Forum on National Security and the
Constitution
Committee of the Judiciary
House of Representatives
Statement of Kate Martin
Director, Center for National Security Studies
on
Civil
Liberties Since September 11, 2001
Thursday,
January 24, 2002
Thank you Mr. Conyers
and other Members of the Judiciary Committee for the opportunity to appear
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.
Thank you for holding this
important forum to examine one of the most serious issues facing our country
today, how to respond to the horrific attacks committed on September 11.
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 provide the necessary resources to prevent future
attacks and to conduct oversight of the government's actions to ensure that
they are both effective against the threat of terrorism and do not sacrifice
our basic freedoms
The government's efforts to
identify the perpetrators of the terrible attacks on September 11th and to
prevent future attacks before they occur could not be more crucial.
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
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.
We welcome the opportunity
to address the effectiveness of recent initiatives to protect us. We have
become increasingly concerned that instead of conducting a focused and
effective law enforcement investigation, the government has turned instead to a
number of radical and overly broad measures that threaten basic rights without
making us safer. We are most concerned that these measures target immigrants
and other foreigners in violation of our most fundamental values -- equal
treatment of all individuals before the law -- and our unique history as a
country of immigrants, knit together not by race, ethnicity, or religion but by
a commitment to the Constitution and the rule of law.
Today, I want to focus on
the excessive secrecy of recent actions, the Justice Department's detention of
more than 1100 individuals, its new order authorizing eavesdropping on
attorney-client communications and other actions that target the immigrant
community. As to each of these, we are shackled by the lack of serious and
detailed explanation by the government about how these particular restrictions
on our liberties will in fact contribute to our security. Without such
explanations, we have no guarantee that the steps being taken will in fact be
effective against terrorism.
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.
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.
The secrecy surrounding the
massive detentions of aliens since September 11 violates the government's
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," failed to provide any substantive response at all for more
than two months, and that response was woefully inadequate.
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.
Secret Detentions
Since September 11, more
than 1000 people have been detained as part of the investigation. The
government has made an extraordinary and unprecedented claim that it can jail
individuals in secret. And there is increasing reason to believe that there
have been extensive and fundamental violations of constitutional rights. There
is almost no evidence that this massive dragnet has been in any way effective
in identifying terrorists, to the contrary, it appears that in the end it will
be judged even from the law enforcement perspective a waste of scarce and
valuable resources.
In the first few days after
the attacks, some 75 individuals were picked up and detained. 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. Under pressure to
release information about the detentions, the Department stopped giving out even
the total number of detainees. But it is clear there have been hundreds more
arrests since early November. The Department now admits only that 460 people
are now in jail on immigration violations and 117 are being held on federal
criminal charges. An undisclosed number of others are being held on material
witness warrants or state and local charges. There is no information on how
many individuals have been released.
There is however, mounting
evidence that as to all but a tiny handful of the individuals who have been
jailed, the government does not have and never had any information linking them
to terrorist activity. Law enforcement officials on repeated occasions have
been careful to state that only a handful of individuals, maybe 10 or 20, have
in any way been tied to the hijackers from September 11th, Bin Laden or Al
Qaeda. Even as to that handful, only one has been indicted in connection with
the September 11 attacks. Hundreds of others are currently in jail. While the
department asserts that their rights are being respected and they have complied
with all applicable constitutional and legal limits, it has refused to release
that information which the public and the Congress need to determine if that is
in fact the case.
Indeed, 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. 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 Freedom of Information Act. Mr. Conyers and other Members of the
Congress also demanded a public accounting of the arrests. We received no
response and are now suing in federal district court in the
The Department continues to
stonewall. Justice Department officials stopped keeping a record of those
detained, presumably in order to avoid having to answer questions about who is
being counted in the tallies. The Justice Department did finally identify most,
although apparently not all of the approximately 100 individuals who have been
charged under federal criminal law. Presumably it did so because, being
pressed, it recognized that a basic tenet of our system is that the government
may not keep secret the identities of those whom it jails. But the Department
has repeatedly refused to disclose the names of the other 1000 people whom it
has detained. We do not even know how many people have been released or how
long they were held in jail.
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 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.
There is every reason to fear that the cloak of secrecy is shielding extensive
violations of the rights of completely innocent individuals. Numerous press
accounts raise critical questions about whether individuals' constitutional
rights have been seriously violated. It appears that tens, probably hundreds of
individuals, including
For example, a father and
son, both
There are many other
troubling examples. On Oct. 11, Tarek Abdelhamid Albasti was arrested at the
restaurant he owns in
Mr. Mohammad Mubeen, a
28-year-old Pakistani gas station attendant, was jailed because he got his
driver's license renewed in Florida shortly after terrorist plot leader Mohamed
Atta acquired a Florida driver's license at the same motor vehicles' branch.
(The Washington Post, November 4, 2001, "Deliberate Strategy of
Disruption; Massive, Secretive Detention Effort Aimed Mainly at Preventing More
Terror.")
Mr. Osama Elfar, 30, an
aviation mechanic, was jailed on Sept. 24. He was charged with overstaying his
visa, not usually a jailable offense. The real reason for his arrest, he
believes, is that he is Egyptian, Muslim, and employed at an airport -- with a
memorable first name. On October 5, he passed a polygraph test, but two weeks
later, a government lawyer blocked his release with an affidavit that the FBI
"has been unable to rule out the possibility that [Elfar] is somehow
linked to, or possesses knowledge of, the terrorist attacks on the World Trade
Center and the Pentagon." As of the beginning of November, Mr. Elfar was
still being held in the Mississippi County jail in southeast Missouri.
"This is what I do not understand," Mr. Elfar told the Washington
Post from jail, "When I took the test, the agent promised that if I was
clear, I would not be under arrest anymore." (The Washington Post, id.).
Mr. Ali al-Maqtari, 26,
told his story to the Senate Judiciary Committee on December 4. He was born in
Yemen, studied in France and came to the United States on a tourist visa with
hopes of becoming a French teacher. He met and married Tiffany Hughes, a native
of North Carolina and a convert to Islam in June of last year. On September
15th he drove his wife, a member of the National Guard, to Fort Campbell,
Kentucky to report for duty. At the gate, the two were ordered out of their car
and questioned while the car was searched. Mr. Maqtari was detained and jailed
for more than a month; his wife was harassed into leaving the Guard. Court
papers show that Mr. Maqtari was detained because authorities found two box
cutters in his car, along with postcards of New York City. He had used the box
cutters when working in his Uncle's supermarket. His lawyer, Michael J. Boyle
of New Haven, said a photo of Ms. Hughes had already been posted at the
guardhouse at Fort Campbell when they arrived because she had picked up her
military orders in Massachusetts on Sept. 13 wearing an Islamic head covering.
The Justice Department has
defended the detentions by arguing that all the individuals now in custody have
been charged, either with crimes or immigration violations. We do not yet have
enough information to know whether that is true. However, reports indicate
otherwise, and the government's own information shows that in many cases, days
and even weeks passed before an individual jailed by the INS was charged.
Unconstitutional Preventive
Detention.
Serious constitutional
questions exist about the government's practice of jailing individuals before
trial, when they have not been convicted of any crime nor shown to have
violated the immigration laws. There is extensive evidence that what has
happened is that the Justice Department has adopted an unconstitutional policy
of wholesale preventive detention. The Department appears to have made every
effort to deny individuals bail when they are arrested, not on the basis of the
constitutionally required standard that the particular individual poses a
threat of flight or violence if released pending trial, but on the unconstitutional
standard that individuals should be jailed until they are cleared of all
suspicion. This unconstitutional and shameful policy of preventive detention
appears aimed at Muslims, immigrants and other foreigners from the Middle East.
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
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.
In a handful of cases, the Department is using the authority of the material
witness statute to detain people. The circumstances of those detentions, now
shrouded in secrecy, nevertheless raise serious questions about the dangerous
ramifications of using the material witness statute not to secure testimony but
to authorize preventive detention. In response to our Freedom of Information
Act lawsuit, the government has refused to even identify how many individuals
are being held on such warrants or to identify which courts have entered
secrecy orders. Neither refusal is any way authorized by the rule requiring
grand jury secrecy.
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 months 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 guarantee that the truly dangerous ones
will be found. To the contrary, it diverts limited law enforcement resources from
the necessary, but much harder work of finding the guilty.
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."
There are serious questions whether since September 11 law enforcement
officials have consistently failed to notify foreign consulates when their
nationals are arrested in violation of US treaty obligations.
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. Before
September 11, in most cases 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. The
American people have a right to know whether these actions are no more than
attempts to intimidate individuals from the Middle East into leaving the
country. 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 scarce and valuable law enforcement resources otherwise
unavailable. Worst of all, it contradicts the basic principle of our society,
equal treatment before the law.
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.