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Civil Liberties and the War on Terrorism ? The Association?s Response

May 2004

The United States - actions in Afghanistan and Iraq, its handling of detainees, and the laws, regulations and policies advanced in the name of addressing terrorism have spurred complex legal issues and debate. Most of these issues have at their root the tension between providing protection from terrorism and upholding the basic rule of law. It is difficult for any one organization to keep up with the constant additions to the Administration?s anti-terrorism policies, but the Association has tried to stay focused on, and current with, these policies. A dozen Association committees have studied and reported on these issues. While ever mindful of, and not diminishing, the dangers posed by terrorism, the committees have urged that basic human and constitutional rights need not be jeopardized in order to provide adequate security. The reports and positions taken are listed below; the reports are available from the Executive Director?s office at the Association, and many are also on the Reports/Publications page of the Association?s website, I list our committees? work product in this area not only so members may access these reports but because the multitude of issues addressed by our reports should be understood and of concern to all. They literally speak volumes about the problems confronting the rule of law today.

Treatment of Immigrants

September, 2001 - Letter to the Immigration and Naturalization Service arguing that an interim rule extending the time in which the INS must make a determination in the event of an arrest without a warrant is unconstitutional and would undermine trust in law enforcement.

October, 2001 - Letter to Congress criticizing provisions in the Uniting and Strengthening America Act, then under consideration, to provide for indefinite detention without charge in certain circumstances and to limit judicial review of the government?s detention decisions.

June, 2002 - Letter to the INS urging rescission of the interim rule barring the release by any state or local government entity, or any privately operated facility, of the identity or other information relating to persons detained by the INS. The letter argues that the rule lacks both a constitutional and statutory basis, and was promulgated in violation of the federal Administrative Procedure Act.

August, 2002 and February, 2003 ? Co-sponsored resolutions adopted by the American Bar Association urging that due process protections be provided for immigration detainees, including access to lawyers and family members, and opposing the secret detention of foreign nationals after the September 11th attacks.

October, 2003 - Letter to Mayor Bloomberg urging him to oppose the enforcement of immigration laws by the New York Police Department. Such enforcement would strongly discourage the immigrant community from cooperating in basic law enforcement activities, including seeking the assistance of the NYPD as crime victims.

Military Commissions

December, 2001 - Report criticizing the presidential order establishing military commissions, arguing that the order did not provide for basic constitutional due process protections, did not guarantee habeas relief, and did not provide for judicial review of executive actions. In addition, the report cited concerns regarding use of this mechanism given the U.S. position over the years critical of tribunals in other nations which did not assure adequate protection to defendants. The report urged that consideration be given to handling these cases through other means, such as the federal courts, court-martials or international tribunals.

February, 2002 - Co-sponsored resolution adopted by the ABA urging that the Presidential order establishing military commissions or any similar military order should assure that the law and regulations governing the tribunal would (i) not be applicable to persons lawfully in the U.S., (ii) apply only to violations of the law of war, (iii) not permit indefinite pretrial detention, (iv) set forth extensive protections consistent with the Uniform Code of Military Justice and the International Covenant on Civil and Political Rights, and (v) provide for judicial review.

March, 2003 - Letter to the General Counsel of the Department of Defense commenting on a Military Commission Instruction, recommending that the offenses included within the ambit of the Military Commissions be narrowed.

April, 2003 - Letter to the Department of Defense noting that Guantanamo detainees have not been afforded the right to a formal determination of their status, if there is any doubt as to their status, as provided for under Army regulations.

August, 2003 - Co-sponsored resolution adopted by the ABA urging certain basic principles that would allow for effective advocacy by defense counsel in military commission trials. (The recommendations would require substantial changes in Defense Department rules regarding the role and function of defense counsel.)

Iraq/Afghanistan/International Relations

August, 2002 - Report regarding the legality and constitutionality of the President?s authority to initiate an invasion of Iraq, concluding that the Constitution requires the President to seek congressional authorization before launching a large-scale, offensive attack on Iraq.

October, 2002 - Letter to President Bush arguing that the United States should follow international law in its actions with regard to Iraq and noting that, in the absence of further facts justifying the use of force in self-defense under Article 51 of the U.N. Charter, the U.S. should obtain authorization from the Security Council prior to commencing military action against Iraq.

March, 2003 - Letter to President Bush expressing concern about the dire threat to the security of women and girls in Afghanistan, urging that he press Afghan leaders and the United Nations to stop the decrees, policies and actions which violate the human rights of Afghan women and girls.

April, 2004 - Report summarizing multilateral agreements that can be used to combat terrorism, including an analysis of their advantages and shortcomings, and how they have been used, particularly by the United States.

April, 2004 - Statement recommending procedures for trying Saddam Hussein and other leaders of the Hussein regime that follow universally accepted legal principles and international human rights standards.

Detainees and the Justice System

February, 2002 - Report urging that the trials of suspected terrorists be made accessible to the media and the public. The report argues that throughout U.S. history, opening war-related trials has had a salutary effect on justice whereas the closure of such trials has had the opposite impact.

March, 2002 - Statement protesting the federal rule that allows the Attorney General to authorize eavesdropping on attorney/client communications upon a finding of ?reasonable suspicion of terrorism.?

July, 2003 - Amicus brief in Padilla v. Rumsfeld (Second Circuit Court of Appeals), arguing Padilla, a U.S. citizen arrested in Chicago and detained as an ?enemy combatant? by the Administration, has a right to counsel and that the standard of review with regard to the enemy combatant designation should be ?clear and convincing evidence.?

January, 2004 - Amicus brief in challenge brought by Guantanamo detainees before the U.S. Supreme Court, arguing that the detainees have the right to invoke the jurisdiction of U.S. courts and that the Constitution entitles the detainees to due process.

February, 2004 - Report concluding that the assertion by the President of authority, under his war-making powers, to detain indefinitely, and without access to counsel, persons he designates as ?enemy combatants,? without congressional authorization and not subject to meaningful judicial review, violates core due process rights under the Constitution, and should be rejected by the courts. Due process is a flexible concept, but its parameters should be set by the Judiciary, not the Executive. The report also argues that the federal courts should be the preferred forum for the trial of cases involving enemy combatants.

April, 2004 - Report examining the international legal standards governing U.S. military and civilian authorities in their interrogations of detainees, making recommendations regarding laws and policies that should be followed in interrogations both in the Unites States and at overseas facilities.

As this article goes to press, we are preparing a brief before the Supreme Court in Padilla v. Rumsfeld, which will directly address the power of the President to indefinitely detain a U.S. citizen seized in this country upon designating the detainee as an enemy combatant. The Padilla case, along with the Guantanamo cases and the petition of another detainee, will give the Supreme Court the opportunity to speak definitively about the interplay between the President?s asserted authority in the ?war on terrorism,? fundamental due process rights, and the courts? role in adjudicating the dispute. Regardless of the outcome of these cases, Association committees will continue their efforts to advocate for reason and the rule of law.

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