immigration courtroom • Courtroom is closed to visitors, family, and press • Non-disclosure of cases on he docket or scheduled for hearing • A complete information blackout More than 600 Cases have been designated under the Creepy Directive. It is argued that this action violates First Amendment Rights.
IMMIGRATION DETAINEES • Today the immigration agency holds more than 23,000 people in detention daily and more than 200,000 yearly. • They are not serving a sentence, they are being “detained.” • The Bush Administration invoked a Justice Department “automatic stay” to keep certain people detained even if an immigration judge ordered them released. Justice department judges are Justice Department Employees.
Special Category of Detainee • The Bail Reform Act of 1984, Section 3144 of the U.S. Code gives the government the power to detain material witnesses when there is concern that they might flee before giving their testimony. • After 9/11 the Justice Department ordered indefinite detention for dozens of witnesses who were designated as material witnesses. • Lawyers for Osama Awadallah argued that section 3144 powers only apply when a criminal court case is pending. • The federal judge in Awadallah’s case ruled that Section 3144 powers did not apply to grand jury proceedings. • The federal district court in New York ruled that Section 3144 did apply to grand jury proceedings. • The court of appeals sided with the district court in NY and upheld the power of the Justice Department to employ material witness detention.
Unlawful Combatant • The Bush Administration, to avoid court supervision of detention, uses the “unlawful combatant” label for prisoners captured in Afghanistan or Iraq. • If these prisoners were treated as prisoners of war, the U.S. would be obligated to follow the terms of the Geneva Convention. If they were detained in the U.S. in prisons, they would be subject to civilian courts. • Instead, the Defense Department has chosen to detain them in military prisons, either in the Middle East or in the U.S. Naval base at Guantanamo Bay. • Guantanamo Bay has been labeled, “the legal black hole.”
Key Court Cases Regarding Detention Without Charge • Clark v. Martinez: The Supreme Court ruled that the federal government cannot indefinitely imprison immigrants who cannot be deported. This decision limited detention to six months. • Rasul v. Bush and Hamdi v. Rumsfeld: Raised the question of whether detainees at Guantanamo Bay were beyond the jurisdiction of U.S. federal courts. The Court held that federal court jurisdiction did indeed extend to Guantanamo Bay. • The Court in Hamdi v. Rumsfeld ruled that holding person’s designated as “enemy combatants” must be given some sort of “due process” hearing. • Justice Sandra Day O’Connor left open the possibility that the “due process” hearing could be a military tribunal rather than a civilian court.
SEARCH WITHOUT PROBABLE CAUSE • The Fourth Amendment to the Constitution declares the following: • “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, an no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” • Despite the clear language of the Fourth Amendment, some government searches require no showing of probable cause. • Examples include; airport screening, border searches, and consent searches.
CONSENT SEARCHES & Racial Profiling • Consent searches happen whenever a law enforcement officer asks and receives permission to conduct a search. • Racial profiling is a key element of a consent search. • Racial profiling is a key element in border searches. • Currently, racial profiling is a key element on the war on terrorism.
PATRIOT Act Search and Seizure • Section 215 of the PATRIOT Act allows for search and seizure of: • Business information • Internet surfing data • Medical records • Firearm purchase reports • Library records WITHOUT PROBABLE CAUSE
PATRIOT ACT SEARCHES OF FINANCIAL RECORDS • Prior to the PATRIOT Act, Congress passed (1970) the Bank Secrecy Act which required banks to report all cash transactions over $10,000. • The 1986 Money Laundering Control Act make money laundering a crime and gave the federal government the authority to seize the assets of those in violation of the law. • The 1992 Money Laundering Suppression Act required financial institutions to complete Suspicious Activity Reports (SARs) for any transactions which raise legal questions. • The PATRIOT Act strengthened customer identification programs, required information sharing from financial institutions, and broadened money laundering programs to include all parts of the financial industry. • The theory is that the survival of terrorist organizations, is directly related to their ability to raise funds. • Operation Green Quest has employed a broad, systematic strategy to detect, disrupt, and dismantle terrorist financial efforts. • Title III of the PATRIOT Act boosts and broadens efforts by expanding the scope of businesses who are required to complete SARs • The 2001 International Money Laundering Abatement and Anti-terrorist Financing Act increased regulatory burdens and decreased the privacy of Americans immeasurably. • SARs are also tied to racial profiling. • SARs create a confusing mountain of paper work and data --- which some claim hampers the fight against terrorism. • The cost of SARs is reported to be about $11 Billion (to American Business)
CASE AREAS RELATED TO DETENTION WITHOUT CAUSE Enemy Combatant • Guantanamo Bay Cuba – 558 detainees are currently being held as unlawful or enemy combatants. The defense department intends to hold them indefinitely, without trial, out of concern that they will continue to pose a threat to the U.S. and cannot safely be incarcerated in their own countries. • Two U.S. citizens were also given the label of enemy combatant. Jose Padill and Yaser Hamdi. • The enemy combatant label has been used in the U.S. against U.S. citizens to detain without cause, and also against non-citizens held in Iraq and Guantanamo Bay. • One legal precedent or definition of enemy combatant says, “does not wear an enemy uniform” –setting up obvious contradictions in the governments use of the enemy combatant label. • There are accusations that the government is using the label as a matter of convenience. • The awesome power given to the President to label virtually anyone an enemy combatant becomes very “dangerous.”
Guantanamo Bay Cuba • Persons held at Guantanamo Bay are denied legal counsel, communication with family, and are kept in solitary confinement. • The case Rasul v. Bush had the ruling that detainees could bring habeas corpus appeals to challenge their designation as enemy combatants. • They court declared, “a state of war is not a blank check for the President.” • In response, the Bush administration set up the Combatant Status Review Tribunal (CSRT). • 38 of the 558 detainees were found by the CSRT to NOT be enemy combatants. • The Center for Constitutional Rights quickly denounced the proposal. Recent lawsuits have been filed to challenge the legitimacy of the CSRTs. • Conflicting court rulings on Guantanamo Bay continue to muddy the solution. • The Geneva Convention is absolutely ignored currently at Guantanamo Bay. Until detainees are considered prisoners of war, the Geneva Convention does not apply. • Included in the concept of the “detainees at Guantanamo Bay” is the question of Biopower. This is a question of the abuse of government power. • Giorgio Agamben’s political philosophy of biopower is broken into two categories: • Bios: is a political and legal existence – gull and complete human life • Zoe: is bare life, nothing more than simple biological existence. • The theory is that a detainee without rights is certain to fall victim to zoe – and the negative implications are enormous. The government de-humanizing people.
Detentions in Iraq • The United States has detained hundreds of fighters in Iraq. Estimates are that up to 5,000 will be detained. • The U.S. intends to keep them for a long time, if not indefinitely. • According to the Human Rights Watch: • “It is unlawful for the United States to hold detainees in Iraq without charge or trial while claiming it has transferred sovereignty to an Iraqi government.” • The transfer of power to the interim government in Iraq did not end the detention of prisoners. • International law allows for prisoners to be held until the end of the conflict. Under the Geneva Convention, the coalition cannot detain any prisoners after the June 30 handover of power if no charges have been filed. • The Bush administration contents that they can detain as long as there are hostilities.
Section 215 – Third Party Records • In order to expedite search and seizure laws regarding foreign threats, Congress passed the “Foreign Intelligence Surveillance Act (FISA). Since there was no risk of criminal prosecution, Congress reasoned they could allow it. FISA bypasses the 4th Amendment. • Section 215 of the PATRIOT Act amends FISA to significantly broaden investigative powers of the federal government. In particular, it allows the federal government to force anyone at all to turn over their records on clients or patients.
Section 215 – big potential abuse • Those served with section 215 orders are prohibited from disclosing the fact to anyone else. (Big 1st Amendment violation problem.) • No probable cause is required. • There is very little judicial oversight. • Section 215 is a direct violation of the Fourth Amendment.
Educational Records • Educational records have historically been afforded a great deal of privacy. • Two sections of the PATRIOT Act greatly impose: • Section 507 & 508 • These allow open access to student records. • Much of the information is used in “racial profiling.”
Ashcroft Guidelines • Ashcroft issued a revision to the guidelines on general crimes. • The changes enable the FBI to more easily investigate without any indication of criminal conduct. • In fact, the standards are substantially lower than probable cause. • The change also reduced judicial oversight. • Old guidelines allowed 90 day investigations, the new guidelines allow a year.
Sneak and Peak • One of the cornerstones of the Fourth Amendment is that the government must exercise great care before it intrudes into the private spaces of its citizens. • PATRIOT Act section 213 amends FISA which allowed “knock and announce” type searches. Now, agents do not need to knock or announce. If fact, they may now do a “sneak and peak” covert search.
PEN TRAP • Current wiretap laws distinguish between tow types of surveillance: • Content surveillance allows investigators to monitor the words sent • Transactional surveillance allows investigators to monitor where the information was sent to and from. • Section 216 of the PATRIOT Act expands the pen/trap laws. It allows: • A nationwide scope under one warrant • Warrants may be executed anywhere in the U.S. • It broadens the law to encompass the internet.
Definition of Terrorism • Ironically, the PATRIOT act grants substantial power to the government to “go after terrorists,” and yet the PATRIOT Act does not effectively define a “terrorist.” • Section 802 expands the definition of terrorist to domestic terrorism. The broad definition really allows any person or organization to be defined as a terrorist.
Judicial Certification • Many of the sections of the PATRIOT Act require judicial oversight, however: • The Judge has no ability to refuse an agent’s request to search and probable cause is circumvented • Section 216 prevents a judge from denying an application for a warrant. • It allows the government to tap phones and computers without probable cause. • A judge must “rubber stamp” the warrant.
Congressional Oversight • The war on terrorism brings fundamental questions of authority to the foreground. • There are 3 branches of government: • Executive • Legislative • Judicial • Many claim that in the war on terror, the President is consolidating power in the executive branch. Many claim he is doing “whatever he wants.” Guantanamo Bay is an instance of Bush acting without seeking input from Congress. • Concentrating power in any one branch of the government destroys the balance of power and threatens fundamental principles.
Single Jurisdiction Warrants • One enduring legal principle is that warrants issued by judges are valid in the jurisdiction in which they are authorized. • The PATRIOT Act changes that basic principle and allows warrants to be issued in one jurisdiction to be executed in another jurisdiction. • This part of the PATRIOT Act will not sunset in December.
Affirmative Summary • Affirmative Cases will likely fall into one of the following categories in regard to detainees: Detain Without Charge • The detention of “unlawful combatants” • The detention of U.S. citizens as enemy combatants • The detention of material witnesses • The detention of immigrants following 9/11 • The Supreme Court basis for presidential power to detain ethnic groups during wartime • The detention of persons seeking asylum
Affirmative Summary • Affirmative Cases will likely fall into one of the following categories regarding search and seizure: • Delayed notification search warrants, sneak and peek searches • Roving wiretaps, with broad coverage of phones, computers, emails etc. • Library patron records, business transactions • Educational searches • Searches in law enforcement databases
Affirmative Summary • Case foundations will likely be: • “rule of law” • “human rights policies copied by totalitarian regimes in other countries” • “justice” • “due process” • “preserving personal privacy” • “avoiding racial profiling”
On to the Negative Side of the Debate Topic • A good question to pursue on the negative side is whether the affirmative will use judicial, legislative, or executive actions. • Judicial/Courts: • the negative may argue that court checks are ineffective and trade off with other more effective limits. • the negative may argue that court-imposed limits on presidential power will undermine the Bush doctrine, leading to the abandonment of the democratic changes now taking place in the Middle East. • the negative may argue increased court power might also lead to judicial activism, encouraging a conservative-leaning Supreme Court to assume more control over social issues. • Legislatively/Congress: • the negative may argue a separation of powers disadvantage, since the Congress would be undermining the President’s power as commander-in-chief. • the negative may argue congressional action in the areas of traditional judicial jurisdiction can also be characterized as “court stripping.” • Executive: • the negative may argue that decreasing its own authority, the President may be seen as wishy washy and indecisive, turning away from the “hard power” approach which is currently successful in the war on terrorism
Some General Negative Strategies • Terrorism: The risk of terrorism outweighs the small loss of civil liberties. • Terrorists may launch another attack on the U.S. The attack could involve weapons of mass destruction. • Given the huge risk involved, the present small and closely monitored – risks to civil liberties are justified. • Terrorism is a real and growing threat to all civil liberties.
Hollow Hope • Court solutions are nothing but a “hollow hope” which will delay real solutions: • Gerald Rosenberg’s theory of hollow hope argues that court solutions never work as planned when they are meant to lead social change. • He argues that court actions are not only ineffective, but also counterproductive: • It creates a backlash and a rallying point for opponents of the action. • It de-activates social activism because activists are mislead into pouring financial resources into achieving court victories. • Court decisions only work when they follow a strong consensus in public opinion. • Public activism is currently growing against THE PATRIOT ACT. • The bottom line with hollow hope is that stepping in with artificial and partial solutions will do nothing but short-circuit the cultural movements.
Bush Doctrine • Democracy is spreading throughout the Middle East: • This strategy highlights the importance in U.S. foreign policy of maintaining credibility of the Bush administration. • The “Bush Doctrine” holds that the U.S. will take preventative measures against terrorism, even if that means taking on the Taliban or Saddam Hussein. • Many critics argue that the doctrine has alienated the U.S. from the international community. • Supporters of the doctrine point to a recent surge of democracy in the Middle East as proof that Bush had the correct prescription all along. • The Iraqi elections are a visible sign that the U.S. policy might be working. • This strategy allows the negative to argue that democratic pressures are now forcing positive changes in Iran, Egypt, Saudi Arabia, and even Syria.