Before the Judiciary Committee
of the United States Senate

on

DOJ Oversight:
Preserving our Freedoms while Defending against Terrorism

Wednesday, November 28, 2001

Thank you Mr. Chairman and Vice-Chairman for the opportunity to testify today on behalf of the Center for National Security Studies. The Center is a civil liberties organization, which for 30 years has worked to ensure that civil liberties and human rights are not eroded in the name of national security. The Center is guided by the conviction that our national security must and can be protected without undermining the fundamental rights of individuals guaranteed by the Bill of Rights. In our work on matters ranging from national security surveillance to intelligence oversight, we begin with the premise that both national security interests and civil liberties protections must be taken seriously and that by doing so, solutions to apparent conflicts can often be found without compromising either.

We commend the Committee for holding this series of oversight hearings to examine how the Justice Department can preserve our freedoms while defending against terrorism. After the scheduled examination of the Department's current initiatives and activities in investigating the September 11 attack, we urge the government to next examine how the Department of Justice intends to implement the new authorities granted in the USA PATRIOT Act.

Certainly, there is no greater government responsibility today than to work to prevent future terrorist attacks like those on September 11. The Attorney General and the FBI Director share the enormous responsibility of carrying out an effective investigation to prevent more attacks. Of equal importance is Congress' responsibility to conduct oversight of that investigation to protect our security and to protect the Constitution.

While some have cast the terrible situation we find ourselves in today as one in which we must decide what liberties we are willing to sacrifice for an increased measure of safety, I do not believe that is an accurate or helpful analysis. Before asking what trade-offs are constitutional, we must ask what gain in security is accomplished by restrictions on civil liberties. It is only by forcing the Justice Department to articulate why and how particular restrictions will contribute to security and that we can have assurance that the steps being taken will be effective against terrorism. This hearing today is the beginning of that essential inquiry.

Immediately following the September 11 attacks, we, along with more than 140 organizations from across the political spectrum called for the apprehension and punishment of the perpetrators of those horrors. At the same time, we all recognized that we can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty.

The government's efforts to identify any perpetrators and to prevent future attacks before they occur could not be more crucial. But we have become increasingly concerned that instead of a focused and effective law enforcement investigation, the government has turned to a number of radical and overly broad measures that threaten basic rights without providing any increased security. We understand that this Committee intends to examine all of them and we welcome your efforts. We will address each briefly in turn.

Lack of Congressional Authorization or Consultation
A common thread in the recent Justice Department actions is the secrecy and lack of congressional consultation with which they have been carried out. In detaining more than 1,000 individuals, in adopting a policy of eavesdropping on attorney-client communications, and in setting up a system of secret military trials and detentions, the administration has acted unilaterally without congressional participation or even consultation. By considering these actions in secret before adopting them, the administration prevented any public debate about their effectiveness. The lack of congressional notification is especially troubling in light of the administration's simultaneous request to the Congress to enact what was described as a comprehensive package of new authorities needed to combat terrorism passed as the USA PATRIOT Act. The administration's conduct calls into question its commitment to respecting the constitutional separation of powers and role of the Congress. Indeed, all of these actions would enhance the power of the Executive at the expense of the constitutional roles of both the Congress and the judiciary.

In the case of the new wiretapping policy and the military commission order, the lack of congressional authorization is fatal to the legality of those actions. Only the Congress, not the President, may legislate wiretapping standards or authorize military tribunals. The administration's edicts are invalid on that ground alone.

The lack of public discussion has now left us with restrictions on our liberties without any increase in our security. Only through an open and public dialogue involving the Congress, the Executive, and the American people can we find a solution that advances both national security and civil liberties. The unwillingness of the government to engage in a public or constitutional dialogue, not about the details of the investigations, but about the constitutional rules governing that investigation has prevented that process. This Committee must now remedy that problem.

The Dangers of Excessive Secrecy
In times of crisis, even more than in times of peace, a commitment to robust public debate is especially important. This is true for two reasons. First, the executive branch is more likely to take actions that violate basic civil liberties and thus an alert and informed public is necessary to counter-act that dangerous tendency. Second, the government is more likely to make effective decisions if there is an informed and influential public.

The government has the right, and indeed the obligation, to keep secret information whose disclosure would genuinely harm national security, interfere in an investigation, or invade the privacy of individuals. However, because public debate requires access to government information, the executive branch also has an obligation to release as much information as possible and to avoid taking actions that would chill essential public debate on national policy issues. Regrettably, the government has been seriously deficient on both accounts.

Almost as worrisome as the detentions of aliens since September 11 is the secrecy and veil of obfuscation that the government has thrown around its actions in blatant disregard of its affirmative obligations to provide information especially about actions in the criminal justice system, its obligation to inform Congress of its actions, and the requirements of the Freedom of Information Act (FOIA).

The Justice Department and the Attorney General have engaged in selective leaks of information about the detentions as part of their effort to calm the public and suggest that it is making progress in the investigation. At the same time, they have refused to provide the Congress and the public with the information to which they are entitled. Its response to FOIA requests about the detentions shows its cavalier disregard of the law. The FBI has responded that no information can be disclosed in response to the request despite the fact that much information has been in the press, clearly coming from the government. The Justice Department, after agreeing that the request deserved an expedited response because it involved a "matter of widespread and exceptional media interest in which there exists possible questions about the government's integrity which affects pubic confidence," has failed to provide a substantive response.

More broadly, the Attorney General has sent the entire bureaucracy a clear signal by reversing the directive regarding discretionary release of information under FOIA as established by his predecessor. Instead of requiring that information be released except when its disclosure would result in some harm, Ashcroft has directed that information be withheld whenever possible under the statute, regardless of whether disclosure would be harmful or violate the public's right to know.
Although the directive cites the September 11 attacks as justification, it covers all government information, much of which has no national security or law enforcement connection whatsoever. It is clearly intended to send the message to the bureaucracy that instead of working with the public to share information that is rightfully theirs, the government should take advantage of the ambiguities in the law to deny information. The result will surely be a less open and less accountable government.

Congress and the courts are our only recourse. We expect to file suit for the material we requested under FOIA as soon as possible. We will be making other FOIA requests and will file other lawsuits. We are also exploring other statutory as well as constitutional bases for legal action to compel the release of documents. However, we need the Congress. We urge this committee to hold the Justice Department to account by demanding information and holding hearings. We urge you to make public as much of the information that you believe is in the national interest, even if it means acting over the objections of the Justice Department.

Secret Detentions
In the first few days after the attacks, some 75 individuals were picked up and detained. While the administration sought increased authority from the Congress to detain foreign individuals on the grounds of national security with no judicial oversight, it picked up hundreds more individuals. The Attorney General announced that 480 individuals had been detained as of September 28; 10 days later another 135 had been picked up; and in one single week during October, some 150 individuals were arrested. As of November 5, the Justice Department announced that 1,147 people had been detained.

While trumpeting the numbers of arrests in an apparent effort to reassure the public, the Department has refused to provide the most basic information about who has been arrested and on what basis. We know that the detainees include citizens, legal residents, and, according to INS director James Zigler, 185 individuals were being held on immigration violations. According to the Attorney General and FBI Director, the remaining group includes a small number of individuals held on material witness warrants and others held on violations of local, state, or federal laws. Apparently none have been charged as terrorists, indeed only 10 or 15 are even suspected of being terrorists. At this time, we do not have any idea how many have been released.

As the number of secret detentions increased, press reports began to appear, which if accurate, raise serious questions as to whether the rights of the detainees are being violated. As each successive week has brought hundreds more arrests, demands for release of basic information have intensified. The unprecedented level of secrecy surrounding the extraordinary detention of hundreds of individuals, prompted us, along with nearly 40 other civil liberties, human rights, legal, and public access organizations to demand release of the detainees' names and the charges against them under the FOIA request. The Chair and other members of this Committee and of the Congress have also demanded a public accounting of the arrests.

In response, the Department has only stonewalled. Justice Department officials have refused to release further information on the detentions, and have stopped keeping a record of those detained, presumably in order to avoid having to answer questions about who is being counted in the tallies.

Public disclosure of the names of those arrested and the charges against them is essential to assure that individual rights are respected and to provide public oversight of the conduct and effectiveness of this crucial investigation. Public scrutiny of the criminal justice system is key to ensuring its lawful and effective operation. Democracies governed by the rule of law are distinguished from authoritarian societies because in a democracy the public is aware of those who have been arrested. Individuals may not be swept off the street and their whereabouts kept secret.

The government has made varying claims to justify this secrecy. Ironically, it now claims that it is withholding the names of detained individuals in order to protect their privacy. What is needed to ensure the protection of the rights of these individuals, who have been jailed by the government now worrying about their privacy is what we have always relied upon in protecting against government abuses, namely public sunshine.

Likewise, the Department's claim that releasing the names and charges could harm the investigation is contradicted by its own disclosures. Not only have officials already identified several suspected terrorists, but they have also outlined evidence against them. The Attorney General himself described the evidence against the three individuals whom he believes had prior knowledge of the September 11 attacks. Finally, the Department has made the astonishing claim that because it asked courts to seal some of the proceedings, it is now helpless to disclose even the identities of the courts or the authorities under which those gag orders were sought.

While we are not seeking the details of the investigation or an outline of the evidence being collected by the FBI, we do urge this Committee to secure the release of information crucial to public accountability: the names and charges against those who have been detained.

There is every reason to fear that the cloak of secrecy is shielding extensive violations of the rights of completely innocent individuals. These violations include imprisonment without probable cause, denial of the constitutional right to bail, interference with the right to counsel, and abusive conditions in detention. We will only outline a few examples, but there are many more.

a. Imprisonment without Probable Cause.
While the government has admitted that it has evidence of terrorism against only a small fraction of the detainees, it has imprisoned hundreds of individuals against whom there is no evidence of criminal activity. For example, a father and son, both US citizens, were arrested as they returned from a business trip in Mexico because their passports looked suspicious. The father was released after ten days and sent home wearing a leg monitor, but the son spent two more months in jail until a federal judge determined that the plastic covering had split. The key factor in their arrest appears to be their Arabic sounding names. While the Attorney General has announced that terrorists will be arrested for spitting on the sidewalk, he has yet to explain why innocent Americans will be jailed for doing so.

In a handful of cases, the Department is using the authority of the material witness statute to detain people. We urge this Committee to examine carefully the circumstances of those detentions, which are now all shrouded in secrecy, and to consider the dangerous ramifications of using the material witness statute not to secure testimony but to authorize preventive detention.
There is growing evidence that the FBI has abandoned any effort to comply with the constitutional requirement that an individual may only be arrested when there is probable cause to believe he is engaged in criminal activity. The FBI is now seeking to jail suspicious individuals until the agency decides to clear them. The FBI is providing a form affidavit, which relies primarily on a recitation of the terrible facts of September 11, instead of containing any facts about the particular individual evidencing some connection to terrorism, much less constituting probable cause. The affidavit simply recites that the FBI wishes to make further inquiries. In the meantime, the individual is held in jail.

b. Denial of the Constitutional Right to Bail.
The right to be free on bail until trial is a vital part of the constitutional presumption of innocent until proven guilty. While individuals can be denied bail when there is a substantial risk that they would flee or commit acts of violence if released, this constitutional standard currently seems to have been abandoned. Instead of considering whether a particular individual is likely to flee, the Department is attempting to detain all individuals picked up as part of the September 11 investigation. If the past few weeks are an example of what the future holds, it is likely that individuals charged with "spitting on the sidewalk" may serve more time in jail pre-trial than they would if they were found guilty.

All these circumstances raise serious questions about the effectiveness of the current effort. Is the FBI carrying out a focused investigation executing the work necessary to identify and detain actual terrorists, or is this simply a dragnet, which will only be successful by chance. The fact that 1,000, or even 5,000, individuals are arrested is no assurance that the truly dangerous ones are among them.

c. Violation of the Right to Consular Notification.
Mohammed Rafiq Butt, a Pakistani citizen who was detained for entering the country illegally, died in custody of an apparent heart attack on October 23. Pakistani diplomats only learned of Mr. Butt's arrest when journalists called the Embassy to ask for a comment on his death. Clyde Howard, director of the State Department's Consular Notification and Outreach Unit, said, "We are concerned about these failures of notification when they happen to us overseas, so it becomes more difficult for us to assert our rights under the Vienna Convention if we are not doing a good job in giving the same notification here."

We urge this Committee to examine whether since September 11, law enforcement officials have consistently failed to notify foreign governments when their nationals are arrested. US treaty obligations require foreign consulates to be so notified.

d. Violation of the Right to Counsel and the Fourth Amendment.
Even before the Justice Department announced its new policy of eavesdropping on conversations between detainees and their attorneys, there were numerous reports of interference with the right to counsel. Many immigration detainees were prevented from finding counsel. The administration's "one call a week" policy made it difficult for detainees to communicate with their families, find lawyers, or even know if they had successfully secured representation. There is reason to fear that detainees' lawyers have been muzzled by gag orders, or simply intimidated into silence with threats of actions organized against their clients.

Under the Justice Department's recently announced policy, solely on the Attorney General's say-so, the Department can eavesdrop on the privileged attorney-client conversations of persons who have not even been charged. Such individuals can be held incommunicado, with their activities severely restricted. While others have outlined the clear unconstitutionality of this policy, I want to emphasize the equally unlawful way in which it was adopted.

Only weeks before the unilateral announcement of this new policy, the Attorney General had come to the Congress seeking a comprehensive package of new powers the administration believed were necessary to fight terrorism. At no time did the government suggest that any amendment was needed to the wiretap statutes authorizing surveillance of such privileged conversations. Had it done so, there could have been a public debate about whether current law was inadequate in some way. Instead, the Attorney General has simply declared that the government will suspend the Fourth Amendment requirements of probable cause and judicial warrant for wiretapping and substitute his say-so. Such an approach shows a lack of respect for both the Bill of Rights and our system of divided government.

I also want to comment on the administration's claim that the eavesdropping is acceptable under the Constitution because the FBI agents who eavesdrop on privileged conversations will not be involved in criminal prosecution of the individual. It appears highly doubtful that this will be the reality, given the FBI's description of its investigation as a mosaic in which each small piece of information can only be understood when contextualized. Even more significantly, it is clear that such information could be used against the individual in any detention or military commission proceeding authorized by President Bush's most recent order.

Intimidation of Immigrants
Many of the recent actions appear to be aimed not so much at gathering information about Al Qaeda and its members, but at simply intimidating those who have come to visit, do business, or work and become Americans. There are myriad reports of individuals who have been jailed for weeks because they have overstayed their visas. Usually they would have been granted some kind of adjustment allowing them to leave the country voluntarily or stay and become law-abiding and productive members of our society, but not since the recent terrorist attacks. The plan to question 5,000 individuals without knowing anything about any specific individual indicating that he or she might have useful information will certainly intimidate many into leaving the country. This plan will take enormous law enforcement resources and will generate many reams of memos; but whether it will produce any useful information is open to question. It is urgent that this Committee immediately examine whether these actions are no more than attempts to intimidate individuals from the Middle East into leaving the country. If so, such a policy needs to publicly defended and debated. It is not clear what law enforcement or national security purpose is served by such a tactic, which presumably will not work on those who have actually entered the country ready to die in the order to kill Americans. It does, however, erode the trust and confidence of minority and immigrant communities and make law enforcement resources otherwise unavailable.

The Order Authorizing Military Commissions and Preventive Detention Violates Separation of Powers and The Bill of Rights
The constitutional defects of the recent Order authorizing secret military trials and military detentions are outlined elsewhere. Here, I only offer a few observations.
-- Individuals currently in detention may be threatened with secret transfers to military custody.

The broad scope of the order would authorize the President to direct that individuals currently held, even if not criminally charged, be immediately transferred to secret military custody, even overseas. It seems clear that the intent of the order is to authorize such transfers in secret and to impose both legal and practical obstacles to individuals obtaining any judicial review of such transfers.

-- The authorization of military detention of aliens inside the United States on the say-so of the President is an unconstitutional end-run around the provisions of the USA PATRIOT Act.

In addition to military commissions for individuals captured overseas, the order authorizes detention of aliens inside the United States believed by the President to be involved in terrorism. This part of the Order is a deliberate end-run around the provisions of the USA PATRIOT Act concerning such detentions, which limits the conditions and time under which individuals may be detained. The President's Order attempts to authorize what the Congress rejected in the first administration draft of the anti-terrorism bill. It is a deliberate end-run around the limits and restrictions agreed to by the administration in negotiating the detention provisions of the PATRIOT Act.

-- The military commission order violates separation of powers.

The administration's unilateral issuance of this Order without even discussing it with the Congress is the most blatant example of its disregard for the explicit text of the Constitution. The Constitution gives to the Congress explicit authority over military tribunals.
Article I specifically vests in the Congress: the power to create judicial tribunals "inferior to the Supreme Court;" "To define and punish… Offenses against the Law of Nations; to make Rules concerning Captures on Land and Water; and "To make Rules for the Government and Regulation of the land and naval Forces." Article I, sec. 8.

When the Supreme Court approved the use of military commissions in World War II, Congress had specifically authorized their use in the Articles of War adopted to prosecute the war against Germany and Japan.
Accordingly, this Order violates separation of powers as the creation of military commissions has not been authorized by the Congress and is outside the President's constitutional powers.

-- Individuals accused of war crimes are entitled to fundamental due process protections even if tried by military courts.

Since the Supreme Court approved the use of military commissions to try offenses against the laws of war in World War II, the law of war and armed conflict has come to include the requirements that even those characterized as unlawful combatants accused of war crimes must be accorded fundamental due process. Thus, any constitutionally authorized military commissions would be bound by the current legal obligations assumed by the United States. These would include the United Nations charter and the International Covenant of Civil and Political Rights, none of which were in existence at the time the Supreme Court approved the use of military commissions during World War II.

We urge the Congress to make clear that such order is not authorized and thus unconstitutional. If military trials are deemed necessary for individuals captured in Afghanistan or fleeing therefrom, the Congress should authorize their use consistent with the requirements of due process enshrined in the Constitution and the international covenants agreed to by the United States.
In the meantime, we appeal to the Committee to require the Attorney General to immediately notify the Committee of any plans to apply the order to any individuals now detained in the United States and to inform you of the identities of such individuals and the basis for applying the order before doing so.

We urge the Congress to insure that those accused of even the most terrible crimes against humanity be accorded fundamental due process because our commitment to accord everyone the protection of the rule of law is what in the end distinguishes us from the terrorist who simply kill in the name of some greater good.

Conclusion
In the darkest days of the Cold War we found ways to reconcile both the requirements for security and those of accountability and due process, by taking seriously both interests. No less is required if in the long run, we expect to be successful in the fight against terrorists, who care nothing for either human liberty or individual rights.

We need to look seriously at how security interests can be served while respecting civil liberties and human rights. It is time to give serious consideration to whether promoting democracy, justice, and human rights will, in the long run, prove to be a powerful weapon against terrorism along with law enforcement and military strength. Current administration policies assign no weight to respecting civil liberties as useful in the fight against terrorism. Only when that is done, will we truly be effective in what has been acknowledged to be a long and difficult struggle.