Between 1993 and 2001, three major terrorist incidents in the United States resulted in government action with potentially significant impact on civil liberties. On February 26, 1993, Ramzi Yousef and others set off a truck bomb inside the World Trade Center, killing one person and injuring seven others; the attack caused much less damage than had been planned. On April 16, 1995, Timothy McVeigh, a Gulf War veteran, and Terry Nichols destroyed the Murrah Federal Building in Oklahoma City with a massive truck bomb, killing 168 people. Finally, on September 11, 2001, nineteen terrorists hijacked four jet airplanes, killed the pilots, took over the controls, and crashed three of the planes into the World Trade Center in New York and the Pentagon in Washington, D.C. Passengers on the fourth plane fought back and forced the hijackers to crash that plane in Pennsylvania, short of its target, which was believed to have been the White House or the U.S. Capitol. Nearly three thousand people were killed, and thousands more were injured. The Federal Aviation Administration grounded all flights for the first time ever, the Dow Jones Industrial Index dropped 7 percent when it reopened after four days of being closed, and economic losses due to the attacks have been estimated at over $100 billion.
Terrorism, particularly on the scale of the 9/11 attacks, can force the government and the people to reevaluate the balance between civil liberties and national security. It is commonly believed that in times of crisis the government, with the acquiescence of the courts, contracts civil liberties and that the lost liberties sometimes remain lost, even when the crisis has passed. Some dispute this account, pointing out that some crises have resulted in the expansion of civil liberties, such as the Civil War and World War II, which integrated the military.
The United States responded to these terrorist attacks in a number of ways, notably, by enacting the Antiterrorism and Effective Death Penalty Act of 1996 and the USA PATRIOT Act of 2001. These acts created new federal crimes aimed at preventing terrorism but that have also raised concerns that they infringe First Amendment rights. In addition, the government has taken actions that may infringe the right to equal protection, to assistance of counsel in criminal prosecutions, and to open access to court hearings.
The Constitution generally forbids the government from discriminating on the basis on race. Yet, because all nineteen of the 9/11 hijackers were citizens of four Middle Eastern nations (Saudi Arabia, Egypt, United Arab Emirates, and Lebanon) and Al Qaeda, the terrorist organization responsible for plotting the attacks, is believed to be made up of mostly Arab men, in the days immediately after the 9/11 attacks, a majority of Americans supported the use of racial profiling of Arab ancestry at airport security checkpoints and in other situations, though such support did drop off somewhat with the passage of time.
Pre-9/11 law allowed limited law enforcement use of race in traffic stops and border stops. Typical is United States v. Brignoni–Ponce (422 U.S. 873, 1975), in which the Supreme Court invalidated a traffic stop near the border that had been initiated solely because the defendants appeared to be of Mexican ancestry. The Court did conclude, however, that racial appearance might be one relevant factor among many because ‘‘[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican Americans to ask if they are aliens.’’ Just one year later, in United States v. Martinez–Fuerte (428 U.S. 543, 1976), the Court upheld a border checkpoint stop initiated solely on the basis of the driver’s apparent Mexican ancestry. The difference between the two cases, the Court explained, was that the checkpoint stop was minimally intrusive and less likely to be threatening to drivers than being pulled over by a pursuing police car.
The use of race as a factor for airport searches would obviously implicate the civil liberties rights of those whose race is singled out—in this instance, those of Arab descent. Randall Kennedy analogizes this sort of racial profiling to ‘‘a type of racial tax’’ to be paid by a subset of persons for the benefit of the entire society. The sordid treatment of Japanese Americans during World War II, when over seventy thousand American citizens were first excluded from the West Coast and then interned at detention camps due to their race, serves as a reminder of the threat to civil liberties posed by racial classifications in the name of national security. Korematsu v. United States (323 U.S. 244, 1944), which upheld the exclusion order, is generally regarded as one of the worst decisions in Supreme Court history.
Of course, the government has yet to take any actions approaching the World War II exclusion and internment in responding to terrorism. Still, its actions do raise civil liberties concerns. First, the government instituted a registration program whereby visitors from specified countries must be photographed and fingerprinted upon entry to the United States and provide updated information to the government about their addresses and schooling or employment. The overwhelming majority of the specified countries are in the Middle East. Second, the FBI has, on a number of occasions since the 9/11 attacks, sought to conduct mass interviews of Arab Americans and Arab aliens in the country. While targeted interviews of such persons may be effective, a dragnet of persons based on their ethnicity without regard for more particularized facts may do nothing more than feed harmful stereotypes and waste government resources.
One of the civil rights guaranteed by the First Amendment is the right of free association—that is, freedom to choose with whom to associate. Because terrorists often attempt to blend in with civilians, there is a tendency for the government to respond to terrorism by cracking down on people who associate with causes seen as sympathetic to the terrorists.
In response to the 1993 attack on the World Trade Center and the 1995 bombing of the Murrah Federal Building, Congress enacted federal laws prohibiting the material support of terrorism. For example, 18 U.S.C. section 2339A makes it a federal crime for anyone to ‘‘provide material support or resources or conceal or disguise the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out,’’ an act of terrorism. 18 U.S.C. section 2339B makes it a federal crime to ‘‘provide material support or resources to a foreign terrorist organization.’’
The material support prohibitions undoubtedly help the government in fighting terrorism in a number of ways. First, they may be used for what Robert Chesney calls ‘‘preventive prosecution’’ to charge and convict persons who may be plotting terrorist acts without having to wait for the terrorist plot to develop to the point where it might be too late to stop. Second, the statutes deprive foreign terrorist organizations of funding and other resources and thus make it more difficult for such organizations to carry out future terrorism.
However, the same malleability of these statutes also raises civil liberty concerns. The term ‘‘material support or resources’’ is broad enough that it might arguably criminalize the mere fact of association, thereby depriving individuals of the right to be judged on their own culpability. This concern is especially acute when one considers that some of the designated foreign terrorist organizations do not limit themselves to engaging in terrorist activity, but also provide social services. Yet, a person who donates to such an organization, hoping to further its humanitarian ends, may be guilty of violating the material support prohibitions. Faced with such a possibility, people may choose to forgo making such donations, thereby censoring their association with groups whose nonviolent goals they would otherwise support.
Thus far, however, lower federal courts have generally not been persuaded that the material support prohibitions threaten First Amendment interests enough to rule those laws unconstitutional. One reason is that courts have tried to interpret the material support prohibition laws narrowly, thus reducing the likelihood that persons will be convicted merely for unwitting association with a terrorist organization. On the other hand, there may still be an infringement of civil liberties, given that some people may choose to forgo associating with questionable organizations rather than risk prosecution.
Although the Bill of Rights does not speak explicitly of the right to privacy, one way in which a right to privacy has been enshrined is in the Fourth Amendment, which, with exceptions, requires that government officials obtain a search warrant in order to conduct electronic surveillance (such as wiretaps) of persons. However, until 1978, there were no practical limits on the government’s ability to spy domestically on foreign powers.
The Foreign Intelligence Surveillance Act of 1978 (FISA) was the culmination of Congress’s effort to balance the government’s national security needs against the individual’s privacy rights. FISA established a Foreign Intelligence Surveillance Court that was empowered to handle applications for foreign surveillance warrants. If the targets of foreign intelligence surveillance are purely foreign powers, FISA does not impose a warrant requirement on the government. If the target may be a U.S. citizen, however, the government must seek a warrant from the FISA court. Unlike traditional criminal investigation warrants, which required a showing of probable cause to believe that a crime had been or was being committed, a FISA warrant only required a showing of probable cause that the target of the surveillance was a foreign agent. However, the government official seeking the FISA warrant also had to certify that the purpose of the surveillance was to gather foreign intelligence information. Because this information could thus be obtained without a showing of probable cause that a crime has been or will be committed (which is the standard for obtaining a criminal search warrant), FISA warrants raised a concern that they might be used improperly by domestic law enforcement officers to obtain evidence that they would not be able to get using a criminal search warrant. What arose in the 1980s to address this perceived concern was often described as ‘‘the wall.’’ FISA warrants were limited to federal agents who were gathering foreign intelligence, not those working on criminal prosecutions.
After the 9/11 attacks, however, Congress determined that the wall unduly restricted necessary sharing of information between government agencies. This perception was reinforced when the national 9/11 Commission issued its report, finding among other things that FBI counterintelligence agents and criminal investigation agents each had pieces of the 9/11 conspiracy but had not apprised one another of what they knew. The consequence was that no one put together all the pieces of the information, which might have led to an opportunity to capture one of the 9/11 hijackers and thereby unravel the plot.
The USA PATRIOT Act, among other things, ‘‘lowered’’ the wall by changing the required showing from ‘‘the purpose’’ to ‘‘a significant purpose’’ to gather foreign intelligence information. The government might have a significant purpose of gathering foreign intelligence information even as it has a primary purpose of gathering evidence for use in criminal prosecution; under the revision of FISA, such a dual purpose would not be prohibited. The government has argued in a July 2004 Report from the Field: The USA PATRIOT Act at Work that the lowering of the wall has enabled it to disrupt numerous terrorist plots and convict various persons of terrorism-related crimes (as well as nonterrorism criminals such as child pornographers) that it would not have been able to do in the past. At the same time, the lowering of the wall has again raised the possibility that criminal investigators may circumvent the traditional warrant requirement, thereby infringing to some degree the individual’s right against unreasonable searches.
The Sixth Amendment guarantees criminal defendants the right to assistance of counsel, which the Supreme Court has interpreted to mean effective assistance of counsel. Although sometimes seen derisively by the public as helping guilty defendants go free, defense attorneys play an important role in protecting civil liberties by holding prosecutors to their burden of proving guilt beyond a reasonable doubt. One of the key tools for a defense attorney is the attorney–client privilege, which facilitates the attorney’s ability to represent the client by ensuring the client that any statements made with the purpose of seeking legal advice are protected from disclosure. The client can feel more at ease in admitting past crimes if he or she knows that no court can force the lawyer to testify as to such admissions.
In 1996, the federal Bureau of Prisons issued a regulation (28 C.F.R. section 501.3) titled ‘‘Prevention of Acts of Violence and Terrorism’’ that had an indirect impact on the right to counsel. Under this regulation, the attorney general may direct a prison warden to implement ‘‘special administrative measures’’ that include potential monitoring of communications between the inmate and his or her attorneys. The monitoring is to be performed by government lawyers separate from the prosecution team so that the prosecutors will not have access to all communications between inmate and defense counsel, only (theoretically) those that involve potential future crimes or terrorism, which are not protected by the privilege.
Still, the prospect of having one’s communications with defense counsel monitored may have a chilling effect on those communications, leading inmates to censor themselves. In turn, that self-censorship may impair the quality of the legal advice the inmate receives.
A second way in which antiterrorism efforts can interfere with the right to counsel occurs when the government prosecutes a criminal defense attorney who represents terrorists on the theory that the attorney has conspired with his or her clients. In 2005, a jury convicted New York defense attorney Lynne Stewart of, among other things, helping her client, a convicted terrorist, communicate with his terrorist organization, the Islamic Jihad. Stewart may have merely been a zealous advocate for her client, or she may have crossed the line into criminal conduct by helping conceal the fact that he was passing instructions to his terrorist organization through Stewart’s translator; the jury believed the latter. Other defense attorneys representing suspected terrorists may tread more warily rather than risk prison time if they mistakenly cross the blurry line between zealous advocate and terrorism coconspirator. Yet, efforts by defense attorneys to make clear which side of the line they are on will likely impair the quality of the legal defense that they provide.
One of the principles of an open society is presumptively open access to court proceedings. As the Supreme Court explained in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), open trial proceedings assure the public that ‘‘proceedings [are] conducted fairly to all concerned.’’
After the 9/11 attacks, the federal government detained thousands of aliens, mostly from Middle Eastern nations, on suspected immigration violations. A few were charged with crimes unrelated to the 9/11 attacks or even terrorism generally. Many more were sent to deportation hearings. Shortly thereafter, the chief U.S. immigration judge issued a directive that closed deportation hearings in so-called ‘‘special interest’’ cases to the public and the press. Not only were visitors and family barred from the hearings, but the immigration judges also were forbidden even from ‘‘confirming or denying whether such a case is on the docket or scheduled for a hearing.’’
In North Jersey Media Group, Inc. v. Ashcroft (308 F.3d 198, 3d Cir. 2002), the third circuit decided that deportation hearings could be closed to the public because there was no clear history of public access to such proceedings, unlike criminal trials; soon after, in Detroit Free Press v. Ashcroft (303 F.3d 681, 6th Cir., 2002), the sixth circuit reached the opposite conclusion. As of 2005, the Supreme Court had not considered the constitutionality of the closure of the deportation hearings. It is worth noting, however, that the special Alien Terrorist Removal Court created by Congress in 1996 to handle the deportation of suspected alien terrorists (but that has not been used as of 2005) has hearings that are open to the public.
In any event, immigration courts may not have had a clear history of open public access, but federal courts do. Yet, in the 2003 case of M.K.B. v. Warden, a district court and then an appellate court handled the entire matter in secret. Had the clerk of the Eleventh Circuit Court of Appeal not made a clerical mistake that disclosed the existence of the case, the public would not have learned about it. Ultimately, the Supreme Court declined to hear the case, so all that can be said about this case is that four judges (the trial judge and three appellate judges) were comfortable with concealing the existence of the case from the public. As Judge Keith wrote in the Detroit Free Press case, ‘‘Democracies die behind closed doors.’’
Terrorism directed at a liberal democracy often uses the openness of society against itself; the temptation is to respond by reducing that openness so as to provide more security. Because the threat to national security, as exemplified by the megaterrorism of 9/11, can be palpable compared to the etherealness of ‘‘civil liberties,’’ we might expect the latter to lose out every time. The various issues discussed here do suggest that the government has attempted to make inroads on civil liberties in an effort to fight terrorism. At the same time, however, the record is not entirely one sided. Courts have narrowed the reach of the material support prohibition statutes, Congress added sunset provisions to parts of the USA PATRIOT Act (ensuring that those parts will need to be renewed), and the government has not engaged in wholesale detentions of Arab Americans the way that it interned Japanese Americans during World War II. TUNG YIN References and Further Reading Chang, Nancy. Silencing Political Dissent: How Post- September 11 Anti-Terrorism Measures Threaten Our Civil Liberties. New York: Seven Stories Press, 2002.
Chesney, Robert M., The Sleeper Scenario: Terrorism Support Laws and the Demands of Prevention, Harvard Journal on Legislation 42 (2005): 1–89.
Cases and Statutes Cited
See also Airport Searches; Equal Protection of Law (XIV); Freedom of Association; Japanese Internment Cases; National Security; 9/11 and the War on Terrorism; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Right to Counsel; Right to Counsel (VI); United States v. Brignoni–Ponce, 422 U.S. 873 (1975); United States v. United States District Court, 407 U.S. 297 (1972); Wiretapping Laws