Today's American: How Free? - The civil liberties implications of counterterrorism policies

In the history of the United States, the American commitment to civil liberties has frequently been put to the test. The Alien and Sedition Acts of the late eighteenth century, the suspension of habeas corpus during the Civil War, the persecution of war critics during World War I and the Red Scare that followed it, the internment of Japanese Americans during World War II, the McCarthyite phenomenon during the early cold war, and the government's campaign of surveillance targeting opponents of the Vietnam War – all were driven by a perceived need to protect the United States against foreign adversaries or internal subversion. The darker chapters of American history, especially those involving crackdowns against immigrants and political dissent, have almost always occurred during times of war or the threat of war.

It is within the context of a history in which the rights of the individual have been placed in jeopardy mainly during wartime that we must assess American counterterrorism policies in the wake of the September 11, 2001, attacks on the United States.

This chapter deals with those aspects of President George W. Bush's counterterrorism agenda that have drawn criticism from civil libertarians and others in the United States and abroad, including the USA PATRIOT Act, warrantless domestic surveillance, extraordinary renditions, harsh detention and interrogation policies, the opening of a special detention facility at Guantanamo Bay, and efforts to curtail judicial review of such matters. The report details the arguments advanced against these policies as well as those articulated by the Bush administration and its supporters. But this is not a simple "on the one hand, on the other hand" assessment. The chapter shows that a number of the actions taken by the administration in its war on terrorism present genuine threats to the individual rights of American citizens and of foreign citizens caught up in the counterterrorism net.

At the same time, it is important to point out that the setbacks to individual rights during the war on terrorism pose less severe threats to American liberty than those that arose during the major conflicts of the past. The United States has not declared a wholesale suspension of habeas corpus rights, outlawed political dissent, placed tens of thousands of nonwhite residents in domestic detention centers, ordered security services to conduct campaigns of surveillance against war critics, or blacklisted entertainers and academics who differed with the policies of the federal government. Nor has the government taken sweeping action against the press, despite article after article that revealed sensitive information about counterterrorism initiatives.

In an evaluation of the administration's policies, there is also the question of whether the laws and techniques developed to cope with traditional military conflicts and espionage tactics are suited to a conflict involving inchoate, global terrorist networks that disregard the traditional rules of warfare and are committed to inflicting massive casualties on the civilian population of the United States and other countries. Civil libertarians and others have argued strongly that the laws and policies devised to deal with traditional warfare are sufficient to cope with the threat of terrorism. They may be right. But at this point the United States and other democratic societies are still grappling with this extremely important issue.

Finally, as this chapter points out, the countervailing forces of American democracy have tempered a number of the administration's more ambitious initiatives and will no doubt have an important impact on the shape of America's counterterrorism regime in the future. The courts, Congress, and the press have all played an important role in forcing changes in the administration's approach; their role will, if anything, become more significant as counterterrorism policies are further refined and moderated.

The USA PATRIOT Act

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (known as the USA PATRIOT Act, or simply the PATRIOT Act) was signed into law by President Bush on October 26, 2001. It was sought by the administration and passed by Congress in response to 9/11, and was intended to expand the authority of law enforcement officials and intelligence agents to combat terrorism in the United States and abroad. The PATRIOT Act amended many existing U.S. statutes, including immigration laws, banking laws, anti-money laundering laws, and the 1978 Foreign Intelligence Surveillance Act (FISA). Although the law enjoyed widespread approval in Congress when it was passed, and despite its renewal in March 2006 by a vote of 280 to 138 in the House, many of its provisions are still highly controversial and have been challenged in court.

This controversy is particularly important because the use of the PATRIOT Act both leads and perpetuates a long-term broadening of governmental powers. Many of the most hotly disputed provisions are modeled on preexisting antiracketeering statutes. These statutes had strengthened the penalties for certain offenses committed by members of criminal organizations, and lowered the government's burden of proof in criminal investigations and trials.¹ Although they are controversial even as applied to their original target, organized crime, antiracketeering laws are now being used to prosecute other crimes as well. In a similar way, many of the antiterrorism tools provided in the PATRIOT Act are now being used to pursue those suspected of other crimes, particularly drug crimes.

The PATRIOT Act is divided into 10 titles. Title I establishes a federal fund for counterterrorism efforts and authorizes the president to seize funds belonging to any "foreign person, foreign organization, or foreign country" which he finds has participated in a terrorist attack against the United States. This provision is modeled on criminal asset forfeiture laws, which allow the government to seize the assets of accused criminals without due process.

Title II amends FISA to allow greater surveillance of suspected terrorists and spies, both foreign and domestic. The provisions of Title II are among the most contentious parts of the act. Detractors argue that the increased surveillance they permit impinges on individual rights without meaningfully increasing protection from terrorism.

Under the U.S. Constitution's Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, government searches in criminal investigations cannot be undertaken without warrants specifying the place to be examined and the reasons for the action. FISA allows the government to conduct warrantless searches if a federal judge finds probable cause that the target is conducting espionage for a foreign power. However, according to Title II of the PATRIOT Act, if the government merely certifies to a judge that a search is related to terrorism, the judge has no authority to reject the search application. In July 2002, the Justice Department said of this provision, "Such an order could conceivably be served on a public library, bookstore, or newspaper."² The University of Illinois reported that in the months following 9/11, 10.7 percent of all libraries received requests for reports about patrons' reading materials. Because the recipients are gagged under the law, such requests may be significantly underreported.³

Title II specifically authorizes the government to use "trap and trace" devices and pen registers – which provide information about telecommunications sent and received from a given source – against any non-U.S. citizen in the United States or against any person suspected of involvement with international terrorism or clandestine intelligence activities. Title II also authorizes "roving surveillance," permitting the government to intercept communications without specifying the facility or location. Instead, the government may avail itself of all the information, facilities, or technical assistance necessary to monitor a given target while protecting the secrecy of its investigation. Critics have noted that under the PATRIOT Act, authorities need not identify the target to obtain a wiretap, but can instead establish "John Doe" roving taps. The authorization of roving surveillance was designed in part as a response to new technologies such as cellular telephones, e-mail, and other means of rapid communication.

Although Title II requires warrants for searches and record seizures in terrorism investigations, it does not require the government to notify those being searched and indeed requires officials to keep their searches secret. Because these searches are performed without the knowledge of property owners, the Federal Bureau of Investigation (FBI) calls them "sneak and peek" searches. While warrants for access to records require the authorization of a judge, an order to obtain records may be granted ex parte, and warrants may not disclose the reason for the search. These sneak and peek warrants have since been used in drug cases and other ordinary criminal matters.⁴

Title III attempts to cut off funds to terrorist organizations by strengthening banking rules against international money laundering. It requires banks and other financial institutions to file reports with the federal government about transactions in excess of $10,000, and prohibits financial institutions from notifying customers when they report suspicious activity to the government. It also expands U.S. jurisdiction over financial crimes committed outside of the United States.

Title IV enhances the power of the attorney general and federal immigration authorities to prohibit people affiliated with terrorist organizations from entering the country. Critics note that the law does not provide for any judicial oversight of the "terrorist" designation of people or groups. Title IV also requires the attorney general to detain aliens engaged in activities that endanger national security. After these aliens have been held for six months, the attorney general must determine whether they still represent a threat. However, so long as the attorney general reviews and recertifies the threat every six months, aliens may be held indefinitely.

Title V of the PATRIOT Act contains a highly controversial provision that greatly expands the authorized uses of National Security Letters (NSLs). An NSL is a form of administrative subpoena that was created by FISA in 1978. FISA authorized the federal government to use NSLs to request that an electronic communication service, such as a phone company, provide information about its subscribers and their activities. NSLs were to be used only against persons directly suspected of terrorist activity, and companies were not permitted to tell these persons that the government had accessed their records.

NSLs have always been controversial because unlike other warrants, they do not require judicial oversight and do not allow subjects to know that they are being monitored. However, Title V of the PATRIOT Act expands the number of federal agents who may authorize the use of NSLs. It also permits the use of NSLs against a far broader category of targets: persons whose information is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."

Title VII of the PATRIOT Act allows federal and state law enforcement agencies to share more information with one another than they previously could, and to "make grants and enter into contracts" with nonprofit organizations to stop criminal activities that cross jurisdictional boundaries.

Almost six years after it was passed, the nation remains divided over the PATRIOT Act. Eight states and 396 cities and counties have passed resolutions condemning the law as a violation of civil liberties. At least one city has passed a law barring city employees from complying with federal investigations that would violate civil liberties, although some experts question the legality of such an ordinance. Surveys have reported that at least half of Americans are concerned that tactics used in fighting terrorism may violate civil liberties.

National Security Agency Wiretapping Controversy

The PATRIOT Act is not the only post-9/11 measure to have awakened concerns about civil liberties. In December 2005, the New York Times reported that the National Security Agency (NSA) was eavesdropping on telephone calls between people in the United States and associates in foreign nations.⁵ Under an ongoing program, the NSA was monitoring certain calls without obtaining a FISA warrant either in advance or retroactively. Bush had secretly authorized the program, claiming that the Constitution afforded him broad, inherent powers that superseded legislation like FISA. He also cited a resolution passed by Congress shortly after 9/11 that authorized him to use force in combating terrorism.

In response to the revelation of the NSA program, the Bush administration has asserted that the FISA warrant requirement is slow and cumbersome and had been hindering terrorism investigations. Some administration officials have said that if the NSA program had been in effect in 2001, it might have caught some of the 9/11 hijackers and averted the attacks.⁶ But critics of the program note that FISA permits the NSA to seek retroactive warrants up to three days after it conducts surveillance, so that no surveillance need be delayed by the warrant process. Indeed, U.S. District Court Judge Royce Lamberth, presiding judge of the FISA court from 1995 to 2002, has in recent public remarks vigorously defended the court's speed, efficiency, and responsiveness, including specifically on the morning of September 11, 2001.⁷ Furthermore, and notwithstanding Lamberth's insistence that the FISA court is not a pro forma process, the warrants are obtainable; through 2004, the court had denied only five of the 18,766 warrants the government had requested.

Despite the president's sweeping legal assertions, on August 17, 2006, a U.S. District Court judge found the NSA wiretapping program to be illegal under FISA and unconstitutional under the First and Fourth amendments, and ordered warrants to be obtained for all wiretaps. The judge's ruling has been stayed pending appeal.⁸ On January 17, 2007, Attorney General Alberto Gonzales announced that the special presidential authorization allowing the warrantless surveillance would not be renewed, and that all future surveillance of terrorism suspects would be subject to the approval of a FISA court. In August 2007, Congress enacted legislation, to remain in force for only six months, that legalized warrantless wiretaps of American citizens in terrorism cases. As Congress was debating whether and how to amend that legislation in the autumn of 2007, the Democratic majority supported provisions that would require court approval for a number of procedures used by the government, including the method for selecting those subjected to surveillance. A related matter involved the question of legal liability for U.S. corporations that have cooperated with the NSA by providing it with data, apparently including e-mail and telephone communications between persons in the United States, as well as between persons in the United States and others abroad. With lawsuits pending against major telecommunications firms, the Bush administration was trying to persuade Congress to provide them with immunity for their handling of customers' information.⁹

The Extraordinary Rendition Program

Extradition treaties between the United States and many foreign governments require U.S. officials to arrest and extradite individuals suspected of having committed crimes in other signatory nations, and for whom arrest warrants have been issued in those nations. This practice is known as rendition. However, since the mid-1990s, the United States has engaged in "extraordinary rendition": turning over suspected criminals or terrorists to foreign governments for interrogation, trial, or imprisonment, even if no specific warrants have been issued for their arrest. Human rights advocates allege that the practice may allow suspects to be tortured in the countries to which they are taken.

The Central Intelligence Agency (CIA) first used extraordinary rendition in cooperation with foreign governments that were trying to investigate and dismantle militant Islamist organizations, particularly al-Qaeda. The policy was deemed necessary because without it, terrorist suspects held in the United States were entitled to due process rights that the CIA feared could jeopardize intelligence sources. The CIA also believed that intelligence agencies in suspects' home countries would be more successful than American officials in obtaining information from them, because of their common language and culture. The administration of President Bill Clinton accordingly issued an order in 1995 that permitted the practice.

Since 9/11, the United States has continued to use extraordinary rendition in terrorism investigations that involve foreign-born suspects who are believed to have key information. The government does not release information about the identity of suspects rendered, the countries to which they are taken, or the conditions under which they are held. However, some cases do come to public attention.

On September 26, 2002, for instance, Canadian citizen Maher Arar was detained by U.S. officials at New York City's JFK Airport, where he was awaiting a connecting flight on his way home from a vacation. In early October, U.S. authorities transferred Arar, who was born in Syria but had lived in Canada since he was 17, to the custody of the Syrian government as a suspected terrorist. He had been under U.S. investigation due to his relationship with two individuals suspected of ties to al-Qaeda.

Arar later reported that the Syrians held him for 10 months in a windowless cell, where he was beaten and tortured in an attempt to make him confess to terrorist activities.¹⁰ He said that under this pressure he did confess that he had worked with terrorists in Afghanistan.

Canadian officials were not informed of Arar's rendition until several days after the fact. When it did learn that he had been rendered, Canada issued a temporary travel advisory warning Canadians born in Iran, Iraq, Libya, Sudan, or Syria "to consider carefully whether they should attempt to enter the United States for any reason, including transit to or from third countries." In addition to the rendition, Canada expressed concern about a U.S. decision to photograph, fingerprint, and monitor travelers born in those countries regardless of their current citizenship. In November 2003 the Bush administration agreed to exempt Canadian travelers from these identification and monitoring regulations, although they are still in effect for those without Canadian citizenship.¹¹

After prolonged negotiations between the Canadian government and Syria, Arar was released and returned to Canada in October 2003. He was never charged with a crime. He has since sued the U.S. government, alleging that it was aware of Syria's policy of torture and that it deported him in violation of U.S. law and treaty obligations with Canada. Attorney General Gonzales responded that the United States had received assurances from Syria that Arar would not be tortured.

The U.S. government has also been accused of holding and torturing foreign nationals in its own secret prisons in violation of international law. According to one lawsuit filed by the American Civil Liberties Union (ACLU), the CIA in January 2004 took custody of German citizen Khaled El-Masri, who had been arrested by the government of Macedonia while he was vacationing in that country. The CIA took him to Afghanistan, where it held him for four months in a prison known as the "Salt Pit." While in custody, El-Masri alleges that he was beaten, threatened, and denied communication with a lawyer or his family. When he and other prisoners began a hunger strike to protest the conditions of their detention, he was force-fed and medicated under the supervision of American doctors. It is suspected that El-Masri was detained because his name was similar to that of terrorism suspect Khaled Al-Masri. He was warned as a condition of his release not to discuss his detention.¹²

In May 2006 a U.S. District Court ruled that El-Masri could not sue the CIA and the U.S. government for information about the extraordinary rendition program or for compensation for his detention. The court stated that El-Masri's lawsuit could jeopardize national security by forcing the government to disclose information about antiterrorism strategies.

In September 2006, President Bush publicly acknowledged for the first time that the CIA had operated secret prisons abroad. Some commentators have also alleged that the U.S. operates secret prisons aboard naval ships.¹³ However, the president denied that torture had been used in American-run facilities, saying American agents used "alternative" interrogation methods to gather information from suspected terrorists. While these tactics were "tough," the president said, they were also "safe and lawful and necessary." State Department and administration officials said no detainees were being held in secret prisons at that time, but maintained that the CIA still had the authority to detain and question suspects in the manner described.

In response to President Bush's revelation, members of Congress began discussing new legislation to govern the use of military tribunals for terrorism suspects. Senator Carl Levin, a Michigan Democrat who became the chairman of the Senate Armed Services Committee in January 2007, promised a full investigation into the extraordinary rendition program and alleged abuses by the CIA. The European Parliament conducted an investigation of its own and found that many European Union member states had assisted in the capture and extraordinary rendition of suspects by the United States.¹⁴

Guantanamo Bay Detainment Camp

On November 13, 2001, President Bush issued an order authorizing the capture and detention of suspected al-Qaeda terrorists by military forces,¹⁵ and in 2002, the U.S. military opened a prison and interrogation center at the Guantanamo Bay Naval Base in Cuba. Today the prison holds people suspected by the executive branch and the armed forces of being operatives of al-Qaeda or the Taliban, and most of them were captured by the United States or its allies on the battlefield in Afghanistan or Iraq. Both the status of these detainees and their treatment in detention are highly controversial in the United States and abroad.

A total of 775 detainees (or "enemy combatants") have been held at Guantanamo Bay, although approximately one-third have now been released. They include citizens of Pakistan, Saudi Arabia, China, the United Kingdom, and 30 other countries. In the 2001 order, President Bush specified the conditions under which the detainees would be held, calling for humane treatment, the free exercise of religion, and medical treatment, but excluding the right to challenge their detention or appeal the decisions of military tribunals in U.S. courts.

The stated reason for holding the prisoners is to interrogate them about ongoing terrorist activities. In the beginning, the Defense Department maintained that enemy combatants were not entitled to the protections of the Geneva Conventions,¹⁶ and that the government was authorized to interrogate them using techniques that would otherwise be banned. Officials have issued several sets of orders approving interrogation techniques for use at Guantanamo Bay. In December 2002, Defense Secretary Donald Rumsfeld authorized a set of interrogation guidelines for Guantanamo that had been suggested in an action memo from William J. Haynes II, the Pentagon's general counsel. Among the approved techniques were: the use of physical "stress positions"; 20-hour interrogations; removal of clothing; using a detainee's phobias (such as fear of dogs) to induce stress; deception to make the detainee believe the interrogator was from a country with a reputation for torture; the use of falsified documents and reports; isolation for up to 30 days; and sensory deprivation.¹⁷

Under pressure from civilian and military attorneys, led by Navy General Counsel Alberto Mora, the Defense Department in January 2003 agreed to rescind orders for these techniques. In April 2003 new interrogation guidelines were released, eliminating some of the harsher measures approved in 2002. However, former prisoners and visitors to Guantanamo Bay have alleged that inmates have been drugged, beaten, electrocuted, and denied food and water. One FBI agent who witnessed interrogations told the New York Times, "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more."¹⁸ The government has denied these claims.

In October 2005, President Bush signed the Detainee Treatment Act of 2005, which limited the interrogation techniques allowed at Guantanamo Bay and other American military detention facilities to those identified in the Army Field Manual.

Some legal experts are also concerned about the status of the Guantanamo detainees under international and U.S. law. The U.S. government at the time of their capture maintained that detainees did not have the same due process rights accorded to prisoners of war, in keeping with the executive order. In particular, the government argued that because Guantanamo Bay is in Cuba rather than in the United States, U.S. courts did not have jurisdiction to consider the legality of their detention. Amnesty International has expressed the views of many human rights advocates in asserting that as a result, the detainees are "held in effect in a legal black hole, many without access to any court, legal counsel or family visits."

The legality of the detainees' status has been the subject of numerous lawsuits, most of which have been decided against the Bush administration. In 2004, Rasul v. Bush challenged the U.S. government's practice of denying Guantanamo detainees the ability to file habeas corpus petitions in federal court. The Supreme Court ruled that because the United States has "complete jurisdiction" over the base, detainees may file habeas corpus petitions in American courts to challenge the validity of their detention.¹⁹

In response, the Defense Department in July 2004 announced the creation of Combatant Status Review Tribunals, in which detainees could contest their status as enemy combatants. The detainees would be allowed to view all unclassified evidence against them and to argue before military officials that they had been improperly designated and should be released. In February 2005, a federal judge ruled that the combatants were entitled to consult with legal counsel and to view all of the evidence against them in order to mount a defense.²⁰

The Supreme Court dealt another blow to the Bush administration in Hamdan v. Rumsfeld (2006). In this case the court held that special military commissions set up to try detainees, which were separate from the review tribunals, "violate both the [Uniform Code of Military Justice] and the four Geneva Conventions."²¹ The court found the administration's plan for the commissions inadequate, since it deviated from normal courtroom procedure – without explicit approval from Congress – by admitting evidence kept secret from defendants, allowing testimony gained through torture, and submitting appeals to the executive branch rather than to an appellate court. As a result of the decision, in July 2006 the Bush administration was forced to reverse its policy regarding the Geneva Conventions and state that all detainees at Guantanamo and in U.S. military custody elsewhere were now entitled to Article 3 Geneva protections.

On October 17, 2006, President Bush signed the Military Commissions Act to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions." The act authorizes the president to create commissions according to the rules set forth in Hamdan. It has been criticized for denying habeas corpus rights to enemy combatants or aliens awaiting status determinations, and for allowing the government to detain them indefinitely without trial. However, the act does create a stronger legal basis for the military trials and limits the commissions' use to non-U.S. citizens.

American Citizens Held as Enemy Combatants

The enemy combatants held at Guantanamo Bay are foreign nationals. But in April 2002, officials at Guantanamo learned that Yaser Esam Hamdi, an enemy combatant captured while fighting for the Taliban in Afghanistan, was actually a U.S. citizen. Upon this discovery Hamdi was transferred to a military prison in Virginia, where he was held for questioning without access to a lawyer until December 2003. The government maintained the right to detain him indefinitely as an enemy combatant and filed no charges against him. In June 2002 Hamdi's family filed a habeas corpus petition and asked a federal judge to order the government to charge Hamdi or release him.

In the June 2004 ruling Hamdi v. Rumsfeld, the Supreme Court ordered the government to provide Hamdi with access to counsel and the opportunity to review and rebut the evidence against him. However, Justice Sandra Day O'Connor, writing for the court, also said that the rights of the accused must be balanced against the security interests of the nation as a whole. Requiring an ordinary criminal trial for Hamdi would impede the government's ability to maintain national security, while denying him the right to challenge his classification as an enemy combatant would grant him too little protection. O'Conner argued that Hamdi must have his case heard by an impartial, properly constituted tribunal, but that the tribunal could be run without some of the normal procedural protections afforded in a criminal court, such as a ban on hearsay evidence, and with the burden of proof on the defendant rather than the government.

In October 2004, the government announced that it had agreed to release Hamdi on the condition that he renounce his U.S. citizenship and move to Saudi Arabia, where the Saudi government would monitor his movements. (He had been born in the United States to Saudi parents, and the family had moved to Saudi Arabia when he was a child.) Hamdi also relinquished his right to sue the government over his detention.

Although Hamdi pertained specifically to citizen-detainees, the case had significant implications for the treatment of all alleged enemy combatants, including foreign nationals. Based on the holdings of Hamdi and Rasul, the U.S. government has conceded the right of all detainees to consult with legal counsel and to challenge their status as enemy combatants before impartial tribunals.

Another American citizen captured in Afghanistan, John Walker Lindh, was treated differently. Because he was immediately identified as an American, Lindh was detained at a Marine Corps base in Afghanistan and questioned about his affiliations with the Taliban and al-Qaeda. He signed a confession, but later alleged that his request for an attorney had been denied and that he had been coerced into waiving his right to remain silent. Attorney General John Ashcroft announced that Lindh would be tried in the United States on charges of conspiracy to commit murder and conspiracy to commit terrorism. Because his confession would likely be excluded under U.S. law as the result of coercion, the government offered Lindh a plea bargain in return for his cooperation. He is currently serving a 20-year federal prison sentence.

Jose Padilla, an American citizen accused of being a terrorist, was arrested at a Chicago airport in May 2002 and held on a material witness warrant in connection with 9/11. Padilla challenged the warrant, and on June 9, 2002 – two days before a judge was scheduled to rule on his challenge – President Bush ordered Defense Secretary Rumsfeld to detain him as an enemy combatant. The government alleged that Padilla had intelligence about future attacks on the United States and posed a continuing threat to national security. He was moved to a South Carolina military prison, where his attorney and family were denied access to him.

Padilla's attorney filed a habeas corpus petition naming Rumsfeld as the respondent. On December 18, 2003, the U.S. 2nd Circuit Court of Appeals in New York City found the habeas petition valid and ruled that "the President lacked inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat." The court ordered Padilla released from military prison within 30 days, whereupon the government could choose to try him in civilian court.²² The appeals court agreed to stay the release order pending a Supreme Court challenge.

After a series of procedural appeals that bounced Padilla's case through the federal court system for nearly two years, in September 2005 a three-judge panel of the U.S. 4th Circuit Court of Appeals in Richmond, Virginia, ruled that President Bush did indeed have the authority to detain Padilla without charges, holding that such detention during wartime is vital to national security.²³ The federal government moved Padilla to civilian custody and indicted him in November 2005 on charges of conspiracy, but not terrorism-related offenses. The move effectively averted a Supreme Court review of the Richmond court's judgment. On April 2, 2006, the Supreme Court formally declined Padilla's appeal, which had dealt with his military confinement, but Chief Justice John G. Roberts Jr. noted that the court would monitor the civilian trial to ensure that he received the protections "guaranteed to all federal criminal defendants."

Padilla alleges that he was tortured while in detention, and his lawyers have asked to present evidence of this to his jury. In November 2006, the Justice Department filed a petition to block them from doing so. Padilla's lawyers have also asked the judge in his case to dismiss the charges against him due to the severity of the abuse they say he suffered in detention. These efforts have been rejected by the courts, and in August 2007 he was convicted by a federal jury on conspiracy charges. Sentencing was scheduled to take place in December 2007.

Immigration

Because many of the 9/11 terrorists entered America legally, the government has since sought to tighten control of the nation's borders. The PATRIOT Act and other laws have provided funding to this end, and in March 2003, immigration fell under the jurisdiction of the new Homeland Security Department.

In addition, federal immigration authorities have been granted new power to detain illegal immigrants who cannot be returned to their countries of origin. Any who enter the United States illegally or commit crimes on U.S. soil, but who are stateless or whose home countries will not take them back, can be detained indefinitely. More than 3,000 people are now being held indefinitely by the immigration service.

Title IV of the PATRIOT Act requires the attorney general to monitor the activity of foreigners who enter the United States on student visas, as some experts have noted that student visas could easily be exploited by potential terrorists. Hani Hanjour, a 9/11 hijacker, had used a student visa to enter the country. However, increased scrutiny of visa applicants has created a hardship for many foreign students enrolled in American universities, especially those from "high-risk" nations.²⁴

The immigration provisions of the PATRIOT Act have also affected some refugees seeking asylum from countries associated with terrorism. Under current law, asylum-seeking immigrants may be detained or deported if they have ever provided "material support" to terrorist organizations. However, the law makes no distinction between voluntary and coerced support. Some refugees seeking asylum in the United States – including those from Colombia, Burma, and other nations – have been denied entry because the terrorist groups in their home countries extorted money from them.²⁵

The Transportation Security Administration

Before 9/11, airport security in the United States was a private enterprise. It was handled by companies under contract with government agencies that operated individual airports, companies that owned airport terminals, or individual airlines operating their own terminals. Security procedures were largely standardized, with metal detectors and other measures common to all major airports and carriers. Passengers were required to submit to searches of their persons and property as a condition of buying their tickets and boarding their flights.

After the 9/11 hijackers succeeded in bringing weapons aboard four commercial passenger jets, many critics of the decentralized American system charged that private companies were not doing enough to protect the nation from the threat of airline hijacking. They argued that because air travel constitutes interstate commerce and affects national security, the federal government should control airport security.

On November 19, 2001, President Bush signed the Aviation and Transportation Security Act, which authorized the Transportation Department to federalize airport security. The department created the Transportation Security Administration (TSA), which oversees security for highways, railways, mass transit, ports, and domestic airports. In 2003, the TSA was placed under the new Homeland Security Department.

The TSA, which today employs more than 40,000 screeners, has been criticized by air travelers and civil liberties groups alike. Many of the complaints have developed into lawsuits concerning privacy issues, but they have been largely unsuccessful. While the Fourth Amendment generally protects Americans from searches of their persons or property without warrants, the courts have historically granted wider latitude to government agents participating in a systematic law enforcement program designed to prevent terrorism and other crimes.

In United States v. Skipwith (1973), the U.S. 5th Circuit Court of Appeals in New Orleans, Louisiana, held that people preparing to board planes, "like those seeking entrance into the country, are subject to a search based on mere or unsupported suspicion."²⁶ Random searches are allowed under certain circumstances, and law enforcement officials are given the benefit of the doubt in identifying probable cause for any specific search in light of their specialized training.²⁷ Airport screening has additionally been found constitutional because in most cases, passengers have the opportunity to refuse a search by refusing to fly. Passengers imply their consent to be searched when they attempt to fly, and that consent may not be revoked once passengers have presented themselves for boarding.²⁸

Although security agents have broad authority to search passengers and profiling is permitted, U.S. law does not permit race or ethnicity to be the sole basis of the profile that triggers a search. Nonetheless, since its inception the TSA has been plagued by accusations that its screeners single out passengers who appear to be of Arab descent or Muslim faith.

In response, the TSA has implemented "racially neutral profiling," which targets passengers who behave suspiciously, for instance by paying cash for airline tickets, buying one-way tickets, or appearing agitated at security checkpoints. Passengers are also now subject to random additional searches based on their ticket numbers. Yet other critics charge that terrorists can adapt to behavior-based searches, and that random searches waste resources on passengers who are unlikely to be terrorists.

A no-fly list of suspected terrorists had been in use prior to 9/11, but it was greatly expanded following the attacks. While the list had 16 names on September 11, 2001, the CBS news program 60 Minutes has claimed that a March 2006 copy had 44,000 names. Since 2001, there have been hundreds of false identifications in which individuals are delayed or prevented from flying because their names are similar to those on the list. Following a lawsuit brought by the ACLU in 2004, the government agreed to release details of how the list was compiled and used.

Some experts protest that many of the TSA's procedures amount to "security theater,"²⁹ designed to make passengers feel safer without actually enhancing security. For example, after Richard Reid attempted in December 2001 to blow up a jet with a bomb concealed in his shoes, the TSA began inspecting shoes at airport terminal checkpoints. In August 2006, in response to reports that terrorists planned to blow up planes using liquid explosives, passengers were forbidden to bring liquids or gels aboard planes. TSA officials and their defenders say these measures prevent terrorists from using known methods of attack and deter potential terrorists by creating an environment in which they are likely to be caught.

Some state and local law enforcement agencies have implemented their own search policies in response to threats against transportation infrastructure. In July 2005, after the London subway was bombed, the New York City Police Department began randomly searching bags carried by passengers entering the city's subway system. Yet because the police eschewed profiling, some argued that the searches would be ineffectual, while other critics charged that they violated the Fourth Amendment. A federal judge ruled in December 2005 that the searches were lawful,³⁰ and in October 2006 the Massachusetts Bay Transit Authority announced that it intended to introduce a similar program.

These practices have been compared both favorably and unfavorably to the system used by the Israeli national airline, which candidly applies enhanced scrutiny to Arabs and foreign nationals. Although many revile ethnic profiling, even some critics of the technique acknowledge that Israel has effectively prevented hijackings. Proponents of profiling have argued that prohibitions against it should be relaxed to make the American system more efficient.

Counterterrorism Efforts in Other Western Democracies

Other Western democracies have also changed their laws in the wake of 9/11. The British government has outlawed the "glorification" of terrorism and authorized the indefinite detention and deportation of terrorism suspects. Italy, the Netherlands, and France have authorized increased surveillance and wiretapping, and Germany is considering legislation that would permit the government to have greater access to individuals' financial records.³¹

In the United States and elsewhere, many have expressed horror at revelations of abuse in American-run prisons abroad. Yet several European nations are quietly exploring policies of extraordinary rendition and deportation to countries where torture is practiced. Canada has tightened its immigration policies and increased domestic surveillance, both in cooperation with the U.S. government and on its own. Everywhere, it seems, democratic nations grapple with the tension between preserving cherished liberties and protecting themselves from the very real threat of terrorism.

Conclusion

As this report is written, the core institutions of American democracy continue to grapple with the issues raised by the Bush administration's counterterrorism agenda, especially the assertion of enhanced authority by the executive branch. While administration actions have met with skepticism from different quarters, the most significant pushback has come from the press and the judiciary. The press continues to ask probing questions about the consequences of antiterrorism policies, publicize acts of injustice against individuals or groups, and assess the effectiveness of administration efforts. For its part, the judiciary has forced the government to adjust or even reverse course on some aspects of counterterrorism policy, while at the same time validating other initiatives. By contrast, Congress, though at times sharply critical of administration policy, has been reluctant to challenge the president on national security issues.

Yet even now, six years after 9/11, the impact of the administration's policies on the civil liberties of Americans remains unclear. This is due in part to attempts by the administration to limit public knowledge of its actions on national security grounds. At the same time, the proposition that, as some critics have said, counterterrorism policies are placing fundamental freedoms in jeopardy and leading to massive violations of civil liberties seems to be an overstatement of current conditions, especially when viewed in historical context. Constitutional protection of civil liberties, including the rights of immigrants, is proving much more resilient than in past periods of conflict. Despite a high degree of political polarization, critics of administration policies have been free to express their views in the media, on the internet, and through many public protests. Civil libertarians and other critics have not been subject to prosecution, surveillance, or witch hunts. Indeed, careful scrutiny of civil liberties in today's United States reveals how much the country has changed since earlier times of war or crisis.

In assessing America's performance since 9/11, we must also keep in mind the dramatically new nature of the challenge that America and other democracies are facing in the rise of Islamist terrorism. Even if we put aside the American case, it is clear that the new breed of terrorist – committed, as he is, to the mass murder of civilians – is forcing democratic societies around the world to consider adjustments in both the law and the techniques of national security. Throughout Europe, democratic governments have responded to the terrorist threat by tightening antiterrorism laws, expanding the surveillance powers of the state, adding restrictions to the asylum and immigration process, and enabling the deportation of immigrants who, through action or word, seem to support terrorism. While it will take some time to establish the proper relationship between security and liberty in an age of terrorism, current trends suggest that the United States and other democracies will successfully meet the challenge.

1 See the Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or RICO, U.S. Code 18 §§ 1961-19

2 Reporters Committee for Freedom of the Press, "Questions for Attorney General John Ashcroft on the USA PATRIOT Act and its Effect on the News Media," August 20, 2003, http://www.rcfp.org/news/documents/20030820ashcroft.html.

3 University of Illinois Library Research Center, "Public Libraries and Civil Liberties: A Profession Divided," http://lrc.lis.uiuc.edu/web/PLCL.html.

4 "'Sneak-and-Peek' Law Helps More Than War on Terror," FOX News, August 15, 2005, http://www.foxnews.com/story/0,2933,165799,00.html.

5 James Risen and Eric Lichtblau, "Bush Lets U.S. Spy on Callers Without Courts," New York Times, December 16, 2005.

6 Michael V. Hayden, "What American Intelligence and Especially the NSA Have Been Doing to Defend the Nation" (address to the National Press Club, Washington, DC, January 23, 2006).

7 Walter Pincus, "Judge Discusses Details of Work On Secret Court," Washington Post, June 26, 2007.

8 American Civil Liberties Union et al. v. National Security Agency et al. (2006), http://www.aclu.org/images/nsaspying/asset_upload_file689_26477.pdf.

9 Dan Eggen, "Lawsuits May Illuminate Methods of Spy Program," Washington Post, August 14, 2007; Dan Eggen, "White House Fights Democratic Changes to Surveillance Act," Washington Post, October 11, 2007.

10 "Arar Says He Was Tortured in Syria," CBC News, October 30, 2003, http://www.cbc.ca/news/story/2003/10/30/arar_031030.html; "Maher Arar: Timeline," CBC News, January 26, 2007, http://www.cbc.ca/news/background/arar/.

11 Elise Labott, "Canada Lifts Travel Advisory on U.S.," CNN.com, November 7, 2002, http://archives.cnn.com/2002/TRAVEL/NEWS/11/07/canada.us.travel/.

12 American Civil Liberties Union, "Statement: Khaled El-Masri," http://www.aclu.org/safefree/extraordinaryrendition/22201res20051206.html.

13 "Speech of Michael Posner to the American Bar Association Center for Human Rights" (Human Rights First, Salt Lake City, UT, February 14, 2005), http://www.humanrightsfirst.org/us_law/commentary/posner_aba_0205.pdf.

14 Temporary Committee on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, Report on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners (European Parliament, January 30, 2007), http://www.europarl.europa.eu/comparl/tempcom/tdip/final_report_en.pdf.

15 White House, "President Issues Military Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism," news release, November 13, 2001, http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html.

16 See "Geneva Convention Relative to the Treatment of Prisoners of War" (Third Geneva Convention) and "Geneva Convention Relative to the Protection of Civilian Persons in Time of War" (Fourth Geneva Convention), August 12, 1949, available at http://www.ohchr.org/english/law/.

17 "Counter-Resistance Techniques," action memo from William J. Haynes II Counsel to Secretary of Defense, December 2, 2002, available at http://slate.com/features/whatistorture/LegalMemos.html.

18 Anthony Lewis, "Guantanamo's Long Shadow," New York Times, June 21, 2005.

19 Rasul v. Bush, 542 U.S. 466 (2004).

20 Carol D. Leonnig, "Judge Rules Detainee Tribunals Illegal," Washington Post, February 1, 2005.

21 Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

22 Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003).

23 "Timeline: Enemy Combatant?" CBS News, http://www.cbsnews.com/elements/2006/04/04/in_depth_us/timeline1469944_0_main.shtml.

24 Stephen Yale-Loehr, Demetrios G. Papademetriou, and Betsy Cooper, Secure Borders, Open Doors: Visa Procedures in the Post-September 11 Era (Washington, DC: Migration Policy Institute, 2005), http://www.migrationpolicy.org/pubs/visa_report.pdf.

25 Human Rights First, "Refugees at Risk Under Sweeping 'Terrorism' Bar," http://www.humanrightsfirst.org/asylum/asylum_refugee.asp.

26 United States v. Skipwith, 482 F.2d 1276 (5th Cir. 1973).

27 See United States v. Davis, 458 F.2d 819, 821 (D.C. Cir. 1972): "Conduct innocent in the eyes of the untrained may carry entirely different messages to the experienced or trained observer."

28 See United States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984), and United States v. Pulido-Baquerizo, 800 F.2d 899, 902 (9th Cir. 1986).

29 Bruce Schneier, "Last Week's Terrorism Arrests," Schneier on Security, August 13, 2006, http://www.schneier.com/blog/archives/2006/08/terrorism_secur.html.

30 McWade v. Kelly, No. 05 6754 CV (2d Cir. 2006): "That decision is best left to those with 'a unique understanding of, and responsibility for, limited public resources, including a finite number of police officers.' Accordingly, we ought not conduct a 'searching examination of effectiveness.' Instead, we need only determine whether the Program is 'a reasonably effective means of addressing' the government interest in deterring and detecting a terrorist attack on the subway system."

31 Katrin Bennhold, "Europe, Too, Takes Harder Line In Handling Terrorism Suspects," International Herald Tribune, April 17, 2006.