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Planet Debate September PF Release (volume 2) – Security & Liberty
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*** FYI *** ..................................................................................................................................... 3
FYI: FISA/”Significant Purpose” .................................................................................................... 4
FYI: Definition of a Fourth Amendment “Search” ........................................................................ 7
FYI: Supreme Court Detention Decisions ....................................................................................... 9
Quotables ....................................................................................................................................... 10
*** Pro *** .................................................................................................................................... 11
Civil Liberties Infringements Justified .......................................................................................... 12
Civil Liberties Infringements Justified .......................................................................................... 13
Civil Liberties Infringements Justified .......................................................................................... 14
Civil Liberties Infringements Justified .......................................................................................... 15
Civil Liberties Infringements Justified .......................................................................................... 16
Civil Liberties Infringements Justified .......................................................................................... 17
Civilian Trials for Terrorists Risk Terrorism ................................................................................ 18
Miranda Warnings For Terrorists Risk Terrorism ......................................................................... 19
Eliminating Detention Without Charge Risks Terrorism .............................................................. 20
Preventive Detention is Critical to Fight Terrorism ...................................................................... 21
Stings/Entrapment Critical to Fight Terrorism .............................................................................. 22
Information Gathering/Surveillance Critical to Fight Terrorism .................................................. 23
Military Commissions Good ......................................................................................................... 24
Military Commissions Good ......................................................................................................... 25
Military Commissions Good ......................................................................................................... 26
No Water-Boarding Now............................................................................................................... 27
No Torture Now............................................................................................................................. 28
Indefinite Detention Doesn’t Violate International Law ............................................................... 29
General International Law Answers .............................................................................................. 30
General International Law Answers .............................................................................................. 31
No Human Rights Violations at Guantanamo ............................................................................... 32
Indefinite Detention Legal ............................................................................................................. 33
Terror Risk High Now ................................................................................................................... 36
Guantanamo Bay Doesn’t Increase Terror Recruiting .................................................................. 37
Military Action Needed to Fight Terror ........................................................................................ 38
*** Con ***................................................................................................................................... 39
Security Crisis Doesn’t Justify Civil Liberties Violations ............................................................ 40
Security Crisis Doesn’t Justify Civil Liberties Violations ............................................................ 41
Fear Leads to the Loss of Civil Liberties ...................................................................................... 42
Guantanamo Bay Detainees Can’t Get Criminal Trials ................................................................ 43
Obama’s Executive Order Doesn’t Resolve Guantanamo Bay ..................................................... 44
Obama’s Exeuctive Order Doesn’t Resolve Guantanamo Bay ..................................................... 45
Obama Has Continued Bush’s Policies ......................................................................................... 46
Indefinite Detention Now .............................................................................................................. 48
Detention Without Charge Now .................................................................................................... 49
25,000 Detained Globally .............................................................................................................. 50
Military Commissions Now........................................................................................................... 51
Guantanamo Could Be Shut-Down ............................................................................................... 52
Due Process Protections Critical for Anti-Terror Cooperation ..................................................... 53
Strong Police-Community Relations Needed to Fight Terrorism ................................................. 54
PATRIOT Act Threatens Civil Liberties....................................................................................... 55
Race-Based Detention Now........................................................................................................... 56
Border Control Threatens Civil Liberties ...................................................................................... 57
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Immigration Restrictions Threaten Civil Liberties ........................................................................ 58
Alien Removal Now ...................................................................................................................... 59
Alien Removal Now ...................................................................................................................... 60
Racial Profiling Used in Immigration Enforcement ...................................................................... 61
Warrantless Searches of Aliens ..................................................................................................... 62
Few Procedural Detention Protections for Immigrants ................................................................. 63
Immigrants Profiled Based on Race .............................................................................................. 64
Alien Removal Does Not Improve Security .................................................................................. 65
Anti-Immigrant Measures Do Not Improve Security .................................................................... 66
Criminal Investigations for Terrorists Best ................................................................................... 67
Electronic Surveillance Widespread .............................................................................................. 68
Privacy Expectation in Cell Phone Data........................................................................................ 69
Privacy Expectation in Cell Phone Data........................................................................................ 70
Cell Phone Data Acquisition Threatens Civil Liberties ................................................................ 71
War on Terror Undermines US Global Credibility ....................................................................... 73
War on Terror Undermines US Global Credibility ....................................................................... 74
War on Terror Undermines US Global Credibility ....................................................................... 75
Procedural Fairness Critical to Global Legitimacy ....................................................................... 76
Perceptions of Injustice Increase Terrorism .................................................................................. 77
US Detention Policies Increase Terrorism .................................................................................... 78
US Detention Policies Perceived as Racist.................................................................................... 79
Guantanamo Bay Undermines US Global Legitimacy.................................................................. 80
Procedural Justice Protections Critical to Global US Legitimacy ................................................. 81
Proecural Justice Protections Critical in Detention ....................................................................... 82
Ways to Improve Procedural Justice in Detention ........................................................................ 83
Procedural Transparency Critical to Reverse Perceptions of Racial Bias ..................................... 86
Procedural Justice Critical to Conviction Accuracy ...................................................................... 87
Procedural Fairness Critical to Correctability ............................................................................... 88
War on Terror Violates Civil Rights of Muslim Students ............................................................. 89
PATRIOT Act Threatens Civil Rights of Muslim Students .......................................................... 90
FISA Surveillances threatens Muslim Students ............................................................................ 91
PATRIOT Act Visa Requirements Threaten Muslim Students..................................................... 92
SEVIS System Threatens Civil Rights of Muslim Students ......................................................... 94
National Security Letters threaten Muslim Students ..................................................................... 97
FERPA Amendments Threaten Muslim Students ....................................................................... 100
PATRIOT Act Threatens Academic Freedom ............................................................................ 101
Academic Freedom is a Civil Right ............................................................................................ 102
Academic Freedom Critical to Academic Advancement ............................................................ 104
PATRIOT Act Threatens Civil Liberties..................................................................................... 105
Government Uses States Secrets Privelege ................................................................................. 106
Freedom of Speech Good ............................................................................................................ 107
Individuality Impacts ................................................................................................................... 108
Executive Orders Fail .................................................................................................................. 109
Executive Orders Fail .................................................................................................................. 110
Executive Orders Fail .................................................................................................................. 111
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*** FYI ***
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FYI: FISA/”Significant Purpose”
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FISA and “significant purpose” explained
John Scott, JD, Spring 2011, Journal of Criminal Law & Criminology, "CONFRONTING"
FOREIGN INTELLIGENCE: CRAWFORD ROADBLOCKS TO DOMESTIC TERRORISM
TRIALS, p. 1048-51
In October 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA). Under
FISA, the government is permitted to conduct surveillance and searches in pursuit of foreign
intelligence material without showing the normal probable cause to believe a crime had
committed. FISA was designed to fill the legal gaps left by Title III of the Omnibus Crime
Control and Safe Streets Act of 1968. Both the Court and Congress had recognized the Executive
Branch's need to collect certain information in order to satisfy its constitutional duties.
Additionally, in certain contexts this power could be exercised without invoking the Warrant
Clause of the Fourth Amendment. Nevertheless, during the 1960s and 1970s, past abuses of
executive power, specifically with regards to wiretapping and information gathering, prompted a
reevaluation of permissible government surveillance activities. FISA therefore set out the
standards for collecting foreign intelligence both with and without a warrant.
FISA covers both electronic surveillance and physical searches. Foreign intelligence information
is that information which is:
(1) Information that relates to, and if concerning a United States person is necessary to, the ability
of the United States to protect against (A) actual or potential attack or other grave hostile acts of
a foreign power or an agent of a foreign power; (B) sabotage, international terrorism, or the
international proliferation of weapons of mass destruction by a foreign power or an agent of a
foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a
foreign power or by an agent of a foreign power; or (2) information with respect to a foreign
power or foreign territory that relates to, and if concerning a United States person is necessary to
(A) the national defense or the security of the United States; or (B) the conduct of the foreign
affairs of the United States.
In order to conduct surveillance the Attorney General may apply to the Foreign Intelligence
Surveillance Court (FISC) for a warrant. The court will grant an application if it finds there is
probable cause to believe that the target is an agent of a foreign power and that a foreign power
(or agent of a foreign power) controls the location at which the surveillance is to be conducted.
The requirements for granting a FISA warrant are similar to but less rigorous than the standards
under Title III. Whereas under Title III an applicant must show probable cause to believe that the
surveillance will turn up evidence of a crime, under FISA the Government must only demonstrate
probable cause that the subject of the surveillance is a foreign power or agent.
In addition to information about the subject of the surveillance, the Government is required to
show how they will comply with minimization procedures in order to prevent the gathering,
retention, or dissemination of nonpublic information. Determination of these minimization
standards is left to the discretion of the Attorney General.
As originally articulated in the statute, the "purpose" of a FISA investigation had to be the
collection of foreign intelligence. If evidence of criminal wrongdoing was discovered, however,
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this could still be introduced at trial so long as the requirements of the FISA statute relating to the
identity of the target and the minimization procedures were met.
Therefore, the scope of "purpose" was and still is significant. The exact meaning of the term,
however, evolved from the 1980s through the early 2000s. Prior to the passage of FISA, the
Fourth Circuit had analyzed the issue of the use of foreign intelligence information in court and
articulated a standard. That court held in United States v. Troung Dinh Hung that the
exclusionary rule does not apply where the primary purpose of an investigation is foreign
intelligence gathering, and so information collected is admissible at a subsequent trial. The court
dismissed the plaintiff's argument that a sole purpose test should be adopted, as "almost all
foreign intelligence investigations are in part criminal investigations." Adopting a sole purpose
test would require the government to seek judicial warrants whenever it undertook foreign
intelligence surveillance. This fails to acknowledge the government's legitimate interest in
conducting this type of surveillance.
After FISA, other federal courts applied the holding in Truong to the new statute, and determined
that the primary purpose of the investigation needed to be intelligence gathering. In denying a
defendant's motion to suppress evidence collected through a FISA warrant, the District Court for
the Eastern District of New York cited Truong and stated "surveillance under FISA is appropriate
only if foreign intelligence surveillance is the Government's primary purpose." In addition to the
Second and Fourth Circuits, other courts from around the country weighed in on this issue and
determined that, pursuant to Truong, "purpose" as articulated in FISA should be interpreted to
mean "primary purpose."
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While not addressed by the Supreme Court, this standard was adopted by the Justice Department
(DOJ). Under its FISA mandate to "minimize" misuse of information, DOJ regulated contact
between its Criminal Division and the FBI to ensure that the "primary purpose" of its FISA
warrants was not compromised. The official line, articulated in the 1995 Protocols, was that when
facts collected under FISA "reasonably indicate that a significant federal crime has been, is
being, or will be committed," the Office of Intelligence Policy and Review (OIPR), in
conjunction with the FBI, can notify the Criminal Division. Otherwise operations are kept
separate. In practice, these protocols built a "wall" between the various departments as the
specific requirements attached to information transfer became so complex that sharing during the
late 1990s simply was not done.
The guidelines adopted in 1995 assured that "FISA information could almost never be shared
with criminal investigators." Adopting the primary purpose standard encouraged thinking
critically about the involvement of criminal investigators in FISA investigations, but erecting a
wall was, in hindsight, an overreaction. The consequence of this overreaction became clear in
September 2001.
Following the September 11 attacks, the government tried to determine what failures or
oversights prevented the plot from being uncovered and the perpetrators stopped. Soon it became
clear that restrictions on information sharing imposed within the DOJ had seriously hindered the
ability of the government to track and respond to the threat. In October 2001, Congress passed
the United and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (PATRIOT Act). This collection of legislation covered a wide
array of areas: it increased the emergency surveillance period from twenty-four to seventy-two
hours, expanded the use of electronic and physical searches, and extended surveillance periods
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from 90 to 120 days.
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Arguably the most significant change brought about by the PATRIOT Act, however, was the
addition of a single word to 50 U.S.C. § 1804. This statute governed applications for warrants
from the FISC. The PATRIOT Act added the word "significant" immediately before the word
"purpose." In doing so, Congress effectively knocked out the foundation of the wall that had been
built within the DOJ. The courts could now issue FISA warrants in investigations where the
primary purpose was not foreign intelligence gathering. Requiring only that intelligence
gathering be a "significant purpose" implies that agents can use FISA's secret and more
permissive procedures when their primary purpose was to gather evidence for criminal
prosecution.
By early 2002, Attorney General John Ashcroft had revoked Reno's 1995 procedures and
instituted a new set of minimization procedures. According to Ashcroft, "the USA Patriot Act
allows FISA to be used for "a significant purpose,' rather than the primary purpose, of obtaining
foreign intelligence information." Thus, it allows FISA to be used primarily for a law
enforcement purpose, as long as a significant foreign intelligence purpose remains. These 2002
Protocols stated that "the Criminal Division and OIPR shall have access to all information
developed in full field [Foreign Intelligence (FI)] and [Foreign Counterintelligence (FCI)]
investigations." In general "the FBI, the Criminal Division, and OIPR shall consult with one
another concerning full field FI and FCI investigations" and "the FBI, the Criminal Division, and
OIPR shall meet regularly to conduct consultations." Criminal prosecution and foreign
intelligence gathering were melded under the amended FISA, which allowed prosecutors to take
advantage of the more deferential warrant standards when conducting investigations.
The FISA Review Court upheld Ashcroft's protocols and the significant purpose standard later
that year. That court held that the significant purpose test satisfies the requirements of the Fourth
Amendment. In its decision, the court specifically stated that under this new standard, the
primary purpose of the relevant investigation could be criminal prosecution
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FYI: Definition of a Fourth Amendment “Search”
A “search” occurs when a reasonable expectation of privacy is violated
Susan Freiwald, law professor, San Francisco, Maryland Law Review, 2011, CELL PHONE
LOCATION DATA AND THE FOURTH AMENDMENT: A QUESTION OF LAW, NOT
FACT, p. 743
When the "government violates a subjective expectation of privacy that society recognizes
as reasonable," it conducts a Fourth Amendment search. The Supreme Court has used that
formulation repeatedly since Justice Harlan first used it in his concurring opinion in Katz v.
United States in 1967. In Katz, the Supreme Court found for the first time that the Fourth
Amendment protects telephone calls from warrantless government acquisition.
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FYI: Supreme Court Detention Decisions
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Supreme Court detention decisions
Peter Shane, Chair in Law, Ohio State, New York Law School Law Review, 2011/12, “The
Obama Administartion and the Prospects for a Democratic Presidency in a Post-9/11 World,” pp.
32
The Supreme Court explicitly rebuffed the first three of these positions in a series of three cases:
Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush. In Rasul the Court held that
the general federal habeas corpus statute applied to Guantanamo detainees. Thus, the
petitioners, two Australian and twelve Kuwaiti citizens who were captured in Afghanistan,
could all challenge their detention under that statute. Hamdan, a suit brought pursuant to the
federal habeas statute, challenged the permissibility of trying Guantanamo detainees before
military commissions. Hamdan was a Yemeni national accused of working as Osama bin Laden's
bodyguard and personal driver. The Court held that the Geneva Conventions apply to
detainees in Hamdan's position; that he could enforce their protections through judicial
suit; and that Guantanamo military commissions as then constituted fell short of standards
imposed by the Geneva Conventions, as implemented by federal statutes. The Court further
held that military commissions could try defendants only for "war crimes" and that the
conspiracy charge lodged against Hamdan was not a war crime as defined either by federal or
customary international law. Boumediene, the Supreme Court's most recent Guantanamo
decision, returned to the adjudication of enemy combatant status. Congress had reacted to
Hamdan by enacting the Military Commissions Act of 2006 (MCA). The MCA provided a
relatively circumscribed process for reviewing administrative determinations that a
Guantanamo detainee was, in fact, an enemy combatant. The MCA otherwise eliminated
habeas access for non-citizens subject to its provisions. Boumediene held the MCA's bar to
habeas unconstitutional. The majority concluded that, unless enemy combatants have
access to habeas review of their detention, the determination of enemy combatant status,
through a combination of administrative adjudication and judicial oversight, has to provide
a fully equivalent substitute to habeas in terms of assuring a sound factual basis for the
detention. The MCA scheme fell short.
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Quotables
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After each perceived security crisis ended, the United States has remorsefully realized that the
abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from
repeating the error when the next crisis comes along.
- Justice William J. Brennan
Those who would give up essential liberty to purchase a little temporary safety deserve neither
liberty nor safety.
- Benjamin Franklin
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*** Pro ***
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Civil Liberties Infringements Justified
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Constitution requires the President to preserve security even if rights are violated
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 79-80
Initially, it is impossible to say with any certainty whether or not Presidents like Abraham
Lincoln and Franklin Roosevelt had to infringe constitutional liberties the way they did in
order to win their wars. Perhaps they could have achieved the same results with fewer
intrusions. But maybe greater solicitude for personal freedoms would have led to defeat, or
to a victory that exacted a far greater cost in blood and money. Speculating about such
matters is an academic exercise. All we know for sure is that these Presidents took the
actions they deemed necessary prevail, and they did. For better or worse, the Constitution
commits to the President almost unbridled discretion to determine what must be done to
meet a military emergency. These decisions must be made quickly and with imperfect
information, and they are then judged by Congress, voters, and posterity
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Civil liberties violations necessary to prevent terror attacks
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 80
[Incorporating the lessons of history] has several implications for the War on Terrorism.
Most importantly, although President Bush asserted aggressive unilateral executive powers,
his response to al Qaeda's September 11, 2001 attacks was fairly mild in comparison with
the actions of Lincoln, Roosevelt, and other Presidents. Furthermore, like his predecessors,
Bush can defend his infringements on civil liberties as necessary to achieve his avowed
objective: preventing another terrorist assault. In the past, such success has usually been
sufficient for a President to deflect charges that he went overboard. Indeed, the majority of
Americans have always solidly supported antiterrorism efforts. Although the legal and
media intelligentsia have been outraged by conditions at Guantanamo Bay, average people
do not appear to feel widespread regret that will result in a compensatory increase in civil
rights.
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Civil Liberties Infringements Justified
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The President and Congress have discretion to respond to military emergencies
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 81
A study of the Constitution as written and as actually implemented in wars reveals that the
political branches have enormous leeway in exercising military powers to respond to the
unique conditions of each armed conflict. Given the complexities of decision-making
during a military crisis, it is usually quite difficult to conclude definitively that Congress or
the President abused their discretion.
President has unilateral authority to address security emergencies
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 82
Specifically, Article I authorizes Congress to provide for the national defense; declare war
or otherwise approve it; create, finance, and regulate the armed forces; and suspend the
privilege of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public
Safety may require it." Article II confers on the President federal "executive power" and
enables him to direct the army and navy as "Commander in Chief." Furthermore, the
structure of Article II suggests that the President can unilaterally address emergencies
because only he, as the sole repository of all executive power and the lone federal official
always on duty, can act swiftly and resolutely based on the recommendations of experts
who have access to secret military intelligence. By contrast, the other two departments
labor in fixed sessions: Congress legislates through a time-consuming process of debate
and compromise, while federal courts render judgments only after parties have properly
invoked their jurisdiction and lengthy litigation has been completed.
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Civil liberties yield to the national imperative of winning wars
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 83
In implementing the Constitution, all three branches have determined that sometimes
individual rights and liberties must yield to the national imperative of winning a war. The
primary actor has been the President, who has had to make swift decisions based on a
constantly shifting military situation and imperfect intelligence. As long as they acted
reasonably under the circumstances, strong Presidents who have forcefully and successfully
responded to military crises have always enjoyed the support of Congress, the courts, and
the American people. Thus, modern laments that these Presidents have gone "too far" often
smack of Monday-morning quarterbacking. The examples of Lincoln and Roosevelt are
especially illuminating.
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We should err on the side of security
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 88
The overall picture, however, is best captured by America's decision to build a monument
honoring Roosevelt, as it did for Lincoln. These marble symbols send the clear message
that, in a high-stakes war, Presidents should err on the side of using too much force
(including intrusions on constitutional liberties) to win, rather than risk defeat by showing
greater sensitivity for individual rights.
War on terror is unique
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 88
Since September 11, 2001, America has been engaged in a unique conflict. Unlike past
wars, America is not fighting a nation-state for a finite time period in a series of battles.
Rather, we are confronting shadowy worldwide private terrorist groups like al Qaeda,
which strike indiscriminately in a struggle that will probably never end. Accordingly, the
Bush Administration responded with equally innovative strategies and tactics. The War on
Terrorism raises difficult constitutional questions concerning how to strike the optimum
balance between national defense and individual rights.
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Civil Liberties Infringements Justified
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Authorzation to Use Military Force (AUMF) and the PATRIOT Act provide legal authority
for the President’s actions in the war on terror
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 89
First, Congress authorized the President to use "all necessary and appropriate force" against
those who planned, committed, or aided the terrorist attacks. Invoking this "Authorization
for Use of Military Force" (AUMF) and his independent Article II powers, Bush deployed
troops to Afghanistan (whose government had backed al Qaeda) and beefed up
antiterrorism efforts both at home and abroad. Among other things, Bush claimed the
power to indefinitely detain "enemy combatants" (a status determined by the executive
branch) and, at his discretion, to try them by military commissions appointed by the
Secretary of Defense.
Second, the "Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism" (USA PATRIOT) Act increased surveillance of
suspected terrorists, especially by reducing restrictions on domestic gathering of foreign
intelligence; facilitated the deportation of immigrants suspected of involvement with
terrorism; authorized law enforcement officials to search homes and businesses without
prior notice to the owners ("sneak and peek"); permitted government searches of telephone,
internet, financial, and other records; and enhanced the Treasury Secretary's power to
regulate and monitor financial transactions involving suspected terrorists and their allies.
The USA PATRIOT Act's foes have argued that it violates constitutional rights and
liberties in many ways, most notably by allowing either the indefinite detention or arbitrary
deportation of immigrants and by authorizing federal law enforcement officials to search
private homes, business, and records without the affected party's knowledge.
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Bush’s actions in the war on terror less restrictive than Lincoln’s or Roosevelt’s
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 90
First, unlike Lincoln and Wilson, Bush did not censor speech or the press or criminally prosecute
his critics, despite their vehement and often vicious verbal attacks on him and his antiterrorism
policies. Admittedly, the USA PATRIOT Act has raised legitimate First Amendment concerns,
but they are of a far smaller magnitude than those that resulted from previous Presidents' flagrant
suppression of valid opposition to their wartime actions.
Second, in contrast to FDR's treatment of Japanese Americans, President Bush worked with
Congress to specifically prohibit and condemn discrimination against Arab and Muslim
Americans and to ensure review of all allegations of civil rights abuses. Such sensitivity was
welcome in the emotionally charged aftermath of the September 11 attacks.
Third, Lincoln suspended the writ of habeas corpus unilaterally and broadly, whereas Bush and
Congress left it intact. The only exception was for a few hundred foreign suspected terrorists
imprisoned at the U.S. Naval Base in Guantanamo Bay, Cuba, who were given extensive
administrative and judicial review as a substitute.
Public supported Bush’s actions in the war on terror
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 91
My preliminary assessment, then, is that Bush consistently took strong actions to fight terrorism;
that Americans (and their representatives in Congress) always supported these efforts; but that
the Iraq War and the economic downturn fatally weakened his Presidency. Bush did not,
however, adopt many of the liberty-infringing policies of his predecessors, such as censoring the
press or imprisoning members of a particular ethnic group.
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Civil Liberties Infringements Justified
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Conditions of war and insecurity justify actions that infringe on civil liberties. Modern
infrigements are mild by historical comparison
Robert Pushaw, law professor, Pepperdine, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 92
War is hell. Winning one requires many hard decisions based on constantly changing
military circumstances and incomplete information. Presidents in the midst of a national
security crisis often conclude that they have to do unspeakably awful things, as when
Lincoln ordered that Union Army deserters be shot and Truman chose to drop atomic
bombs. Keeping in mind the emergency conditions that actually existed and the facts the
President had available, it is usually difficult to conclude with certitude that his specific
infringement of civil liberties was unnecessary for military success. It is equally speculative
to assert that regret over wartime excesses has directly resulted in enhanced protection of
civil rights. Similarly, no one can objectively determine whether such a tradeoff (if one
existed) was worth it. As with all armed conflicts, reasonable people can disagree about the
optimum balance between individual rights and collective security in the War on
Terrorism. In evaluating the response of the Bush and Obama Administrations to this
threat, it is important to recognize the validity of a range of possible responses and to
compare Presidents to their real-life predecessors, not to some idealized leader.
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Civilian Trials for Terrorists Risk Terrorism
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Trying terrorists in civilian courts makes it more difficult to convict them
Ashley Pope, JD, Fordham International Law Journal, February 2011, “After Guantanamo: Legal
Rights of Foreign Entities Held in United States War on Terror,” p. 532
Detention by law enforcement authorities in the United States and subsequent criminal trial in the
civilian justice system bring more stringent procedural protections than military commissions do:
(1) arrests require probable cause; (2) those arrested on criminal charges must be read their
Miranda rights; (3) the prosecution may not use any statements made by the suspect during
interrogation if the suspect was not apprised of his or her rights; (4) the Federal Rules of
Evidence exclude hearsay statements unless they fit within narrow exceptions; (5) in order for
evidence to be admitted, it must be authenticated or identified; and (6) convictions require proof
beyond a reasonable doubt. While these guarantees provide a detainee with more rights, they
may also create problems for the government when trying the detainee. For example, evidence
gained through the use of enhanced interrogation techniques would likely be excluded. President
Obama has prohibited the use of such techniques, but many of the Guantanamo detainees were
subjected to them before this prohibition. Any confessions obtained through the use of enhanced
interrogation techniques would create evidentiary problems in a federal courtroom.
Trial courts force classified information to be revealed
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 470
The question of what to do with captured high-level al Qaeda leaders, such as suspected 9/11
mastermind Khalid Sheikh Mohammed, has vexed both the Bush and Obama Administrations.
For those who believe that terrorists must be delegitimized and denied status as combatants, the
appropriate course of action would be criminal prosecution. On the other hand, for those who
want to exact lawful retribution, but fear that federal court trials will compromise national
security by revealing classified information, the appropriate course of action might be
prosecution in a military court.
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Miranda Warnings For Terrorists Risk Terrorism
19
Miranda warnings will cause suspects to “go silent,” making it difficult to prevent attacks
Ashley Pope, JD, Fordham International Law Journal, February 2011, “After Guantanamo: Legal
Rights of Foreign Entities Held in United States War on Terror,” p. 546-7
Because the "war on terror" is likely to continue both before and after the closure of the
detention facilities at Guantanamo, it is also necessary to address the question of how to
detain and try foreign nationals suspected of terrorism on US soil going forward. On US
soil, initially, military detention of a foreign national suspected to be a terrorist may
provide the better option for addressing the sensitive security and procedural concerns
unique to the "war-on-terror" context and may better address intelligence-gathering needs,
assuming the detention is the result of an imminent or immediately thwarted attack.
Terrorist attacks are often the result of planning and coordination, and, as seen in the
controversy surrounding the questioning of Abdulmutallab, it is important to get
information about co-conspirators in order to prevent subsequent harm. The Miranda
warnings required in the civilian system can cause a suspect to "go silent." While Miranda
rights are a tenet of the American criminal justice system, the war-like context of terrorism,
even on American soil, cannot be ignored. Less immediate threats can be addressed in the
civilian criminal justice system.
2
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Eliminating Detention Without Charge Risks Terrorism
20
Independent commission agrees that 50 detainees warrant indefinite detention
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 462-3
Under President Obama, the Department of Defense has stayed the course: No new
combatants have been sent to Guantanamo, and the Guantanamo detainee population has
continued to shrink as a result of the determinations of additional ARHs. Here too,
President Obama has followed the late-tenure policies of his predecessors. Both Presidents
Bush and Obama can be said to have learned from the mistakes that President Bush made
during his first term. The Obama Administrationfurther refined matters by convening a
special task force charged with evaluating the remaining detainees and recommending final
dispositions for them. The task force concluded that most detainees should be repatriated,
but that about fifty warranted indefinite detention.
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Preventive Detention is Critical to Fight Terrorism
21
Detention is necessary because terrorists can’t be deterred
Dru Stevenson, Professor of Law, South Texas College of Law, Stanford Law & Policy Review,
2011, “Effect of the National Security Paradigm on Criminal Law,” p.
Second, incapacitation, or making crimes less feasible to commit, is replacing the tactic of
deterring through threatened punishments. There seems to be a consensus that terrorists are
impervious to classic deterrence because they are not afraid of punishment. The symbol of
the clever suicide bomber, who spends months in flight lessons or learning about
pyrotechnics, has shattered the traditional view of criminals as impulsive, antisocial, and
supremely selfish. Punishment twists into martyrdom. Disincentives for terrorists are on
the front end of the equation, increasing the transaction costs of committing the act or
raising the risk of botching the job, rather than offsetting the presumed rewards with a
possible penalty, as we have done in the past. The new paradigm is more concerned with
lowering the chances of success than discouraging the behavior through threats. Terrorism
has proved impervious to traditional criminal prohibitions and deterrence, so increasingly
the United Nations and the federal government have called for indirect measures that seek
to make commission of the crime less feasible. Indirect rules attacking the funding sources
or the ability of criminals to communicate secretly, travel easily from place to place, get
information about targets, or obtain weapons, are the favored means in combating
terrorism. Typical is the call from Professor Roach, who suggests: The Patriot Act
conferred more authority and discretion on federal law enforcement officials, and on the
executive branch generally. Most of the increased authority pertains to gathering
information, such as surveillance or authority to demand voluntary disclosure of
information. Data mining is one important issue. Information-related discretion is the most
obvious pro-government discretionary shift in anti-terrorism and other newer penal
statutes, but the effect is not boundless.
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Stings/Entrapment Critical to Fight Terrorism
22
Stings and entrapment critical to disrupting terrorism
Dru Stevenson, Professor of Law, South Texas College of Law, Stanford Law & Policy Review,
2011, “Effect of the National Security Paradigm on Criminal Law,” p. 160-1
The defense of entrapment is our legal system's primary method for regulating undercover
operations or stings. The national security paradigm has made the entrapment defense more
significant (but probably less available) because the goal of protecting safety necessitates more use
of undercover informants. More entrapment claims today relate to funding terrorism and to bomb
plots. Sting operations are even more useful for incapacitation than for deterrence, because they
allow infiltration of criminal groups and sabotage of plots from within, or diversion of dangerous
potential criminals into decoy plots. Stings and other undercover operations also illustrate the frontend deterrence that permeates the new paradigm. They divert criminals' resources from their own
harmful objectives by plaguing criminal organizations with uncertainty, internal mistrust, costly
screening methods for recruits, etc. As explained elsewhere, terrorist leaders and syndicate
organizers know that a significant percentage of their recruited minions are likely to be informants
or undercover agents; conversely, potential recruits may realize that their recruiter could be a
government agent, which would have a chilling effect on the entire enterprise. Mistrust within a
criminal organization raises the transaction costs of crime, including terrorism, because criminal
leaders and subordinates alike must divert resources to screening and testing their co-conspirators
more than they would otherwise. Criminal conspiracies make less progress when added costs drain
away time, energy, and other resources. As the field becomes more cluttered with undercover
government agents, leaders find it more difficult to trust recruits with necessary details and
assignments, and more difficult to recruit anyone in the first place. The likelihood of unknown
traitors within the ranks is discouraging and deflating for radicals. If terror groups find motivation
in their zeal instead of pecuniary gain, infiltrators undermine the most valuable resource of the
conspiracy. This is a type of "lemons effect" on criminal conspiracies, which provides an indirect
benefit to the rest of society. Anti-terrorism sting operations often lead to entrapment claims.
Even so, the defense appears to be less availing for defendants than before. The federal system, and
most states, follows the "subjective test" for the entrapment defense, which focuses on whether the
defendant was "predisposed" to commit the crime. Yet predisposition is plain, at least for jurors,
merely from the radicalism that necessarily motivates a terror crime. The national security mindset
clouds the predisposition question under the subjective test, because these criminals seem less like
weak or selfish misfits and more like a true threat to society. Radical political views overlap with
anti-social attitudes, and color the predisposition question under the subjective test. In the minority
of states that use an alternative test for the entrapment defense, the "objective test" of the Model
Penal Code, the question instead is how overboard the police actions were during the undercover
operation. Viewed through the lens of national security, however, the perceived stakes of societal
harm and disruption will inevitably justify more extreme police actions that would seem otherwise
appropriate. National security concerns will tend to make undercover operations more prevalent, as
this tactic can offset, not merely supplement, surveillance. A sting operation can be cheaper than
surveillance in many ways: in terms of political blowback, necessary equipment, warrants, and data
sorting/analysis. Of course, sting operations also supplement surveillance where dangerous
individuals are secretive or generate too little identifying information.
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Information Gathering/Surveillance Critical to Fight Terrorism
23
Informaiton gathering critical to fight terrorism
Dru Stevenson, Professor of Law, South Texas College of Law, Stanford Law & Policy Review,
2011, “Effect of the National Security Paradigm on Criminal Law,” p. 165-6
Information access is the single most obvious way in which the national security paradigm
has already changed police tactics and strategies. Local law enforcement found itself
recruited into anti-terrorism campaigns, primarily assisting by gathering and sharing
potentially useful information. National security concerns, triggered by horrific surprise
attacks, drove a crusade to cull useful facts from as many sources as possible. Information
gathering has brought budgetary shifts, diversion of police training time, and a completely
different type of collaboration between enforcement agencies. Less obvious, perhaps, is
the notion that the technology, and the corresponding cultural infatuation with information
and communication, are as much a cause of the shifting paradigm in policing as they are a
means for implementation. For the first time in history, technology allows police to do
more prevention than post-crime pursuit, and even when prevention fails and incidents
occur, to respond instantly rather than gradually. Police, prosecutors, and lawmakers have
an opportunity to reinvent their roles in criminal justice. National security concerns
certainly imposed an intelligence-gathering role on law enforcement, but growth in
capacities for intelligence opened new horizons for ensuring public safety, rather than
merely restoring it after an incident. It is a mutually reinforcing phenomenon.
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Military Commissions Good
24
Military Commissions best balance security and rights needs
Ashley Pope, JD, Fordham International Law Journal, February 2011, “After Guantanamo: Legal
Rights of Foreign Entities Held in United States War on Terror,” p. 545-6
Once Guantanamo no longer holds foreign nationals "captured" in the "war on terror," the
United States can move beyond the Bush - and now the Obama - administration's years of
letting detainees languish at Guantanamo. After they are in the United States, however, the
next step should be to prosecute them before military commissions. While a federal
criminal trial provides "gold medal justice," it may not be possible to try "war-on-terror"
detainees in this system due to the continuing legacy of Guantanamo and the questionable
tactics used against detainees during the Bush administration. Those who can be tried in
the federal system, of course, should be, as few question the legitimacy of those
proceedings. Trial before a military commission should not be looked upon, however, as a
failure. The Obama administration should embrace military commissions as an
improvement upon the recent past 265 and seize the opportunity to acknowledge that the
government violated many detainees' rights. Use of the commissions to prosecute
terrorism can be viewed as a necessary apology for the last few years and an impetus to do
better in the future. Trials before a military commission are, in reality, the only option for
many of the detainees still in custody at Guantanamo that strikes a balance between the
need to legitimize the continued detention of those too dangerous to release and the need to
redeem the United States' reputation among its allies.
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Military Commissions Good
25
Military tribunals satisfy the Genevan Conventions
Ashley Pope, JD, Fordham International Law Journal, February 2011, “After Guantanamo: Legal
Rights of Foreign Entities Held in United States War on Terror,” p. 547
Going forward, federal criminal trials would become more feasible, depending on the
circumstances surrounding pre-trial detention. Concerns about torture behind closed doors
should be alleviated now that detainees are protected from enhanced interrogation
techniques and other questionable treatment. As discussed above, trial before a military
commission on US soil is also a lawful and appropriate option, should it be necessary, but
it is difficult to provide a persuasive reason why a civilian criminal trial would not be the
preferred option. After all, a criminal trial in federal court unquestionably satisfies the
Geneva Conventions. Trial before a military commission as constituted under the MCA of
2009, however, would satisfy the Geneva Conventions as well.
New, improved procedural protections for those tried in front of military commissions
Peter Shane, Chair in Law, Ohio State, New York Law School Law Review, 2011/12, “The
Obama Administartion and the Prospects for a Democratic Presidency in a Post-9/11 World,” pp.
34-5
On the use of military commissions, President Obama waited until May 2009 before
publicly stating that such commissions "are appropriate for trying enemies who violate the
laws of war, provided that they are properly structured and administered." In taking that
stance, however, he indicated five respects in which he felt the version of military
commissions offered by the Bush administration was inadequate. Following the President's
statement, then secretary of defense Robert M. Gates amended military commission
procedures to (1) prohibit the admission of statements obtained through cruel, inhuman,
and degrading treatment; (2) give detainees greater latitude in their choice of counsel; (3)
afford protection for those defendants who refuse to testify; (4) place the burden of
justification for using hearsay on the party trying to use it; and (5) confirm that military
judges are empowered to determine their own jurisdiction. In October 2009 President
Obama signed into law the Military Commissions Act of 2009, which made all five
changes statutory.
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Military Commissions Good
26
Only a few cases have been prosecuted by military commissions
Eugene Fidell, Senior Research Scholar in Law and Florence Rogatz Lecturer in Law, Yale Law
School; President, National Institute of Military Justice, New York Law School Law Review,
2011 / 2012, “Ten Years On: Military Justice and Civil Liberties in the Post-9/11 Era,” p. 107-8
What to do about people captured in the course of operations against al-Qaeda (which
conducted the 9/11 attacks) and the Taliban (which harbored al-Qaeda in Afghanistan)?
The choices were few. One approach was to prosecute those we were able to capture before
a federal district court, as was done with the perpetrators of the first World Trade Center
bombing on February 26, 1993. Another alternative was to prosecute them before general
courts-martial, which have authority to try offenses against the law of war by persons who
are subject to the law of war. The Bush administration did not follow that route, even
though it had been urged by experts. Instead, only two months after 9/11, President George
W. Bush issued a Military Order authorizing the creation of military commissions, a type
of military court not used since the aftermath of World War II. These were contemplated
by the UCMJ, but many of the details were not spelled out. The Bush commissions were
slow to get off the ground, and eventually, after the Supreme Court found them flawed,
Congress stepped in and passed the Military Commissions Act of 2006 (MCA). In 2009,
another Military Commissions Act was passed, but to date the government has
prosecuted only a handful of cases under it and the predecessor arrangements.
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No Water-Boarding Now
27
Obama has stopped water-boarding
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 454
In other areas, President Obama has rightly changed policy to avoid practices, such as
waterboarding, that were regarded by many as of questionable legal validity
Obama banned waterboarding
Yung Yin, law professor, Lewis & Clark, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 108
The Obama Administration viewed waterboarding differently. Unlike Mukasey, Obama's
nominee for Attorney General Eric Holder unequivocally stated during his confirmation
hearings that he believed waterboarding to be torture. President Obama quickly banned the
procedure upon assuming office.
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No Torture Now
28
Torture was even abandoned at the end of the Bush administration
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 458-9
The Bush Administration sought, and obtained, legal opinions regarding the legality of the
CIA's so-called enhanced interrogation techniques from the Office of Legal Counsel
(OLC). The infamous "Standards of Conduct for Interrogation" memorandum authored by
then-Deputy Attorney General John Yoo, which was not publicly released until 2005,
opined that interrogation tactics might constitute degrading conduct but not torture so long
as they did not cause physical pain equivalent to that caused by organ failure. However,
when Jack Goldsmith took over as Assistant Attorney General for OLC, he withdrew the
Yoo memorandum because he concluded that it was flawed. After Goldsmith's departure,
then-Acting Assistant Attorney General Dan Levin wrote a replacement memorandum that
began by stating: "Torture is abhorrent both to American law and values and to
international norms." By the latter part of President Bush's tenure, the CIA had apparently
abandoned its enhanced interrogation techniques.
Obama has even banned ehnahced interrogation techniques
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 459
Even with the withdrawal of the Yoo memorandum and the elimination of waterboarding,
the Bush Administration remained defined to its end by the aggressive interrogations that
took place at Guantanamo and in the secret CIA prisons. Upon assuming office, President
Obama issued an executive order limiting U.S. government interrogation methods to those
approved of in the U.S. Army Field Manual --a widely applauded decision.
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Indefinite Detention Doesn’t Violate International Law
29
International law does not prohibit the indefenite detention of combatants
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 457
The absence of an international equivalent of the Hamdi decision makes it harder to
demonstrate conclusively that President Bush's decision to detain captured al Qaeda and
Taliban fighters as enemy combatants was not a mistake. Nevertheless, there are reasons to
doubt that indefinite military detention of such persons is a per se violation of international
law. The International Committee of the Red Cross has, after a five-year study, concluded
that in a noninternational armed conflict--which is how the Supreme Court characterized
the war against al Qaeda in Hamdan v. Rumsfeld --members of nonstate groups can be
targeted as combatants where they have a "continuous combat function." Targeting is not
the same as detaining, but it would be anomalous to allow a nation to shoot non-state actors
engaged in a continuous combat function but not to detain them should they be captured.
Domestic and international law permit the detention of non-state actors
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 457
President Obama has not deviated from his predecessor's legal position regarding the
legality of military detention of non-state actors such as al Qaeda members. It does not
appear to have been a legal mistake, as domestic law clearly permits the President to detain
persons pursuant to the Authorization for Use of Military Force (AUMF), and international
law appears to permit it as well.
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General International Law Answers
30
International law does not apply to the US
Ashley Pope, JD, Fordham International Law Journal, February 2011, “After Guantanamo: Legal
Rights of Foreign Entities Held in United States War on Terror,” p. 516-7
Some lower courts in the United States have dismissed international law and held it to be
inapplicable as a source of rights within the United States. The Court of Appeals for the
DC Circuit summarizes this position: "We have no occasion here to quibble over the
intricate application of vague treaty provisions and amorphous customary principles. The
sources we look to for resolution ... are the sources courts always look to: the text of
relevant statutes and controlling domestic case law." The DC Circuit has recently refused
to re-evaluate the issue the enforceability of international law in US courts.
International law facilitates post-colonial and imperial control
Ernesto Hernandez-Lopez, law professor, Chapman, 2011, National Security, Civil Liberties, and
the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 58-9
International law had a central role in extending imperial and post-colonial control around
the globe. International law seeks to order the obligations and rights in foreign relations
belonging to states and individuals. With states extending their influence overseas, this set
of legal doctrines alternatively justified, facilitated, or resisted imperial influence. Postcolonial perspectives critically examine both international law's assumptions and its
limitations (past, present, and future). Norms and doctrines in international law are based
on previous state practices. These practices are often an outgrowth of European states, or
more powerful states, expanding their influence worldwide and seeking economic and
territorial gain. From its genesis, international law developed from these contexts of
empire, colonization, and protectorates.
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General International Law Answers
31
International law grounded in imperialism
Ernesto Hernandez-Lopez, law professor, Chapman, 2011, National Security, Civil Liberties, and
the War on Terror, ed. Katherine Darmer and Richard Fybel, pp. 59
In Imperialism, Sovereignty and the Making of International Law, Antony Anghie shows
how international law, from its sixteenth century origin to the present day multilateral
institutions, developed from the imperial encounter initiated by European states. Central to
this encounter is how international legal doctrine uses the concept of sovereignty to include
or exclude certain populations. He examines the assumptions in international law's
reasoning and its cultural currency throughout history. Anghie argues that the discipline
and practice of international law possessed a "civilizing mission" in which Western
mindsets classified the Orient or non-European as "the Other." Legal determinations of
"cultural difference" repeatedly classified societies as "civilized" or "uncivilized." Foreign
relations practice claimed that law created by "civilized" perspectives was "universal,"
while "uncivilized" perspectives on the law were instead particular. Race-based reasoning
motivated legal determinations of civilized versus uncivilized persons. Through this
process, native or non-Western populations were denied international sovereignty.
Sovereignty provided recognized final authority in the international system, which was
vital to protect any state independence from foreign powers. To have influence in this
international system, many non-European societies found accommodating Western
pressure necessary, which led to relationships as colonies or protectorates. Economically
and militarily powerful states extended their governmental authority overseas to attain
colonies, extend empires, establish protectorates, and lease territories.
1
Internatinal law grounded in Western imperialism
Ernesto Hernandez-Lopez, law professor, Chapman, 2011, National Security, Civil Liberties, and
the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 59-60
Peter Fitzpatrick and Eve Darian-Smith present another post-colonial insight into international law:
the "ambivalence in the rule of law." Fitzpatrick and Darian-Smith examine how law is at the
forefront of the West's relations to its "others." They explain how European or Western structures
seek to exclude non-Western identities as "others," savages, or barbarians, and even those in the
West who are "less occidental than they should be." This is antithetical to international law's claims
of universalism because it rejects while it simultaneously claims to be inclusive or allencompassing. This produces an "irresolute identity," wherein the West is excluding yet
encompassing its "others." Fitzpatrick and Darian-Smith refer to Homi Bhabha's characterization of
post-colonialism as "in between" two impossibilities of "ultimate fixity and ultimate
responsiveness." Historians examining U.S.-Latin American relations similarly examine this
ambivalence. In a cultural study of these histories, Gil Joseph refers to "contact zones" where U.S.
and Latin American cultures meet. These exchanges are "multifaceted and multivocal" producing
"blurring of boundaries, of who or what is 'local' and 'foreign,' 'inside' or 'outside.'" For
Guantanamo, this includes Cuban and third country national base workers traveling between Cuban
and American jurisdiction during everyday contexts such as remuneration and commuting and in
highly volatile situations such as criminal prosecutions and worker detentions.
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No Human Rights Violations at Guantanamo
32
Human rights abuses in Guantanamo not supported
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 458
Stories about the abusive and coercive interrogation tactics used at Guantanamo Bay (and
their comparison to the abuses that occurred at the Abu Ghraib prison in Iraq with
disastrous consequences) no doubt played a significant role in inflaming public opinion
about the detention facility. Other rumored mistreatment, such as the deliberate destruction
of copies of the Koran, did not occur, was not substantiated, or was exaggerated or
otherwise wrongly described, but was so incendiary as to add to the outrage over
Guantanamo. (Waterboarding, or simulated drowning, does not appear to have been used
at Guantanamo, only in secret prisons operated by the Central Intelligence Agency (CIA) in
Eastern Europe.)
23
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Indefinite Detention Legal
33
Authorization to Use Military Force gives the President the authority to detain non-soldiers
Yung Yin, law professor, Lewis & Clark, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 99-100
The second criticism directed at the Bush Administration that was more severe: they argued that
under both domestic and international law, the United States lacked legal authority to detain nonsoldiers, absent regular criminal process. This criticism absolutely embraced the Law
Enforcement Paradigm.
Under domestic law, however, the United States' use of military force against suspected al Qaeda
and Taliban militants in Afghanistan and Pakistan is arguably justified pursuant to the
congressional Authorization for Use of Military Force ("AUMF"), which was a joint resolution
Congress enacted on September 18, 2001.The AUMF directed President Bush to "use all
necessary and appropriate force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or
persons ... ."
Such AUMFs are the functional equivalent of a declaration of war. Although the text of the
AUMF left it up to the President to determine who had planned and executed the 9/11 attacks,
legislators no doubt understood that President Bush would be attacking al Qaeda and the Taliban.
Even as the World Trade Center was collapsing from the impacts of the two hijacked airplanes,
key federal counterterrorism officials, such as National Coordination for Security and
Counterterrorism Richard Clarke, FBI Counterterrorism Chief Dale Watson, CIA Director
George Tenet, and Deputy Secretary of State Richard Armitage, had already guessed that al
Qaeda was responsible. Air Force General Dick Myers announced that morning that forty-two
Taliban bombing targets had already been identified.
Because the national war powers are shared between Congress and the President, the President is
at his maximum authority to use military force against al Qaeda. He has not only his inherent
Commander-in-Chief power, but also congressional authorization (which explicitly contemplated
military force against entities beyond states). The argument that domestic law nonetheless
restricts the President from using military force against al Qaeda must therefore rest on a narrow
conception of Congress's power to define the enemy and to authorize the President to defend the
nation.
There are arguments suggesting that Congress could not leave it up to the President to determine
the identity of the enemy. This is, in essence, a non-delegation argument, and the non-delegation
doctrine has been watered down to the point of virtual irrelevance, especially in the domain of
foreign relations. Even if accepted, this argument, at most, points to a drafting error: Congress
could have enacted the AUMF, but it needed to have specified that the President was authorized
to use all necessary and appropriate force against al Qaeda and the Taliban.
A stronger form of the argument might be that Congress lacks the constitutional authority to
authorize the use of military force against a non-state group such as al Qaeda. That is, the
weapons of war can be lawfully used against only another nation. (A common response to this
assertion is to note that the United States sent its naval forces to fight the Barbary Coast pirates in
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Sponsored by Open Society Foundations & IDEA
the early 1800s, but in fact, states like Algiers loosely organized those pirates.) One could also
read the Posse Commitatus Act as being an expression of this perspective; that federal law
forbids the use of the U.S. military for domestic law enforcement purposes.
The problem with this argument, ultimately, is that as a matter of domestic law, Congress and the
President have both spoken clearly and unequivocally. The primary target of the AUMF is the al
Qaeda terrorist group, not a foreign nation, though Afghanistan has served as the primary
geographic location of the military conflict, and its former rulers, the Taliban, were initially a
secondary target because they had harbored al Qaeda. Proponents of the view would therefore
need the courts to intervene and impose more restrictive interpretations of the war-making
powers of the political branches. However, notwithstanding the Supreme Court's post-9/11
terrorism cases, which were generally seen as rebukes of the Bush Administration, federal courts
have a long history of deferring to Congress and the President about the legitimacy of
declarations of war or equivalent statutory authorizations.
Moreover, the Supreme Court's decision in Hamdan v. Rumsfeld presupposes the legitimacy of
using military force against non-state actors. In a key part of that opinion, the Court rejected the
Bush Administration's argument that Hamdan - alleged to have been al Qaeda leader Osama bin
Laden's personal driver and bodyguard - was not entitled to any privileges under the Geneva
Convention. The gravamen of the Bush Administration's position was that al Qaeda, as a nonstate group, was not a signatory to the Geneva Convention and therefore its members could not
claim its protections. International law scholars widely criticized this position and argued that if
al Qaeda members were not POWs covered by the Third Geneva Convention, then they had to be
treated as civilians covered by the Fourth Geneva Convention.
Significantly, Hamdan concluded that even al Qaeda fighters were covered by Common Article 3
of the Geneva Convention, which states that "in the case of armed conflict not of an international
character occurring in the territory of one of the High Contracting Parties, each Party to the
conflict shall be bound to apply, as a minimum," certain redundant standards of humane
treatment. Although the Bush Administration had argued that the armed conflict against al Qaeda
was "international" because it spanned the territory of more than one nation (and hence Common
Article 3 did not apply), the Court rejected that interpretation. According to the Court, "armed
conflict not of an international conflict" referred to military fighting other than that between
enemy nations and therefore, applied exactly to the conflict between the United States and al
Qaeda.
Some could have understood President Obama's campaign pledge to close the detention facility at
Guantanamo Bay at the time as evincing opposition to the concept of indefinite detention without
charges, but it could also have been simply opposition to the perceived abuses at Guantanamo
joined with recognition that the detention facility had become a toxic symbol.
By mid-2010, it was apparent that President Obama did not oppose indefinite detention; a
taskforce created to formulate the new Administration's detainee policy concluded that some
detainees should be prosecuted in civilian courts and some in military courts, while a rather small
group of other detainees could not be prosecuted, yet were too dangerous to be released.
Furthermore, Camp Delta remains an operational detention facility at Guantanamo Bay. Though
President Obama's failure to meet his own stated deadline was largely the product of political
obstacles (both domestic and international), those thwarted plans demonstrate an acceptance of
the Military Force Paradigm. On the domestic front, President Obama had wanted the federal
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government to buy one or more unused prisons from states to serve as long-term detention
facilities for Guantanamo detainees. However, driven largely by Republican opponents, Congress
thwarted the plan by threatening to refuse to appropriate the necessary funding to implement this
plan. In late 2009, President Obama shifted focus primarily to his domestic agenda, particularly
healthcare reform, which dominated media headlines into spring 2010. After Congress finally
completed the complicated process of enacting the Patient Protection and Affordable Care Act, it
turned its attention to reform of financial regulation of Wall Street. In addition, Justice Stevens
announced his planned retirement from the Supreme Court, thus shifting attention to the
selection of his replacement. This is not to say that the Obama Administration was incapable of
addressing multiple issues simultaneously, nor that it had ceased any efforts at all in reducing the
detainee population at Guantanamo Bay by seeking further repatriations; however, it is important
to observe that there were no high-profile plans in the first half of 2010 to alter the government's
position regarding the legality of military detention.
Passage of the Military Commisions Act means detention complies with the Hamdan
decision
Yung Yin, law professor, Lewis & Clark, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 103
It did not take long for the Bush Administration to designate a small number of detainees for
military prosecution. One of the first was Salim Ahmed Hamdan, allegedly a personal driver and
bodyguard for Osama bin Laden. However, for reasons that are not entirely clear, the
government was slow to take any actual steps to carry out Hamdan's prosecution. The Defense
Department did not promulgate rules for these military commissions until it was pushed to do so
by Lt. Cmdr. Charles Swift, the Navy lawyer assigned to represent Hamdan. Swift represented
his client aggressively, challenging the military commissions' lack of rules and regulations
through habeas petitions. Further litigation delayed Hamdan's prosecution. Meanwhile, critics
charged that the Bush Administration's military commissions would be unfair because the rules
gave military judges too much leeway to exclude defendants from the courtroom proceedings,
hearsay evidence could be admitted against the defendant, and the defendant would be denied
meaningful access to classified material. Then, in Hamdan v. Rumsfeld, After ruling on
jurisdictional issues in Hamdan's case, the Supreme Court concluded that the Defense
Department military commission procedures conflicted with the Uniform Code of Military
Justice. Because Hamdan was essentially a decision of statutory interpretation, the Court left it
open to the President to secure congressional approval for his military commissions. In 2006,
Congress enacted the Military Commissions Act, which codified nearly all of the key rules and
regulations underlying President Bush's planned military commissions.
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Terror Risk High Now
36
Threat of home-grown terrorism high
Stephen Schulhofer, law professor, New York University, Journal of Criminal Law &
Crimonology, Spring 2011, p. 365
In part, the growing involvement of local police flows from perceived changes to the nature of
the terrorist challenge. In the aftermath of the September 2001 attacks, the threat was perceived
as a largely foreign-source affair. The July 2007 National Intelligence Estimate played down
terrorist threats of domestic origin and identified the growing strength of al Qaeda in western
Pakistan as the principal danger to the United States. In late 2009, this perception began to
change with a series of allegations concerning terrorism conspiracies developed within the United
States. The 2010 National Security Strategy warned that "recent incidences of violent extremists
in the United States" demonstrate "the threat to the United States and our interests posed by
individuals radicalized at home."Of 202 people charged with serious terrorist crimes since
September 11, 2001, more than half have been U.S. citizens, and over one-third of those have
been American-born.
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Guantanamo Bay Doesn’t Increase Terror Recruiting
37
No evidence that Guanganamo is actually a recruiting tool
Gregory McNeil, law professor, Pepperdine, Summer 2011, Journal of Criminal Law &
Criminology, Preventive Detention: The Status Quo Bias and Counterterrorism Detention, p.
The main argument made by think tanks in support of preventive detention and in
opposition to the notion that Guantanamo serves as a recruiting tool is that Guantanamo is
rarely mentioned in the messages delivered by top al Qaeda leaders. Assuming that the list
of collected statements and interviews from top al Qaeda leaders are representative of al
Qaeda's recruiting propaganda, those past statements reveal that top al Qaeda officials
rarely mention preventive detention or Guantanamo. Moreover, even in the messages
where Guantanamo is referenced, it is incorrectly conflated with Abu Ghraib (though this
does not necessarily preclude the fact that preventive detention may act as a recruiting tool)
and when mentioned it is mentioned very briefly. For example, Dr. Ayman al-Zawahiri,
one of al Qaeda's top strategists, gave a twelve-page statement entitled "Nine Years After
the Start of the Crusader Campaign" with four pages devoted to Pakistan, two pages to
Afghanistan, nearly two to Egypt, two to Palestinians, and two to al Qaeda's prospects for
victory. In this same statement, only a single sentence mentioned how the Koran was
desecrated in Guantanamo, Iraq, and elsewhere. In fact, a keyword search of all the
messages by top al Qaeda leaders yielded only seven mentions of Guantanamo, while there
are numerous more mentions of words like Israel/Israeli/Israelis (ninety-eight mentions),
Jew/Jews (ninety-four mentions), Zionist(s) (ninety-four mentions), and other words that
focus on the overall Zionist-Crusader conspiracy narrative against Muslims.
43
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Military Action Needed to Fight Terror
Military force needed to fight Al Qaeda
Yung Yin, law professor, Lewis & Clark, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 109
But no one should be surprised by President Obama's use of the military to attack al Qaeda.
As a candidate, he declared that if the United States had "actionable intelligence" and
Pakistan refused to act, he was completely willing to order American military forces into
action. Military force is a necessary tool in the fight against al Qaeda because there are
limits to the reach of law enforcement.
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*** Con ***
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Security Crisis Doesn’t Justify Civil Liberties Violations
40
A State of War is not a blank check for civil liberties abuses
Marjorie Cohn, law professor, Thomas Jefferson, 2011, National Security, Civil Liberties, and
the War on Terror, ed. Katherine Darmer and Richard Fybel, p 359
Justice O'Connor wrote for the Hamdi Court: "We have long since made clear that a state
of war is not a blank check for the President when it comes to the rights of the Nation's
citizens." O'Connor noted, "even the war power [of the President] does not remove
constitutional limitations safeguarding essential liberties." O'Connor echoed a theme she
has raised in prior Court decisions, which is particularly relevant today: "It is during our
most challenging and uncertain moments that our Nation's commitment to due process is
most severely tested; and it is in those times that we must preserve our commitment at
home to the principles for which we fight abroad."
Unlimited detention is a means of oppression
Marjorie Cohn, law professor, Thomas Jefferson, 2011, National Security, Civil Liberties, and
the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 359
O'Connor made clear that detentions of U.S. citizens must be limited to the Afghanistan
context; they are not authorized for the broader "war on terrorism." She acknowledged that
"history and common sense teach us that an unchecked system of detention carries the
potential to become a means for oppression and abuse of others who do not present that
sort of threat."
Executive does not possess unlimited wartime powers
Marjorie Cohn, law professor, Thomas Jefferson, 2011, National Security, Civil Liberties, and
the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 359
Interestingly, Justice Scalia, in his dissenting opinion joined by Justice Stevens, would not
permit the indefinite detention of an American citizen in Hamdi's situation. They would
require the government to press criminal charges or release the individual, unless Congress
were to suspend the writ of habeas corpus. "The proposition that the Executive lacks
indefinite wartime detention authority over citizens is consistent with the Founders' general
mistrust of military power permanently at the Executive's disposal," according to Scalia.
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Security Crisis Doesn’t Justify Civil Liberties Violations
41
Security and liberty should also exist in difficult times
Marjorie Cohn, law professor, Thomas Jefferson, 2011, National Security, Civil Liberties, and
the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 364
"The laws and Constitution are designed to survive, and remain in force, in extraordinary
times," Kennedy wrote. "Liberty and security can be reconciled; and in our system they are
reconciled within the framework of the law. The Framers decided that habeas corpus, a
right of first importance, must be a part of that framework, a part of that law." Kennedy
further elaborated: Security subsists, too, in fidelity to freedom's first principles. Chief
among these are freedom from arbitrary and unlawful restraint and the personal liberty that
is secured by adherence to the separation of powers ... . Within the Constitution's
separation-of-powers structure, few exercises of judicial power are as legitimate or as
necessary as the responsibility to hear challenges to the authority of the Executive to
imprison a person.
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Fear Leads to the Loss of Civil Liberties
42
US has exchanged civil rights for security in a time of fear
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 2-3
Though scholars assert that it may be difficult to assess fully the nature of the changes the
United States experienced after September 11, 2001, one conspicuous change is
noteworthy. Specifically, that post 9/11, "America ... shifted from a country that ...
exported its hopes (and so imported the hopes of millions of others) to one that is seen as
exporting its fears." This change developed largely due to the wide-reaching aspects of
heightened national security measures established after 9/11. The swift passage of legal
provisions, such as the Patriot Act, that significantly expand the government's policing and
enforcement powers, is emblematic of Americans' willingness to exchange civil rights for
safety in times of heightened fear.
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Guantanamo Bay Detainees Can’t Get Criminal Trials
43
Funding restrictions prevent the transfer of Gitmo detainees to the US for detention or trial
Ashley Pope, JD, Fordham International Law Journal, February 2011, “After Guantanamo: Legal
Rights of Foreign Entities Held in United States War on Terror,” p. 504-5
Much of the discussion of how to address foreign detainees has revolved around those
detained at Guantanamo Bay. With US President Barack Obama's promised closure of the
Guantanamo Bay detention center more than two years ago, it was thought that many of
those detainees could potentially be moved to the United States. While some would have
been moved in order to face prosecution, it was likely that others would have been
transferred to the United States in order to continue their detention. In December 2010, the
US Congress passed a spending bill prohibiting the use of Department of Defense funds for
the transfer of Guantanamo detainees to the United States, even for prosecution. The bill
also banned the use of such funds to construct or modify existing facilities to hold
Guantanamo detainees in military custody on US soil.
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Obama’s Executive Order Doesn’t Resolve Guantanamo Bay
44
Executive Order does not resolve Guantamo detention issues
Marjorie Cohn, law professor, Thomas Jefferson, 2011, National Security, Civil Liberties, and
the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 413-4
In his first week in office, President Obama issued an Executive Order ending the Guantanamo
detention program by January 22, 2010. It requires that all remaining detentions be subject to
reviews, coordinated by the Attorney General with cooperation and participation from foreign
relations, defense, homeland security, intelligence, and counter-terrorism agencies. Regarding
these detainees, it stays military commission proceedings which have not reached judgment and
bars any new charges from being sworn. Similarly, it requires detainee custody be under humane
standards, described as confirming with "all applicable laws governing such confinement,
including Common Article 3 of the Geneva Conventions." The Secretary of Defense will review
these conditions to ensure full compliance by February 22.
While it is barely a month old and much policy remains to be implemented, the Order disposing
detainees and closing the detention facilities points to elements of anomaly on two fronts.
Specifically, the Order states: 1) it does not create any rights, and 2) detainees may be transferred
to other U.S. detention facilities or third countries. The Order does affirm that these detentions
are governed by the Geneva Conventions and that detainees have the constitutional writ of habeas
corpus. But it does not give any indication whether detainees in Guantanamo or in other locations
have constitutional rights beyond habeas challenges of unlawful detention. For instance, due
process rights are not mentioned. Accordingly, the Order potentially leaves detainees on the base
with district court jurisdiction to claim unlawful detention, but without any clear determination of
what substantive rights do or do not apply to this non-sovereign space. This anomaly is
compounded with the prudential concerns and Constitution-light approaches affirmed by the slim
Boumediene majority.
This anomaly, i.e., unclear state of what rights check detention authority, is reified in the Order's
last subsection. After announcing dramatic changes in detention policy, the Order states it does
not intend to and "does not, create any right or benefit, substantive or procedural, enforceable at
law or in equity ... ." As such in legal terms, the Order leaves things as they were after
Boumediene, but clearly states that no right (procedural, substantive, or in equity) exists to seek
the Order's objectives.
Second, the Order opens the door for detainees to be transferred to locations where Constitutional
habeas and/or other individual rights do not extend. For remaining Guantanamo detainees, it
provides they may be "returned to their home country, released, transferred to a third countryor
transferred to another" U.S. detention facility. Here, the concern is detainees may be relocated to
third countries where they may tortured. Alternatively, they may be placed in U.S. detention
facilities with even less jurisdiction or constitutional rights than Guantanamo. As explained
below, the detention example in Afghanistan has quickly developed.
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Obama’s Exeuctive Order Doesn’t Resolve Guantanamo Bay
45
Executive Order to close Guantanamo Bay did not close it
Erin B. Corcoran, Professor of Law and Director, Social Justice Institute, University of New
Hampshire School of Law, University of New Hampshire Law Review, March 2011, “Obama's
Failed Attempt to Close Gitmo: Why Executive Orders Can't Bring About Systemic Change,” p.
207-8
In the lead up to the 2008 Presidential election, there was broad bipartisan support for closing the
detention facility at Guantanamo Bay. President Bush was quoted as saying, "I'd like it to be over
with." John McCain and General Colin Powell echoed similar sentiments for ending detention at
the naval base. In addition to prominent Republicans calling for closure, public opinion began to
support finding alternative solutions for prisoners held at Guantanamo Bay. Barack Obama
wasted no time once sworn into office executing his central campaign promises. On January 22,
2009, two days after becoming the forty-fourth President of the United States, Obama signed
three executive orders in the presence of sixteen retired admirals and generals in the Oval Office.
These orders (1) suspended military commissions; (2) set a timetable and created procedures to
shut down the Guantanamo Bay detention facility; (3) revoked all existing executive orders that
were inconsistent with U.S. Geneva Convention treaty obligations concerning interrogation of
detained individuals; and (4) created a task force to review U.S. detention policy options and
U.S. interrogation techniques.
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Obama Has Continued Bush’s Policies
46
Obama’s counterterror policies similar to Bush’s
Yung Yin, law professor, Lewis & Clark, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 110-111
It may have taken more than a year to reach a general consensus, but it is now readily
apparent that the Obama Administration is pursuing a counterterrorism strategy that is
broadly consistent with that of the Bush Administration. Differences exist, particularly as
to the legality of certain interrogation methods, but the broad strategy remains largely the
same despite the change in administration.
Obama continuing national security strategies of Bush
Peter Shane, Chair in Law, Ohio State, New York Law School Law Review, 2011/12, “The
Obama Administartion and the Prospects for a Democratic Presidency in a Post-9/11 World,” p.
30-1
Roughly halfway into his first term, however, President Obama--although acknowledging and,
in significant ways, advancing those values--does not seem to have fully articulated a vision of
the presidency that unambiguously turns its back on Bush-Cheney presidentialism. Despite
genuine achievements, for example, in helping to depoliticize the Justice Department and
advancing the cause of government openness, the "big ideas" guiding his conception of the
presidency still seem obscure, even to many supporters. Instead of challenging the operating
ideology of the Bush administration head-on, he has often appeared to offer mainly his
pragmatism as his chief antidote to Bush-era abuses. By pragmatism, I mean the self-conscious
preference for "practical" approaches to addressing problems and challenges, in which strategies
are pursued based on facts, evidence, and structured rational discourse, but which are also largely
accepting of what decisionmakers regard as existing material and political constraints on action.
The epigram on national security policy that heads this essay, from then assistant attorney
general David Kris, seems to capture this mood. To be sure, as compared to the Bush style of
governance, an avowed turn to pragmatism may appear to be no small matter. On a host of issues,
including many that are critically related to U.S. national security in a post-9/11 world, the Bush
administration often seemed driven by ideology uber alles. Conspicuous examples include the
decision to invade Iraq, the actual manner in which the invasion was staged, and the defense of
what everyone in the world except the Bush administration was ready to call "torture." These
issues and many others looked to be all but predetermined by political pre-commitments in a way
that seemed oblivious to the foreseeable consequences on the ground. Compared to, say, invading
Iraq with seeming disregard for the inevitably resulting empowerment of Iran, there is much to be
said for a policymaking approach that actually cares about outcomes. A pragmatic approach to
policymaking, however, can be coherently interpreted only within a substantive set of guiding
values. Pursuing "practical strategies" energetically, while articulating substantive values only
vaguely and occasionally, cannot succeed as an enduring antidote to Bush-style presidentialism.
It cannot have the permeating impact on executive branch behavior that one might seek from a
comprehensive re-articulation of the presidency based on checks and balances, public
accountability, and the rule of law. This is so for two related reasons: First, without a substantive
re-articulation of the presidency, many of the Obama administration's practical responses to
particular problems are susceptible to being understood in presidentialist terms--and thus,
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as legitimating presidentialism of even the Bush-Cheney sort. That is precisely why, despite
very genuine differences between the Obama and Bush presidencies, President Obama's
national security actions are frequently derided (or applauded) as being straightforward
continuations of the prior administration. Second, unless presidential pragmatism is
explicitly, even emphatically, linked to a set of larger beliefs about the role and nature of the
presidency, it is unlikely to be an effective program for re-orienting executive branch behavior
and mobilizing popular support. The actions of both government bureaucrats and voters in
general are shaped by notions of who they are and the values to which they owe allegiance.
"Sensible, balanced outcomes" is too thin and indeterminate a rallying cry to shape the identity of
either citizens or officials in a way likely to redirect our political life. This is especially so when
the dominant presidentialist narrative is so deeply entrenched in other cultural norms.
What I am suggesting here, of course, is not an abandonment of practicality, or a return to rigidly
ideological decisionmaking guided by a different ideology. I mean instead to underscore the
importance for presidential leadership of establishing clearly the substantive values that guide the
Obama administration's pragmatism. When the administration makes controversial decisions,
those decisions ought to be defensible--and publicly defended--within the terms of those larger
values. Any hesitancy, unwillingness, or inability to tie the administration's controversial
decisions to its larger beliefs cannot help but cripple the attempt to position the Obama
presidency as an effective alternative to the "executive power ideologues" it has succeeded.
II. THE DETENTION, TREATMENT, AND TRIAL OF ENEMY COMBATANTS
The most heated separation of powers controversies surrounding the Bush administration
centered on its prosecution of the "War on Terror." At the top of the list were Bush
administration claims that the President could hold enemy combatants at Guantanamo Bay
without judicial review of their detention; that the President could unilaterally interpret the
Geneva Conventions as inapplicable to detainees captured in Afghanistan; that, for alleged
violations of the laws of war, the executive branch could try accused enemy combatants by
military commissions without observing constitutional rights implicated in ordinary prosecutions;
and that the President could authorize harsh interrogation techniques regardless of either
domestic or international law banning torture.
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Indefinite Detention Now
48
Obama supports indefinite detention of Al Qaeda and Taliban fighters
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 453
As President Obama has now surpassed the two-year anniversary of his inauguration, it is
an opportune time to compare his administration's counterterrorism policies with those of
his predecessor. In a different symposium article, I concluded that there are high-level
similarities between the policies of the two presidents. Among the areas of agreement are
the policies that military force is an appropriate (but not the only) tool for responding to al
Qaeda, and that indefinite military detention of suspected al Qaeda and Taliban fighters is
lawful.
3
Obama supports preventive detention
Joseph Marguiles, law proessor, Northwestern, Journal of Criminal Law & Criminology,
Summer 2011, “PREVENTIVE DETENTION: DEVIANCE, RISK, AND LAW:
REFLECTIONS ON THE DEMAND FOR THE PREVENTIVE DETENTION OF
SUSPECTED TERRORISTS,” p. 771
Obama's speech left a powerful impression that his Administration had reclaimed
America's moral standing, ending the abuses of a shameful past and returning to our
foundational principles. Lost in the comforting rhetoric, however, were the policy details,
which included - for the first time in U.S. history - support for a preventive detention
regime. In outlining how his administration would deal with the prisoners at Guantanamo,
Obama divided them into five categories: those who would be prosecuted in federal court,
those who would be prosecuted before military commissions, those who would be released
to their home countries, those who would be repatriated to another country, and those who
would be preventively detained. With respect to the fifth category, he said: Now, finally,
there remains the question of detainees at Guantanamo who cannot be prosecuted yet who
pose a clear danger to the American people. And I have to be honest here - this is the
toughest single issue that we will face. We're going to exhaust every avenue that we have to
prosecute those at Guantanamo who pose a danger to our country. But even when this
process is complete, there may be a number of people who cannot be prosecuted for past
crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat
to the security of the United States... . Let me repeat: I am not going to release individuals
who endanger the American people. In that way, the idea that depriving a person of his
liberty - perhaps for the rest of his life - not because of what he may have done, but because
of what he may yet do, and simply to avoid the risk of an adverse outcome at trial, was
smothered in the reassuring twaddle about American "values."
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Detention Without Charge Now
49
Obama contineues detention without charge
Yung Yin, law professor, Lewis & Clark, 2011, National Security, Civil Liberties, and the War
on Terror, ed. Katherine Darmer and Richard Fybel, p. 108-9
As clearly as he repudiated waterboarding and other forms of coercive interrogation. The
use of missile-firing aerial drones alone proves as much, for such attacks would usually
constitute unjustified force, if not outright murder, in the civilian context. Detention absent
charges, a practice the Obama Administration has carried out at the military bases at
Guantanamo Bay, Cuba, and Bagram Air Base in Afghanistan
200 un-charged detainees in Guantanamo Bay
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 456
Because President Obama has yet to close the detention facility at Guantanamo Bay, there
were still almost two hundred detainees at Camp Delta as of February 2011. Although a
small number of detainees have been designated for prosecution in military courts, most
remain uncharged.
180 individuals remain in custody at Guantanamo Bay
Erin B. Corcoran, Professor of Law and Director, Social Justice Institute, University of New
Hampshire School of Law, University of New Hampshire Law Review, March 2011, “Obama's
Failed Attempt to Close Gitmo: Why Executive Orders Can't Bring About Systemic Change,” p.
213-4
III. Who Remains? The Demographics of the Detainees Languishing at Guantanamo Bay
When Obama signed the executive orders on January 22, 2009, of the 779 prisoners who spent
time at Guantanamo Bay, approximately 242 individuals remained there. Today, approximately
180 individuals remain in custody at Guantanamo Bay.
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25,000 Detained Globally
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US detaines 25,000 individuals world-wide
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 267
Although this paper focuses specifically on the detention of suspected terrorists at the
Guantanamo Bay Detention Camp (Guantanamo Bay), this facility is but one of many
detention centers holding suspected terrorists on behalf of the United States. Today,
approximately 250 prisoners (out of approximately 800) remain at this U.S.-run military
base in Cuba that is outside U.S. legal jurisdiction. However, it is critical to note that these
250 individuals represent a mere 1% of "approximately 25,000 detainees worldwide held
directly or indirectly by or on behalf of the United States." Prisoners have alleged torture,
sexual degradation, religious persecution, and many other specific forms of mistreatment
while being detained. In many detention facilities including Guantanamo Bay, Abu
Ghraib, and Bagram, these allegations are substantiated by significant evidence and have
gained worldwide attention.
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Military Commissions Now
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Obama continues to suppor terror prosecutions in front of military commissions
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 471
President Obama did not disavow the use of military commissions, however, and in the
second half of 2010 his administration successfully prosecuted Ibrahim Ahmed Mahmoud
al-Qosi and Omar Khadr in military courts. Numerous other detainees remain slated for
military prosecution. Of course, the procedural rules in place had changed because of
Congress's enactment of the Military Commissions Act of 2009. Accordingly, the point is
not to suggest here that President Obama has simply replicated President Bush's military
commissions. It is to say that President Obama has apparently agreed that some cases are
appropriately prosecuted in the military system.
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Guantanamo Could Be Shut-Down
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Detaines could be held elsewhere
Tung Yin, law professor, Lewis & Clark, Harvard Journal of Law & Public Policy, Spring 2011,
“ PRESIDENT OBAMA'S FIRST TWO YEARS: A LEGAL REFLECTION: "ANYTHING
BUT BUSH?": THE OBAMA ADMINISTRATION AND GUANTANAMO BAY,” p. 476
On the other hand, the closing of the Guantanamo detention facility--while ending the
perceived excesses of the Bush Administration--would not be inconsistent with continuing
detention of suspected al Qaeda fighters as enemy combatants. Humane detention for
purely preventative incapacitation, with appropriate due process standards to verify the
combatant status of each detainee, could take place anywhere that the detainees are not
exposed to battlefield attack
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Due Process Protections Critical for Anti-Terror Cooperation
53
Effective counter-terror cooperation requires respect for due process
Stephen Schulhofer, law professor, New York University, Journal of Criminal Law &
Crimonology, Spring 2011p. 367-70
In Dearborn, Michigan, which has an Arab-American community of 200,000, law enforcement has
made the maintenance of good police-community relations a "major concern." In other cities,
relations between Muslim-American communities and local police departments are strained. At the
federal level, community outreach has not been ignored, but policy has been dominated by
measures that relax procedural restraints on investigation and detention while expanding
substantive criminal offenses to reach behavior with only tenuous connections to acts of violence.
From the general public to many of our highest officials, it is often considered self-evident that
tougher measures will pay greater dividends. In Britain, in contrast, those who lead the
counterterrorism effort often stress that success depends on building community trust by adhering
to traditional conceptions of due process. In short, no unified approach to counterterrorism policing
has emerged. Instead, officials commonly emphasize intrusive or coercive tactics without
examining their collateral costs, or focus on generating cooperative relationships with Muslim
community leaders while neglecting the character of daily interactions at the grassroots. A central
concern is the need to determine which approaches yield the best results in terms of security. The
available empirical evidence offers stark warnings about the potentially counterproductive effects
of harsh measures. A study of British counterterrorism policies in Northern Ireland found that of six
high-visibility crackdown initiatives, only one had an observable deterrent effect. Two others had
no statistically significant impact, while two intrusive policies were associated with significant
increases in violence. The researchers hypothesized that erroneous arrests and the adoption of
internment without trial contributed to this backlash by undermining the legitimacy of antiterrorism efforts. Similarly, studies have found that perceived injustice on the part of U.S. forces in
Iraq is a strong predictor of support for resistance there. That said, we cannot assume that findings
from ordinary law enforcement will apply in a straightforward way to counterterrorism policing.
Because terrorism is motivated by ideology rather than desire for material gain, co-religionists or
members of the same ethnic community may share some ideological perspectives with those who
plan acts of terror. As a result, law-abiding individuals may be reluctant to put politically radical
members of their communities at risk, even when they themselves oppose violence. In addition,
because al Qaeda invokes religious justifications for its goals and methods, the religiosity of lawabiding Muslims could conceivably alter the importance of procedural justice for securing their
cooperation. Finally, because links between procedural justice and willingness to comply or
cooperate have not been found in all societies, recent Muslim immigrants who have lived under
repressive governments could conceivably have different notions of legitimacy or its importance for
cooperation. To test the links between legitimacy, procedural fairness, and cooperation in
communities impacted by counterterrorism enforcement, we conducted extensive interviews and
random polling of Muslim-American residents of New York City. We found little evidence that
religiosity, cultural differences, or political background play a significant role in determining
willingness to cooperate. The same is true for strength of identification with the Muslim
community; disagreement with American government policies on Iraq, Afghanistan, and Israel; and
instrumental concerns such as a belief that the police are effective.In contrast, as in the case of
conventional law enforcement, we found a strong association between willingness to cooperate with
anti-terrorism policing and perceptions of procedural justice.
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Strong Police-Community Relations Needed to Fight Terrorism
54
Local police relationships with communities critical to fight terrorism
Stephen Schulhofer, law professor, New York University, Journal of Criminal Law &
Crimonology, Spring 2011p. 365-6
These new threats give local law enforcement increased prominence, but its importance is
now acknowledged even in connection with dangers emanating abroad. A recent RAND
Corporation report, drawing from global counterterrorism experiences, notes that terrorism
is largely a policing problem, not a military matter, because local police are best able to
build relationships with the communities in which terrorists try to hide and recruit
members. The report urges police to "actively encourage and cultivate cooperation by
building stronger ties with community leaders ... ." Another RAND report observes that
"state and local law enforcement agencies ... may be uniquely positioned to augment
federal intelligence capabilities by virtue of their presence in nearly every American
community [and] their knowledge of local individuals and groups ... ." These conclusions
are consonant with a broader stream of thought that understands global terrorism as a form
of "insurgency" most easily defeated by winning the loyalty of the communities in which
terrorists may be found. Even in foreign theaters of military operation, heavy firepower,
though still favored by some, is increasingly de-emphasized in favor of at least partial
reliance upon measures akin to domestic policing. Local police thus play a crucial role by
virtue of their familiarity with neighborhoods and their ability to elicit information held
within domestic communities. And with counterterrorism as with policing against
conventional crime, community cooperation is essential if the police are to perform this
role successfully. Moreover, as with traditional policing, cooperation cannot be taken for
granted. Indeed, cooperation may be even more fragile in the context of counterterrorism
than in ordinary law enforcement: Law-abiding members of the relevant community,
though unswervingly loyal to the United States, know that cooperation could mean
exposing people with whom they share close ethnic and religious ties to unusually harsh
procedures and sanctions. Shaping sound policy to navigate these sensibilities is thus
vitally important but exceptionally delicate.
1
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PATRIOT Act Threatens Civil Liberties
55
PATRIOT Act threatens civil liberties
Marjorie Cohn, law professor, Thomas Jefferson School of Law, National Security, Civil
Liberties, and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 74
One month after the terrorist attacks of September 11, 2001, Ashcroft rushed the USA
Patriot Act through a timid Congress. The Act lowered the standards for government
surveillance of telephone and computer communications, and placed in effect, "an FBI
agent behind every mailbox." It created a crime of domestic terrorism targeting political
activists who protest government policies, which was so broadly defined as to include even
environmental and animal rights groups
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Race-Based Detention Now
56
After September 11, many individuals were detained based on their race
Marjorie Cohn, law professor, Thomas Jefferson School of Law, National Security, Civil
Liberties, and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 75
These roundups were evocative of our government's excesses during World War II, when it
interned thousands of Japanese-Americans, in a shameful and racist overreaction. In 1944,
the Supreme Court upheld the legality of the Japanese internment in Korematsu v. United
States. But Justice Robert Jackson warned in his dissent that the ruling would "lie about
like a loaded weapon ready for the hand of any authority that can bring forward a plausible
claim of an urgent need." That day came with the decision of a New York federal judge,
dismissing a case that challenged the detention of hundreds of Arab and Muslim foreign
nationals shortly after 9/11. None was convicted of any crime involving terrorism. U.S.
District Judge John Gleeson ruled in Turkmen v. Ashcroft that the round-up and indefinite
detention of foreign nationals on immigration charges based only on their race, religion or
national origin did not violate equal protection or due process. This is not surprising in light
of the anti-immigrant hysteria sweeping our country today.
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Border Control Threatens Civil Liberties
57
Border control measures threaten civil liberties
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 258-9
Like the effort to tackle crime through the so-called "war on drugs," current immigration
policy relies upon a military metaphor-that of "border security." And like the effort to
tackle crime through the "war on drugs," waging a security war within our borders poses
challenges to traditional criminal procedural protections. But security metaphors have more
potency in the context of immigration than in the context of the war on drugs precisely
because the courts long have analogized congressional and executive power over
immigration with foreign policy and war powers, rather than with domestic social control.
The conflation of immigration enforcement, crime control initiatives and security measures
thus pose an even greater threat to our constitutional order and to human rights. Few
measured benefits have come in exchange for these costs. More troublingly, policy makers
and the general citizenry seem to be content to guess, rather than assess, the costs and
benefits of our immigration policies. In this Article, I have tried to raise some questions
that deserve to be answered before immigration "reform" takes us further down a very
questionable path.
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Immigration Restrictions Threaten Civil Liberties
58
Examples of post-9/11 immigration legislation that threatens civil liberties
Dru Stevenson, Professor of Law, South Texas College of Law, Stanford Law & Policy Review,
2011, “Effect of the National Security Paradigm on Criminal Law,” p. 169-70
After September 11, in 2002, the Immigration and Naturalization Service (INS) ordered
males between the ages of 16 and 45 from specific countries, including but not limited to
Iran, Iraq, Syria, Libya, and Sudan, to report to their local INS office for registration,
fingerprinting, photographing and interviewing. The countries were those that the United
States considered sponsors of terrorism. The use of this special registration ended,
however, after one year. The USA PATRIOT Act allowed law enforcement officers to
detain individuals suspected of terrorism for seven days without charges or initiation of
deportation proceedings. The INS rules allowed detaining individuals for 48 hours without
charges. Shortly after 9/11, the Foreign Terrorist Tracking Forces arrested and detained
hundreds of Middle Eastern and Muslim men, usually without releasing the detainees'
names or whereabouts. The focus was on men of Middle Eastern descent and those from
Muslim countries, because those were the areas suspected of having connections with alQaeda. Many of the men spent days or months in detention, and some eventually faced
deportation. Most faced no criminal charges, but were deported for immigration law
violations or prior criminal convictions. Immigration law became the method to deport
individuals who were allegedly involved in terrorist activity but never charged. Steps taken
to secure the country after 9/11 included a focus on undocumented workers. Another
change occurred after 9/11: state and local police took a more active role in immigration
enforcement, n275 such as checking visas. State and local law enforcement had only rarely
assisted in immigration law enforcement before then, despite Congressional authorization
for their involvement in the late 1990s. In the wake of ineffective anti-terrorism laws,
immigration enforcement became the primary vehicle for incapacitating potential terrorists.
The definition of "national security" stretched beyond prevention of terrorism and into the
prosecution and deportation of common criminals and immigration violators.
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Alien Removal Now
59
Non-citizens removed on national security grounds
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil
Liberties, and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 237
Non-citizens are seldom removed on national security grounds. At the same time, the
government has relied upon "national security justifications to explain the removals of
thousands of non-citizens who pose no demonstrated security risk. This strategy does little
to enhance national security, and undermines the important national security objective of
protecting civil liberties.
Alien removals increasing
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 248
In 2004, ICE completed 202,842 removals of non-citizens from the United States. Of those
removed, 88,897 were classified as "criminal aliens. A total of 1,241,089 foreign nationals
were detained by the Department of Homeland Security (DHS) during the year 2004,
although many of them "voluntarily departed without further proceedings. The year 2004 is
not anomalous; it simply continues a significant upward trend in the detention and removal
of non-citizens, which began in the mid-1990s and accelerated after 2001.
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Alien Removal Now
60
Large resources devoted to removing immigrants
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 258
Vast resources are now expended on removing non-citizens, whether they are security
threats, "criminal aliens or immigration violators. From fiscal year 1993 to fiscal year 2005,
the Border Patrol budget quadrupled from $ 362 million to $ 1.4 billion, with the largest
annual increase taking place after the events of September 11, 2001.Since the creation of
ICE in 2003, the budget for that agency has grown each year, and in fiscal year 2006, ICE's
budget will total $ 3.9 billion in direct appropriations and fees. The expanded "aggravated
felony provisions and related removal provisions, along with the broadened criminal
consequences of immigration violations, also ensure that the federal courts are humming
with criminal immigration cases. Indeed, federal courts are swamped with immigration
cases. Federal appeals courts have seen huge spikes in immigration cases: the circuit courts
of appeals witnessed an increase of 515% between fiscal year 2001 and fiscal year 2004.
Administrative agency appeals to the federal courts grew 12% in fiscal year 2005 to
13,713. The vast majority of those cases involved challenges to Bureau of Immigration
Appeals (BIA) decisions, which increased 14% last year to 12,349. Most of the BIA
appeals were filed in the Ninth Circuit (53%) and the Second Circuit (21%). And of course,
most immigration matters never reach the courts. The expansive efforts to remove certain
non-citizens do not necessarily mean that the government is now prudently choosing to
target the most serious criminal offenders for removal. A close look at the categories of
non-citizens who have been removed raise questions about the degree to which the
enforcement of these laws are actually improving personal security. First, the massive
increase in the category of removable aliens, and the decreased discretion that judges can
exercise in these cases, ensures that governmental resources are expended on expelling
non-citizens who almost certainly do not pose any kind of a threat to the United States.
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Racial Profiling Used in Immigration Enforcement
61
Use of race improved in national security investigations
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 251
In the wake of the September 11th attacks, Attorney General John Ashcroft used the power
of his office to strengthen the ability of the government to rely on the crudest forms of
criminal profiling. He issued Justice Department guidelines on racial profiling expressly
authorizing ICE officials to engage in racial and ethnic profiling, which is formally
prohibited in other federal law enforcement endeavors. Even before those regulatory
changes, racial profiling had become an important component of the law enforcement
response to September 11th. However, in June 2003, with the passage of new guidelines
on racial profiling, the Justice Department formally sanctioned the use of race in the
context of "national security investigations.
Race-based immigration enforcement approved
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 251-2
As a legal matter, race-based immigration enforcement is sanctioned in a way that would
never be permissible in the criminal context. The Supreme Court has often ratified the use
of suspect classifications in the drafting and enforcement of immigration law. Similarly,
courts have long declined to examine the reasons that the government chooses to charge
certain immigration violators and not others. This trend has been reaffirmed in the postSeptember 11, 2001 era. Consequently, non-citizens have had little recourse when race and
ethnicity came to be treated as a proxy for danger.
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Warrantless Searches of Aliens
62
Non-citizens searched without Fourth Amendment protections
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 252
While recognizing certain constitutional protections for non-citizens in criminal
proceedings, the Court has also imposed significant limitations upon these protections. The
Court has sometimes recognized the non-citizen's right to the Fourth Amendment
protections against unreasonable searches and seizures, but has also indicated that the right
only applies to "a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered part of that
community. This language leaves open the possibility that non- citizens can be searched
and detained without Fourth Amendment protections, even in criminal proceedings.
Nevertheless, until recently, when state and federal government officials have subjected a
non-citizen to the criminal law, they have provided those non-citizens with many of the
same protections due to citizens, in spite of their citizenship status.
The increasing reliance on immigration enforcement to achieve security objectives
undercuts these protections. The due process rights available to non- citizens in criminal
proceedings do not extend to removal proceedings. It is true that some form of due process
is required in removal proceedings, but the process is not as protective as the process
guaranteed by the U.S. Constitution to those in criminal proceedings. This is true despite
the apparently punitive nature of certain removal proceedings because the courts have long
maintained a legal distinction between removal and criminal punishment.
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Few Procedural Detention Protections for Immigrants
63
Post 9-11 laws whittled away procedural detention protections for immigrants
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 253-4
In response to the events of September 11th, government officials modified immigration
laws and implementing regulations in ways that further diminish procedural protections in
immigration-related detentions when compared to criminal punishment. Title IV of the
USA PATRIOT Act permits the detention of a non-citizen if there are "reasonable grounds
to believe that the individual may be a threat to national security-in other words, it
countenances arrest on the basis of reasonable suspicion. Such individuals can be held for
seven days prior to the commencement of criminal or removal proceedings, in contrast to
the usual requirement that a person be charged within forty-eight hours of arrest.
Significantly, these procedural shortcuts are not limited to those non-citizens who are under
suspicion of posing a security threat, because arrests can be effectuated by ICE based solely
on reasonable suspicion that an individual is present in violation of the immigration laws.
The law sanctions detentions in such cases for forty-eight hours without charges, longer in
"emergency or other extraordinary circumstances. It also authorizes ICE to conduct
random inspections of public transportation to search for immigration law violators. As
previously noted, profiling on the basis of race, religion and national origin also became an
acceptable method of targeting suspects. Furthermore, immediately after September 11,
2001, individuals detained on immigration related grounds were subject to a "hold until
cleared by the FBI policy that resulted in lengthy detentions, although the legal authority
for such detentions was unclear.
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Immigrants Profiled Based on Race
64
Immigrants subject to racial profiling
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 254
The combination of expansive removal authority and diminished procedural protections for
non-citizens in immigration detention and removal applies only to non-citizens. However,
the effects of these provisions extend to citizens as well. Immigration law, after all, has
played a fundamental role in how race is defined in the United States. One consequence is
that certain groups are viewed as perpetual outsiders. For some, race ensures their
vulnerability to "reasonable suspicions about their immigration status, no matter what their
actual citizenship status might be. Historically contingent notions of who is really a "citizen
and who is an "alien ensure that many Latinos, Asian Americans, Arabs and Muslimscitizens as well as lawful permanent residences, other authorized non-citizens, and the
undocumented-have been and will continue to be subjected to the racial profiling that is
legally sanctioned in the border control context.
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Alien Removal Does Not Improve Security
65
Removal does not improve security
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil
Liberties, and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 254-5
There is at least one additional reason we should worry about the characterization of the
ongoing, mass deportations from the United States as a "security measure: there is no
reason to believe that removal will be an effective security tool. In their 1930 assessment of
British transportation policy, George Rusche and Otto Kircheimer concluded that, as a
penological matter, transportation policy had been a failure. In particular, they noted that
criminals who were transported merely shifted the locus of their criminal activity. To the
extent that any non-citizen deported is actually prone to commit future harms, there is no
reason to believe that removal will alter her willingness to do so. Removal shifts the locus
of the activity, but does nothing to remedy it.
When a person who poses a "national security risk to the United States shifts the locus of
their criminal activity, this does not necessarily increase U.S. security. Such a person can
also engage in acts outside of the United States that threaten U.S. interests. Removing
people who pose security threats to the United States ensures that the government has no
further control over them, but it does not ensure that they are disabled from harming U.S.
interests overseas or domestically.
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Anti-Immigrant Measures Do Not Improve Security
66
Anti-immigration measures do not improve security
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 256-7
In the period leading up to the 1996 legislation, most of the discussions of "security in the
immigration context involved not national security, but the personal security of citizens in
the form of freedom from crime. In the period since September 11, 2001, the rhetoric of
national security has been deployed even when the substance of the discussion rotates
around personal security concerns. It is therefore important to ask whether the massive
increase in the removal of non- citizens serves legitimate criminal law enforcement goals,
regardless of its efficacy (or lack thereof) as a national security strategy. Unfortunately, it
seems unlikely that the present strategy of broadening the categories of "criminal aliens and
increasing law enforcement and immigration enforcement measures aimed at detaining and
removing these "criminal aliens has had much of an impact on crime. It is important to
point out as an initial matter that no empirical studies have been done to substantiate the
links between the increasing criminalization of immigration and decreasing crime.
Interestingly, as deportation is on the rise, violent crime is increasing, not decreasing.
Immigrant groups are not more likely to commit crimes
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 257-8
In spite of the persistent belief that immigrant groups are more likely to commit crime than
the native born, the available evidence suggests that the belief is unfounded. Using data
from the 2000 census, a team of sociologists at U.C. Irvine recently compiled statistics that
demonstrate the significant degree to which reality fails to square with the myth of migrant
criminality. The study found that the incarceration rate of the U.S.-born was 3.51%, while
the incarceration rate of the foreign born was a mere quarter of that, at a rate of 0.86%.
Non-Hispanic, white, native-born U.S. citizens are twice as likely as the foreign born to be
incarcerated, with an incarceration rate of 1.71%. These facts are particularly striking
when one takes into account the upsurge in criminal prosecutions for immigration
violations, which almost always involve the prosecutions of non- citizens. Another striking
finding of the study was that "the lowest incarceration rates among Latin American
immigrants are seen for the least educated groups: Salvadorans and Guatemalans (0.52%)
and Mexicans (0.70%). "These are precisely the groups most stigmatized as 'illegals' in the
public perception and outcry about immigration. The study highlights the dangerous gaps
between public perception and reality, and it is not an outlier. It confirms earlier research
conducted by Robert J. Samspon and colleagues revealing that increased immigration is
actually a major factor associated with lower crime rates, and that Latin American
immigrants were less violent and less likely than second and third generations to commit
crimes even when they lived in dense communities with high poverty rates. Other studies
have reached similar conclusions.
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Criminal Investigations for Terrorists Best
67
Criminal investigations the best way to prevent terrorism on US soil
Jennifer Chacon, law professor, University of California, 2011, National Security, Civil Liberties,
and the War on Terror, ed. Katherine Darmer and Richard Fybel, p. 255
The best way to prevent acts of terrorism against the United States by people present on
U.S. soil is through criminal investigations and detentions of both citizens and non-citizens
alike. Such investigations and detentions are necessarily governed by constitutional
criminal procedural constraints. Of course, such investigations require resources, and many
of those resources are currently allocated to fund the investigation, detention and removal
of non-citizens who have run afoul of the immigration laws in any one of dozens of ways.
Criminal courts more likely to protect rights
Eugene Fidell, Senior Research Scholar in Law and Florence Rogatz Lecturer in Law, Yale Law
School; President, National Institute of Military Justice, New York Law School Law Review,
2011 / 2012, “Ten Years On: Military Justice and Civil Liberties in the Post-9/11 Era,” p. 108110
Many concerns have been expressed about the use of military commissions. Should the strict rules
of evidence apply, as they do in courts-martial? Should evidence obtained by coercion short of
torture be admissible? Should evidence obtained without Miranda nwarnings be admitted? What
restrictions should be imposed on the media in attempting to cover military commission trials? But
one of the biggest issues concerning military commissions relates to the fundamental question of
whether the so-called "high-value detainees"--those directly involved in the 9/11 attacks--should be
prosecuted before a commission in Guantanamo or in the federal courts. The Obama administration
has wrestled with this, offering in 2009 a set of guidelines for distinguishing the two categories of
cases. Attorney General Eric H. Holder, Jr. was widely criticized in 2009 when he announced that
half of the high-value detainees would be tried in the U.S. District Court for the Southern District of
New York. He seemed to recede from this position when local officials in lower Manhattan
objected, and the proposal seemed doomed when New York City Mayor Michael Bloomberg
joined in the objections, citing what seemed to be a wildly inflated cost estimate for courthouse and
lower Manhattan security. It is telling that when Ahmed Khalfan Ghailani was brought from
Guantanamo to the Southern District for a civilian federal trial, the New York Police Department
sought no financial assistance to bolster security around the Foley Square courthouse. In the end,
the high value detainees were slated for military commission trials. What is the civil liberties
interest? Since the Civil War, it had been widely understood that military courts could not be used
to prosecute civilians when the local courts were open and transacting business. The Supreme
Court applied this doctrine to curtail--after the fact--the use of military courts in the then Territory
of Hawaii in 1946 after the threat of Japanese invasion had passed. Trial in federal district
court affords a variety of constitutional protections not known to military
commissions or courts-martial, such as indictment by grand jury and trial by a
randomly drawn twelve-member jury of one's peers. It also guarantees an
independent judge protected by life tenure. In contrast, military commission jurors
are handpicked and the presiding judges lack secure tenure required for judicial
independence.
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Electronic Surveillance Widespread
68
No real limit on surveilliance on electronic communication devices
Susan Freiwald, law professor, San Francisco, Maryland Law Review, 2011, CELL PHONE
LOCATION DATA AND THE FOURTH AMENDMENT: A QUESTION OF LAW, NOT
FACT, p. 681-2
Despite how much we use new communications technologies like e-mail and cell phones,
federal appellate courts have provided little guidance about what the Fourth Amendment
requires of law enforcement agents before they may obtain our electronic communications.
Several factors explain why federal appellate courts have considered so few constitutional
challenges to "online surveillance" practices.To begin with, the Electronic Communications
Privacy Act ("ECPA") furnishes little incentive for defendants to bring statutory claims
against law enforcement acquisition of their electronic communications because the ECPA
provides no exclusionary remedy. To successfully have such evidence excluded from trial,
defendants must establish a Fourth Amendment violation and overcome a good faith
defense. Citing a lack of precedent, courts have refused even to consider Fourth
Amendment questions in some cases after crediting agents' claims that they acted in good
faith. While the lack of precedent will persist until a court issues a decision, that fact alone
has not compelled a court to act. Exacerbating the lack of challenges from defendants who
likely perceive insurmountable odds, executive branch litigators have themselves
strategically avoided appealing cases to preserve the prerogatives that a definitive
constitutional ruling against them would eliminate. The absence of cases from the last
several decades means that when government lawyers do argue that their practices satisfy
Fourth Amendment mandates, they rely on Supreme Court cases from the 1970s and 1980s
that addressed primitive ancestors of the electronic communications technologies in use
today.
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Privacy Expectation in Cell Phone Data
69
People have reasonable expectations of privacy in cell phone location data
Susan Freiwald, law professor, San Francisco, Maryland Law Review, 2011, CELL PHONE
LOCATION DATA AND THE FOURTH AMENDMENT: A QUESTION OF LAW, NOT
FACT, p. 743-4
Most cell phone users would be unpleasantly surprised, if not outraged, to learn that a law
enforcement agent could gain access to their location information without first obtaining a
warrant based on a showing of probable cause. Location data may reveal to law
enforcement agents that a cell phone user has attended an Alcoholics Anonymous meeting,
sought AIDS treatment, or visited an abortion clinic. It may also divulge when and where a
user gave confession, viewed an X-rated movie, or protested at a political rally. Knowledge
that the government could keep track of such information could easily inhibit valuable and
constitutionally protected activities. As I discussed above regarding the inferences one can
draw from location data, as well as the precision that location data has the potential to
yield, fears that location data will provide an intrusive eye onto a target's private activities
are not overblown. Not surprisingly, cell phone users regard access to their location data as
yielding private data about their locations. A research report found that seventy-three
percent of cell phone users surveyed favored "a law that required the police to convince a
judge that a crime has been committed before obtaining [historical] location information
from the cell phone company." Seventy-two percent also supported a law requiring the
police to give notice to the user before the police may obtain historical records of location
data. Both findings demonstrate that most users view their location data as private
information and expect it to remain private absent a compelling need for access. People
surely entertain a subjective expectation of privacy in their location data and would not
expect police to have access to it without first demonstrating a compelling justification to a
reviewing court. As Justice Stevens wrote, perhaps coincidentally in 1984, "As a general
matter, the private citizen is entitled to assume, and in fact does assume, that his
possessions are not infected with concealed electronic devices." For the same reasons that
people expect a law enforcement agent to obtain a warrant from a neutral magistrate before
he may bug their conversations, monitor their phone calls, or subject them to silent video
surveillance, people would surely expect judicial oversight of an agent's use of their cell
phones to track their movements and activities.
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Privacy Expectation in Cell Phone Data
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An expectation of privacy in cell phone data is reasonable
Susan Freiwald, law professor, San Francisco, Maryland Law Review, 2011, CELL PHONE
LOCATION DATA AND THE FOURTH AMENDMENT: A QUESTION OF LAW, NOT
FACT, p. 745
The objective prong of the reasonable expectation of privacy test ultimately requires a court
to make a normative finding about whether users should be entitled to view the object of
the search as private. As Justice Harlan explained in a case decided a few years after Katz,
"The critical question, therefore, is whether under our system of government, as reflected in
the Constitution, we should impose on our citizens the risks of the electronic listener or
observer without at least the protection of a warrant requirement." The critical question in
the location data cases is whether, in our society, law enforcement agents may use cell
phone technology as a window for constant surveillance of our citizens without the
procedural limits imposed by the Fourth Amendment. The answer must be "no." By
analogy, the expectation of privacy users have in their location data should be objectively
reasonable. Just as the Supreme Court recognized in Katz that warrantless government
eavesdropping violated the privacy on which the target "justifiably relied while using the
telephone booth," so too does warrantless access to location data violate the privacy on
which cell phone users justifiably rely while using their cell phones. When describing
government acquisition of telephone conversations as a search under the Fourth
Amendment, the Supreme Court in Katz reasoned that "to read the Constitution more
narrowly is to ignore the vital role that the public telephone has come to play in private
communication." To deny Fourth Amendment protection to location data would similarly
ignore the vital role that mobile telephony has come to play in the lives of the over 290
million subscribers in the United States.
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Cell Phone Data Acquisition Threatens Civil Liberties
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Acquistion of cell phone data is hidden and continuous, increasing the harm and risks of
abuse
Susan Freiwald, law professor, San Francisco, Maryland Law Review, 2011, CELL PHONE
LOCATION DATA AND THE FOURTH AMENDMENT: A QUESTION OF LAW, NOT
FACT, p. 746-7
When agents compel the disclosure of location data, they use a technique that is similarly
hidden, continuous, indiscriminate, and intrusive. Unlike the search of a home, which is
usually subject to view either by the occupant of the home or his neighbors, government
acquisition of location data is hidden. Just as a telephone user does not know when a law
enforcement agent has wiretapped his call, a cell phone user does not know when a law
enforcement agent has acquired his location data. That significantly raises the risk that
agents will exceed the scope of a proper investigation with impunity. In addition,
acquisition of location data is continuous, like the acquisition of telephone conversations
and video surveillance footage. The longer the period an investigation spans, the greater the
likelihood that the government will conduct surveillance without sufficient justification.
Collectted data revelas activities that are irrelevant to the investigation
Susan Freiwald, law professor, San Francisco, Maryland Law Review, 2011, CELL PHONE
LOCATION DATA AND THE FOURTH AMENDMENT: A QUESTION OF LAW, NOT
FACT, p. 747
Besides being hidden and continuous, acquisition of location data is inherently indiscriminate in
that much of such data will not be incriminating but will rather reveal activities that are entirely
unrelated to criminal actions. For example, and as mentioned, the government's application in CSI:
Third Circuit sought location data pertaining to a user upon whom apparently no individualized
suspicion had fallen. As discussed previously, the government has engaged in expansive
acquisitions of location data. The risk of acquiring location information about non-incriminating
activities counsels in favor of substantial judicial oversight to reduce unwarranted invasions of
privacy and to ensure that searches do not become government fishing expeditions. Although it is
possible that a request could be so circumscribed in time and place that the data could turn out to be
unrevealing, agents cannot know that when they request the data initially. In addition, government
agents are unlikely to seek such unrevealing information in the first place. One could go so far as to
argue that agents should obtain a Title III (Wiretap Act) court order before they may compel service
providers to disclose location data. When the federal appellate courts considered the proper
procedural hurdle for law enforcement use of silent video surveillance in locations in which the
subjects held reasonable expectations of privacy, they imposed the substantive requirements of the
Wiretap Act as a matter of Fourth Amendment law because the statute did not apply. Because of
the analogy to silent video surveillance and wiretapping, the minimization, last resort, and other
substantive requirements of Title III orders may be appropriate for location data orders, as well.
Language in the magistrate judges' decision n419 and in a few location data cases involving realtime access suggests that courts are not entirely averse to that approach. Given the difficulty
establishing a warrant requirement, however, it seems unrealistic to imagine that courts will go
further and impose the super-warrant requirement for location data acquisition. But should a
warrant requirement be imposed, as I believe it should, courts will need to recognize that associated
procedural protections, such as notice and redress, will also be necessary.
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More support for the President’s agenda when he works with Congress to get legislation
passed
Erin B. Corcoran, Professor of Law and Director, Social Justice Institute, University of New
Hampshire School of Law, University of New Hampshire Law Review, March 2011, “Obama's
Failed Attempt to Close Gitmo: Why Executive Orders Can't Bring About Systemic Change,” p.
219
So as Congress stymied one of the President's key campaign promises, the same Congress
delivered on some other arguably more controversial issues, such as passing a huge spending bill
to jumpstart the fledgling economy, overhauling health care, repealing the Department of
Defense's "Don't Ask, Don't Tell" policy, and extending tax cuts for the middle class and
unemployment benefits for the jobless. All of these Presidential victories were also hard-fought
victories for Democrats in Congress. The key difference seems to lie in the President's execution
of his campaign promises. When promises were delivered as legislation and not implemented by
fiat, President Obama emerged triumphant. This section provides a brief overview of executive
orders, when they are typically used, and why. This section concludes by arguing that President
Obama would have been more successful in getting closer to closing Guantanamo Bay if he had
enlisted Congress to draft and pass legislation. His greatest misstep was assuming Congress
would rubberstamp his budget request without providing Congress a comprehensive plan and
consulting with the members at the outset. Executive orders are issued to instruct an executive
branch agency on how to carry out legislation. Typically, executive orders "make 'legally binding
pronouncements' in the fields of authority generally conceded to the President." One example is
security classifications. Practically speaking, executive orders are attractive because they are not
subject to congressional debate and vote. They can be issued with ease to respond to national
emergencies like terrorism or natural disasters when immediate action is necessary. Also, they
can be used to make broad policy pronouncements. For President Obama, he was able to mandate
the closure of Guantanamo Bay within days of taking office, thereby demonstrating his
willingness to effectuate change swiftly and confidently. These orders signaled to the democratic
base that Obama was committed to delivering on key campaign promises and was not afraid of
using his inherent power as the President to make things happen. Presidents have also "used
executive orders to make law in areas in which Congress has been silent" and "to carry out orders
of the Supreme Court." These uses by the President have often spurred debate about the
constitutional separation and limitations of the three branches of government.
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War on Terror Undermines US Global Credibility
73
The War on Terror has undermined US legitimacy and authority
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 262
The Global War on Terror has been ideologically framed as a struggle between the
principles of freedom and democracy on the one hand and tyranny and extremism on the
other. Although this war has arguably led to a short-term disruption of terrorist threats
such as al-Qaeda, it has also damaged America's image both at home and abroad.
Throughout the world, there is a growing consensus that America has "a lack of credibility
as a fair and just world leader." The perceived legitimacy of the United States in the War
on Terror is critical because terrorism is not a conventional threat that can surrender or can
be defeated in the traditional sense. Instead, this battle can only be won through
legitimizing the rule of law and undermining the use of terror as a means of political
influence.
Detention and treatment of terror suspects has damaged the legitimacy of the US
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 262-3
Although a variety of political, economic, and security policies have negatively impacted
the perceived legitimacy of the United States, one of the most damaging has been the
detention, treatment, and trial (or in many cases the lack thereof) of suspected terrorists.
While many scholars have raised constitutional questions about the legality of U.S.
detention procedures, this article offers a psychological perspective of legitimacy in the
context of detention.
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Globally, the US is perceived as overreacting to terrorism
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 266-7
Today, many individuals throughout the world question whether the United States has
engaged in excess in response to the attacks of 9/11. A 2004 poll suggests that many people
in France (57%), Germany (49%), and Britain (33%) felt that the United States overreacted
in response to terrorism. Among Middle Eastern countries, as many as three-fourths of
individuals stated that the United States overreacted in the War on Terror. Additionally,
approximately two-thirds of citizens in France, Germany, Turkey, and Pakistan questioned
the sincerity of the United States in the War on Terror. Within the United States,
nationwide confidence in the White House dropped 40% between 2002 and 2004 while
confidence in Congress fell by 25% during this period. Although this worldwide drop in
legitimacy is the result of multiple factors beyond the scope of this paper, such as the U.S.
decision to invade Iraq, detention remains a controversial topic that continues to negatively
affect global perceptions of the United States.
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War on Terror not perceived to be legitimate
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 269-70
IV. Legitimacy: The Critical Missing Element in the War on Terror
In the context of the War on Terror, legitimacy is the critical missing element under the current
U.S. detention regime. Legitimacy can be defined as "a psychological property of an authority,
institution, or social arrangement that leads those connected to it to believe that it is appropriate,
proper, and just." As far back as Plato and Aristotle, philosophers have recognized that
influencing others merely through coercion and power is costly and inefficient. Today, empirical
evidence suggests that legitimacy, rather than deterrence, is primarily what causes individuals to
obey the law. Thus, while legal authorities may possess the immediate power to stop illegal
action, long-term compliance requires that the general public perceives the law to be legitimate.
Terrorism is primarily an ideological war that cannot be won by technology that is more
sophisticated or increased military force. While nations combating terrorism must continue to
address immediate threats by detaining suspected terrorists, they must also consider the
prevention of future threats by analyzing how their policies are perceived by individuals
throughout the world. Ultimately, in the War on Terror, "the benefits to be derived from
maximizing legitimacy are too important to neglect."
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Procedural Fairness Critical to Global Legitimacy
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Protection of procedural fairness is critical to the global legitimacy of the US
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 263
I begin with a discussion of the psychology of terrorism. Next, I argue that the U.S.
response to terrorism has been largely perceived as excessive, which has undermined
global perceptions of U.S. legitimacy. I address this issue by drawing on a well-established
body of social psychology research that proposes "a causal chain in which procedural
fairness leads to perceived legitimacy, which leads to the acceptance of policies." In other
words, the fairness of the procedures through which individuals are detained and tried will
significantly affect the perceived legitimacy of U.S. conduct in the War on Terror. In
contrast to current detention policies, which have largely been implemented in an ad hoc
manner, I suggest that procedural fairness can be increased through the establishment of a
domestic terror court specifically designed to try detainees. Finally, I balance fairness with
the competing values of effectiveness and efficiency to provide a framework through which
U.S. legitimacy in the War on Terror can be enhanced.
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Perceptions of Injustice Increase Terrorism
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Terrorism is driven by perceptions of intolerable injustice
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 263-4
Terrorism can be defined as "politically motivated violence, perpetrated by individuals,
groups, or state-sponsored agents, intended to instill feelings of terror and helplessness in a
population in order to influence decision making and to change behavior." n8 Contrary to
common belief, terrorism cannot be explained by economic deprivation, lack of education,
or increased psychopathology. Instead, "terrorism can best be understood through a focus
on the psychological interpretation of material conditions and the options seen to be
available to overcome perceived injustices, particularly those in the procedures through
which decisions are made." In the context of radical Islamist terrorism, the United States
is viewed as a threat to Islamic identity and culture in a world that is becoming increasingly
secularized and modernized. Though the root structural, motivational, and triggering
causes of terrorism are multifaceted and nuanced, scholars generally agree that acts of
terrorism can be traced back to "perceived intolerable injustice." Fathali M. Moghaddam
conceptualizes the psychological process leading to terrorism as a journey up a narrowing
staircase that culminates in a terrorist act. On the ground floor exists a large group of
individuals who are experiencing injustice and relative deprivation. Consequently, a few of
these individuals begin to climb the staircase in search of solutions. If these individuals are
unable to address their needs through legitimate means, they will experience anger and
frustration that they will seek to displace against those perceived to be responsible. As
individuals climb higher, they begin to see terrorism as a legitimate strategy reflecting
their only means to address injustice. Ultimately, individuals become fully engaged in an
"us versus them" mindset that justifies acts of violence against civilians to further a cause.
In the same way that soldiers depersonalize the enemy, terrorists are instructed to overcome
the inhibitory mechanisms that would normally prevent violence against innocent civilians.
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US Detention Policies Increase Terrorism
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US detention policies spur and do not deter terrorism
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 265
This psychological model for understanding terrorism is critical in responding to
individuals at different points on the hypothetical staircase. The use of criminal law as a
response to terrorism has been widely criticized for addressing individuals only on the top
step who have already committed a terrorist act. In response, the preventive military
detention model originally implemented by the Bush Administration has cast a wide net
over thousands of individuals alleged to have any sort of terrorist connection. Nevertheless,
as former Secretary of Defense Donald Rumsfeld noted, terrorist organizations are
"churning out new terrorists faster than the United States can kill or capture them."
Paradoxically, some research suggests that U.S. detention policies have actually served to
legitimize, rather than deter, extremists. In the next section, I suggest that the United
States has alienated an essential group: the millions of individuals near the bottom of the
staircase who are weighing the legitimacy of terrorist organizations on the one hand against
the legitimacy of U.S. policies in the War on Terror on the other hand.
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US Detention Policies Perceived as Racist
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Muslims view US detention policies as racist
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 266
Consequently, when the current legal framework appears insufficient, the stage is set for
impromptu, crisis-based decision-making. Inevitably, a sort of ad hoc balancing is
substituted in place of formal rules of law leading to excess in the forms of "judgments
based on suspicion and not hard evidence" and the jettisoning of "checks on unilateral
decision making." The internment of over 100,000 Japanese Americans without an
evidentiary basis during World War II is one of the most notorious examples of
governmental overreach in a period of crisis. However, the later congressional
acknowledgement that these "actions were taken without adequate security reasons" and
instead were primarily based on "racial prejudice, wartime hysteria, and a failure of
political leadership" reflects the current sentiment of millions of Muslims towards U.S.
detention policies.
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Guantanamo Bay Undermines US Global Legitimacy
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Guantanamo Bay has undermined US global legitimacy
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 271-2
In the post-World War II era, the United States built up a worldwide reservoir of support
based upon four pillars: "its commitment to international law, its acceptance of consensual
decision-making, its reputation for moderation, and its identification with the preservation
of peace." Although some U.S. policies between 1950 and 2001 did not align with these
pillars, on a whole the United States legitimized itself as a world superpower during this
period. In the 1980s, President Ronald Reagan spoke of America as a "shining city on a
hill," suggesting that it was a model for the nations of the world to look to. While the
United States received a virtually unprecedented outpouring of support from the
international community following 9/11, a nation's reservoir of support will quickly
evaporate when its government overreacts. Across the globe, individuals have expressed a
growing dissatisfaction with U.S. conduct in the War on Terror, and by 2006, even western
allies of the United States lobbied for the immediate closure of Guantanamo Bay, calling it
"an embarrassment." Former Secretary of State Colin Powell proclaimed that "Guantanamo
has become a major, major problem . . . in the way the world perceives America and if it
were up to me I would close Guantanamo not tomorrow but this afternoon . . . ." Similarly,
President Obama noted in his campaign that "Guantanamo has become a recruiting tool for
our enemies." Current U.S. detention policies erode each of the four pillars on which the
United States established global legitimacy. In fact, critics have argued that the "United
States has assumed many of the very features of the 'rogue nations' against which it has
rhetorically--and sometimes literally--done battle over the years." While legitimacy cannot
be regained overnight, the recent election of President Barack Obama presents a critical
opportunity for a re-articulation of U.S. detention policies. Although President Obama
issued an executive order calling for the closure of Guantanamo Bay only two days after
being sworn into office, significant controversy remains about the kind of alternate
detention system that will replace it. In contrast to the current model, which has largely
rendered inefficient decisions based on ad hoc policies, I argue for the establishment of a
domestic terror court (DTC) created specifically to deal with the unique procedural issues
created by a growing number of suspected terrorists.
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Procedural Justice Protections Critical to Global US Legitimacy
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Procedural justice protections critical to legitimacy
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 272-3
V. The Importance of Procedural Justice
In the context of detentions, "the fairness of the procedures" through which the United
States exercises authority is the key element driving both national and international
perceptions of U.S. legitimacy, and legitimacy ultimately determines the extent to which
individuals comply with U.S. policies. Robust empirical evidence has "repeatedly
documented a pattern of correlations consistent with a causal chain in which procedural
fairness leads to perceived legitimacy, which leads to the acceptance of policies." Research
also suggests that procedural justice creates a "willingness to empower legal authorities to
resolve issues of public controversy."An analysis of how procedural justice has been
applied in legal and institutional settings provides a framework for addressing the specific
legitimacy problems associated with Guantanamo Bay and how fair process can be
effectively incorporated into a DTC model. Thirty-five years ago, the formal study of
procedural justice was born when researchers discovered that individuals "care deeply
about the fairness of the process that is used to resolve their encounter or dispute, separate
and apart from their interest in achieving a favorable outcome." This research indicates
that individuals with control over the process (e.g., telling their side of the story, presenting
evidence, and controlling the order and timing of presentation) view the process itself as
fair. This outcome, known as the fair process effect, "is one of the most replicated findings
in the procedural justice literature." A meta-analysis of 120 empirical justice studies
covering a twenty-five year period revealed that procedural justice is highly correlated with
outcome satisfaction (.48), institutional commitment (.57), trust (.61), and evaluation of
authority (.64). These findings indicate the degree of significance that procedural justice
has on individuals. In the legal setting, an exploration of procedural justice in felony cases
revealed that defendants' evaluations of the judicial system did not depend exclusively on
the favorability of sentencing. Even when verdicts involved incarceration and serious
sanctions, litigant evaluations went beyond distributive outcomes to analyze their
perceptions of the procedural fairness of the legal system. Additionally, while judges
handling minor cases believed that litigants would ignore procedural issues when granted
favorable outcomes, litigants' concerns over process led to unanticipated hostilities when
procedural shortcuts were used by the court to resolve cases. Thus, while outcomes cannot
be entirely disregarded, the fairness of the process used to reach a given outcome is critical
to perceptions of legitimacy.
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Proecural Justice Protections Critical in Detention
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Procedural justice critical in the context of detention
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 274-5
Recent research highlights two reasons why procedural justice may be particularly important in
the context of detentions. First, judgments of procedural fairness are particularly important to
individuals experiencing uncertainty. Detainees lack the procedural certainties guaranteed in a
regular criminal proceeding in that they frequently do not know how long they will be held, why
they are being held, what evidence exists against them, and what degree of punishment they may
face. Second, the greater the unfavorableness of the outcome and the larger the potential harm,
the more individuals care about fair process. These findings are reflected in U.S. criminal law
provisions requiring certain elements of procedural due process when serious sanctions are
involved. It is also critical to extend procedural justice judgments beyond the individual detainee
to the perspective of a worldwide audience. While it is easy to overlook how an alleged terrorist
feels about the degree of procedural fairness he or she is receiving, the perceptions of
governments, human rights organizations, political groups (including terrorist organizations), and
millions of individuals (particularly those who closely identify with that individual's race,
religion, or nationality) cannot be ignored. Individuals become upset when they observe
unfairness, and such observations motivate them to help victims of this unfairness. Thus, it would
be a mistake to think that procedural injustice against a single individual will affect the
perceptions of that individual alone. Additionally, efforts to hide procedural injustices, such as
the abuse of detainees by U.S. soldiers, have only backfired by creating sympathy for the types of
individuals that the United States seeks to dehumanize. In the next section, I identify six rules of
procedural justice, evaluate the current detention regime based on these rules, and make
recommendations about how these rules could be implemented in a DTC model.
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Ways to Improve Procedural Justice in Detention
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Procedural justice can be improved in this way –
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 275-6
VI. Applying Procedural Justice to U.S. Detention Policies
While an extensive theoretical review of procedural justice is beyond the scope of this paper, I
use six rules of procedural justice as defined in Beyond Fairness: A Theory of Allocation
Preferences, in analyzing procedural justice under the current detention regime. These rules are
as follows: (1) the consistency rule--allocation procedures should be consistent across persons
and over time; (2) the bias suppression rule--personal self interest in the allocation process should
be prevented; (3) the accuracy rule--decisions must be based on accurate information; (4) the
correctability rule--opportunities must exist to enable decisions to be modified; (5) the
representativeness rule--the allocation process must represent the concerns of all recipients; and
(6) the ethicality rule--allocations must be based on prevailing moral and ethical standards.
An examination of each of these procedural rules reveals a variety of ways in which the
procedural justice accorded detainees can be enhanced. Given the growing nature of terrorism as
a persistent global threat, additional strategic consideration must be given to how these rules will
be applied to a more permanent judicial process for detainees. The DTC model that I propose is a
hybrid court incorporating many of the procedural safeguards of the U.S. criminal justice system
into a model specifically designed to meet the unique challenges posed in trying alleged
terrorists. While other scholars have already laid out the legal framework of the DTC model, I
consider the degree to which this model incorporates the six rules of procedural justice.
Ultimately, the DTC model provides a concrete framework of fair process, while also
maximizing effectiveness and efficiency to a greater extent than either the current U.S. detention
regime or competing detention models.
A. Consistency
The rule of consistency requires that all parties have the same rights and that individuals receive
equal treatment. Consistency over time is also important, and, thus, procedural changes must be
made carefully in a way that puts individuals on notice. Consequently, two defendants
prosecuted with identical evidence should ultimately receive the same outcome regardless of any
differing, but irrelevant, personal characteristics or the timing of the crime. However, the
terrorist attacks of 9/11 shocked the world and instantly changed U.S. policies on terrorism.
While significant steps to increase national security were certainly warranted, a rapid discard of
traditional rules of law undermined the principle of consistency. For example, the "Post-9/11
Immigrant Roundup" in the United States of over 1,200 Arab and Muslim immigrants marked a
dramatic legal change fueled by perceived necessity. In this instance, Attorney General John
Ashcroft "substituted a vague standard for a clear rule in order to justify holding [these
immigrants] without charges for extended periods of time." n100 Under U.S. criminal law, these
individuals would have been charged within twenty-four hours, while the more expansive Patriot
Act allows for a seven-day detention based on reasonable grounds in the belief that an immigrant
is engaged in terrorist activities. However, new regulations permitted many of these individuals
to be held for months. Nevertheless, two years later, an analysis of the roundup by the Michigan
Policy Institute revealed that "we haven't learned anything about pre-empting terrorism in
America, but we have intimidated, antagonized and alienated many (minority) communities . . . ."
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Similarly, the United States sidestepped international laws relating to the detention of prisoners
of war by labeling suspected terrorists as "unlawful enemy combatants." "Until 2001, this term
appeared nowhere in U.S. criminal law, international law, or the law of war," however, it has
subsequently been vaguely construed and applied to hold individuals indefinitely without
charges. An additional consistency problem is that this ambiguous definition would cover Osama
bin Laden, as well as "a 'little old lady in Switzerland who writes checks to what she thinks is a
charity that helps orphans in Afghanistan but really is a front to finance al-Qaeda activities,' and a
person who teaches English to the son of an al-Qaeda member." The principle of equal rights
suggests that individuals suspected of terrorism should be treated in the same manner whether
they are U.S. citizens or citizens of another nation. In Boumediene v. Bush, the U.S. Supreme
Court challenged two previously accepted distinctions that undermine the principle of
consistency. "The first is the distinction between the constitutional rights of American and alien
prisoners; the second is the distinction between the rights of those we imprison on American soil
and those we imprison everywhere else in the world." As a result, the idea that there is "no moral
justification for discriminating against foreigners" in detention procedures is gaining momentum.
However, to some extent this principle has been overshadowed by separate agreements regarding
the treatment of individuals from certain nations. For example, the Attorney General has
promised the British government that its citizens will not face the death penalty. While special
treatment may induce the cooperation of an ally, it does so with an associated cost imposed on
the citizens of other nations. In contrast, efforts by the U.S. Supreme Court to grant habeas
corpus rights to all detainees regardless of citizenship or place of capture enhance perceptions of
consistency.
To further improve perceptions of U.S. consistency, I suggest: (1) that traditional rules of law
may need to be modified, but cannot be abruptly discarded in periods of crisis; (2) a general
uniformity among military commissions must exist as required by the U.S. Supreme Court; and
(3) detainees of different nations, ethnicities, and religions must be given equal treatment and
equal rights. The DTC model addresses each of these three concerns.
First, the DTC model sets a clear standard of consistency in contrast to current ad hoc policies
that have fluctuated in the political winds of this crisis and have been vaguely applied. The DTC
model provides clear definitions and specific criteria for determining who is a threat based on
information that is "(1) reliable; (2) viable; (3) valid; and (4) corroborated." When individuals are
not on notice about how they will be treated, they respond negatively when the law appears to
implicate their conduct without adequate warning. Outside observers such as human rights
groups and citizens of other nations will similarly be dissatisfied by a system that generates
unpredictable results.
Second, the DTC model provides a system of uniformity as required by the U.S. Supreme Court.
In Hamdan v. Rumsfeld, the Court proclaimed the need for a uniform system of courts-martial
and military commission procedures. As a result, procedural rules must be consistent with the
Uniform Code of Military Justice, and rules must be the same between military commissions and
courts-martial "insofar as practicable." The DTC model proposes uniformity in terms of
sentencing as well as procedure. Like the U.S. criminal justice system, the DTC model utilizes
maximum and minimum sentencing terms. Additionally, the DTC model rejects the death penalty
in all cases rather than providing exceptions to the citizens of certain nations.
Third, the DTC model provides the same treatment for citizens and non-citizens. A 2006 poll
suggests that even Americans generally do not feel that their fellow citizens deserve preferential
treatment. Sixty-three percent of respondents indicated that the detention policies should be the
same for citizens and non-citizens, while 33% felt that policies should be different. When
granting U.S. citizens additional rights that are not applied to individuals of other nations, a
tradeoff is clearly being made. One of the fears surrounding U.S. treatment of foreign detainees is
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that other nations will reciprocate by treating U.S. prisoners with disrespect. The application of
standard rights and procedures to similarly situated individuals under the DTC model comports
with universal conceptions of fairness and also enhances the next procedural justice factor: bias
suppression.
B. Bias Suppression
The prevention of favoritism, prejudice, and external bias is a critical aspect of procedural
justice. Two types of biases are: (1) "a vested interest in the outcome" and (2) "reliance on prior
views rather than evidence." To illustrate, a judge conducting the trial of a close family member
has a strong personal interest in the trial's outcome. Similarly, a jury member who believes all
criminal defendants are probably guilty will likely render a biased decision that is not based on
evidence. Perhaps what is most critical to the bias-suppression analysis in the context of
terrorism is the extent to which the deck is stacked against the detainee from the beginning.
Under U.S. criminal law, a defendant can present his or her case to a jury of peers, remove biased
individuals from the jury pool, examine all the evidence presented by the prosecutor, object to
certain forms of prejudicial evidence such as hearsay, cross examine witnesses, and require that
the charges be proved beyond a reasonable doubt. In a detainee's trial, none of these procedural
safeguards exist, and, thus, an important concern arises as to how impartiality can be maintained.
At the start of this analysis, a government must ask itself whether it is willing to let an individual
go if the evidence required for a conviction is not present. For example, one of the questions
surrounding the famous Nuremberg trials of Nazi leaders following World War II was the extent
to which the international tribunal was driven by victor's justice. While many argued for "show
trials" or proceedings that were "not too judicial," others, such as Justice Robert Jackson,
believed that procedural fairness was essential to ultimate victory (in contrast to the punitive
Treaty of Versailles at the end of World War I). Ultimately, the tribunal rendered a wide range of
verdicts from death sentences to acquittals. However, questions yet remain as to whether Justice
Jackson's ideal of fairness was obtained or whether bias nevertheless crept into the system.
Regardless, the Nuremberg trials illustrate that bias suppression demands neutral justice that is
not driven by unbridled retribution, political power, or crisis-based fear. Under the current
detention regime, there appears to be little in the way of procedural guarantees to prevent the
U.S. government from using indefinite detentions to subvert justice. In the event that a detainee is
put on trial, the evidence is evaluated and a decision is reached as to whether that individual will
be held or released. However, when no such trial takes place, the detainee can be held without an
evaluation of the charges or evidence. Such procedures incentivize bias against those detainees
whom the United States speculates are "really bad" but lacks the evidence to convict. Similarly,
during precarious periods there is a subtle motivation to keep all the alleged "bad guys" off the
streets for long enough to turn the tide of the war effort. Perhaps there is also the cynical
viewpoint that even innocent detainees have now mingled with actual terrorists, endured
significant mistreatment, and, thus, now pose a threat to the United States.
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Procedural Transparency Critical to Reverse Perceptions of Racial Bias
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Procedural transparency critical to remove bias against Muslims
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 281-2
One of the biggest challenges that the United States faces in the War on Terror is to effectively
fight terrorism without simultaneously stereotyping millions of individuals associated with
particular religions, nationalities, or ethnic groups. President Obama addressed this issue by
declaring that "the United States is not, and never will be, at war with Islam." He also noted that
America's "partnership with the Muslim world is critical in rolling back a fringe ideology that
people of all faiths reject." These broad policy statements set the right tone for the minimization
of bias in detention trials. Yet, more specific procedural guarantees are needed as a check on the
potential bias of a military system driven by effectiveness rather than justice. A positive step in
removing bias from detentions is increased process transparency. For example, the Department of
Defense has implemented a media-visit program at Guantanamo Bay allowing members of the
media to tour the facilities. More recently, the Department of Defense has even gone so far as to
create a "Virtual Tour" of the Guantanamo Bay facilities. Instead of seeing dark images of
coercion chambers that one might imagine in a secretive detention facility, viewers are greeted
with images of basketball courts, libraries, and medical facilities. This voluntary act was no
doubt "prompted by a desire to avoid an adverse impact on societal perceptions of Guantanamo
Bay's organizational legitimacy." While some evidence relating to detainees is classified and
should not be made available to the public, general information about procedures, living
conditions, and the detainees themselves helps turn conceptions of Guantanamo Bay from a
concentration camp into a more standard prison facility Another way to remove bias from a
system is to introduce checks and balances to govern the process as proposed by the DTC model.
Here, all three branches are involved in the judicial process as the President is given the authority
to nominate DTC judges while the Senate retains the power to confirm them. While current U.S.
detention procedures were originally enacted by the executive branch with little congressional or
judicial oversight, clear rules for each branch of government are laid out by the DTC model. For
example, the executive branch is responsible for setting the criteria for a formal vetting process
used by judges to determine who should be detained. Transparency combined with this system of
checks and balances helps to prevent one branch of government from having too much of a
vested interest in a particular outcome and allows the appointment of qualified judges to make
unbiased judgments based on evidence and not prejudice. By minimizing bias, a major roadblock
to reaching accurate decisions is cleared.
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Procedural Justice Critical to Conviction Accuracy
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Procedural justice critical to protect accuracy in convictions
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 283-4
Accuracy requires that decisions be made using correct information. For example, the U.S.
criminal justice system prevents individuals from being convicted on mere speculation.
Instead, a formal process in which evidence is introduced and testimony is recorded ensures
that an informed decision will ultimately be reached. However, obtaining accurate
information about hundreds of individuals captured all over the globe presents an
overwhelming obstacle to traditional rules of evidence. In contrast, the specialization of the
DTC model makes it well suited to handle classified evidence, confrontation clause
requirements, and other unique evidentiary problems faced in detainee trials. Currently,
evidentiary issues remain a significant problem, as even the somewhat lax standards of
U.S. military tribunals have proved difficult to meet. To date, hundreds of Guantanamo
Bay detainees have been released without charges. In fact, one of the challenges delaying
President Obama's plan to shut down Guantanamo Bay within one year of taking office is
the lack of comprehensive files on detainees. The Obama Administration recently declared
that it plans to charge approximately fifty of the roughly 250 remaining detainees and set
the other 200 free. On the one hand, this broad net is subjecting about four "innocent"
individuals to prolonged detention for every individual that will be tried. On the other hand,
at least some degree of accuracy is eventually being reached in which a large number of
individuals are being set free by the U.S. government. To address the evidentiary problems
involved in prosecuting detainees, the DTC model requires that the judge will wear two
hats: one as the court and the other as defense counsel. The information and the source
must be held to be: (1) reliable; (2) viable; (3) valid; and (4) corroborated. If the
intelligence meets the four-part test, then and only then is it admissible and available for
use against the defendant at trial. However, a defendant's conviction may not be based
solely on confidential intelligence information. Thus, while the DTC model necessarily
allows admission of certain evidence that would not be admitted in a traditional criminal
court, it does so only when this evidence meets specific assurances of accuracy in the eyes
of a judge who is cognizant of the defendant's interests. Yet, since accuracy is never
guaranteed, correctability is the next important element of procedural justice.
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Procedural Fairness Critical to Correctability
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Procedural fairness critical to correctability
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 284-5
Correctability requires the availability of procedures to correct unfair or inaccurate decisions.
n148 The idea of multiple layers of appeal is fundamental to U.S. criminal law. However, the
application of this right to detainees has led to a lengthy foray between the President, Congress,
and the U.S. Supreme Court that only recently appears to have been resolved. The constitutional
concept of habeas corpus requires that a court inquire into the legitimacy of a detainee's custody
and brings up an important correctability issue as to whether only a final outcome (as opposed to
the detention itself) can be appealed. If a detainee must wait to be charged and tried, a
fundamental correctability problem exists when he or she is held for a significant period of time
without legal recourse. A brief overview of the habeas corpus battle begins with a Presidential
Military Order issued on November 13, 2001 by President Bush, asserting that unlawful "enemy
combatants" may be held indefinitely without charges or a court hearing. However, in the 2004
case Hamdi v. Rumsfeld, the U.S. Supreme Court declared that defendants who are U.S. citizens
have a right to habeas corpus protections. This led Congress to enact the Detainee Treatment Act
of 2005 and the Military Commissions Act of 2006, which again stripped the habeas corpus
rights from detainees and asserted that they had no right of appeal. In 2008, the U.S. Supreme
Court fired back in Boumediene v. Bush, holding the Detainee Treatment Act unconstitutional
and declaring that detainees have a right to seek a writ of habeas corpus in U.S. Federal Court.
On January 21, 2009, President Obama affirmed this right of appeal in an executive order. In
Boumediene, the Court overturned the notion "that the Constitution as a whole offers
substantially less protection against American tyranny to foreigners than it does to America's own
citizens." As a result, detainees can now appeal not only the final verdict they receive but also
the government's right to hold them. The seven-year debate described above is itself an important
illustration of the principle of correctability, as each branch of government worked to overturn
the decision of another branch until an appropriate solution was finally reached by all three
branches.
Under the DTC model, detainee appeals are filed directly to the U.S. Court of Appeals. The DTC
model also mirrors certain procedures implemented by Israel and the United Kingdom in which
the classified information holding a detainee is subject to periodic review. This policy ensures
that correctability cannot be side-stepped by indefinite detention. Thus, the justification for an
individual's detention must be continually evaluated and his or her procedural rights cannot be
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War on Terror Violates Civil Rights of Muslim Students
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Four ways the civil rights of Muslim students are violated in the war on terror
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 3-4
In an effort to identify the erosion of individual civil liberties and inform the systemic usurpation
of civil rights for Muslims within institutions of American higher education, Part I of this article
discusses the enforcement of the Patriot Act and its impact on individuals in the Muslim
community to participate fully in the intellectual and academic discourse of new knowledge
construction and dissemination. In particular, the discussion focuses on the Patriot Act's
encroachment on Muslim students and scholars in the following ways: 1) the expansion of
governmental surveillance power under section 217; 2) entrance visas under section 411; 3) the
increased use of National Security Letters (NSLs); 4) FERPA - section 507.
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PATRIOT Act Threatens Civil Rights of Muslim Students
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PATRIOT Act provisions threaten the civil liberties of Muslim students
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 4-6
The Patriot Act sought to eliminate barriers that existed between law enforcement and
intelligence communities, such as the Federal Bureau of Investigation (FBI), Central
Intelligence Agency (CIA), National Security Agency (NSA), and the Department of
Justice (DOJ). Specific provisions were introduced to facilitate communication between the
law enforcement and intelligence communities. Polled just a few months after passage of
the Patriot Act, sixty-two percent of the American public believed Americans would "have
to accept" further restrictions upon their civil liberties in order to prevent terrorism.
While the American public condoned sacrificing civil liberties in the name of security and
expressed support for expanded surveillance, it simultaneously voiced concerns about the
government's snooping and restrictions on civil liberties. Under the threat of a future
attack, the Patriot Act's curtailment of civil liberties seems like a balancing act of legal
redefinition and social practicality. This balancing act hinges upon six factors indicating
when the public will tolerate restrictions in exchange for security. The public tends to
condone restrictions: (i) "when the search or surveillance is not intrusive or the least
restrictive method" available; (ii)"when the perceived threat is great[;]" (iii) "when those
responsible for the search or surveillance are seen as competent[;]" (iv) "when the method
employed is considered effective[;]" (v) "when limiting the search or surveillance to more
relevant suspects might smack of illegal discrimination[;]" and (vi) "when individuals are
unaware that the search or surveillance is taking place." n14 In light of these factors, it is
not necessarily the national security provisions of the Patriot Act that present short and
long-term negative effects for Muslim scholars and students in institutions of higher
education, but rather how the provisions are enforced, the type of evidence needed for
enforcement, and a lack of checks and balances when these provisions are enforced.
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FISA Surveillances threatens Muslim Students
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FISA surveillance provisions threaten the civil liberties of Muslim students
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of
Education at the University of Southern California, Rutgers Race & the Law Review, 2011,
“The Erosion of Civil Rights: Exploring the Effects of the Patriot Act on Muslims in
American Higher Education,” p. 6-7
Section 217 of the Patriot Act expands the government's surveillance power. The government
can intercept communications of a "computer trespasser" carried out on a "protected computer"
without requesting a wiretap, provided the owner or operator of the protected computer gives
authorities permission. Furthermore, law enforcement may search, investigate, and monitor a
"computer trespasser" who accesses a protected computer without authorization. Though a
"computer trespasser" excludes persons who have an existing contractual relationship or are
known by the owner or operator of the protected computer, it may apply to students, faculty, or
visiting scholars who are not enrolled in or working for a college or university, but access the
university's databases. This is likely an unnecessary expansion of governmental powers. Prior to
passage of the Patriot Act, the government already had sufficient ability under Title III of the
Omnibus Crime Control and Safe Streets Act of 1968 ("Title III") and the Foreign Intelligence
Surveillance Act of 1978 (FISA) to conduct criminal and intelligence surveillance while
adequately maintaining First and Fourth Amendment protections. It is unclear how section 217
has been applied in academic settings and its direct ramifications on Muslims or other individuals
given the dearth of documentation regarding specific implementation of this section of the Patriot
Act. Yet, such unfettered governmental access abates the civil liberties afforded to individuals
and has undue negative effects on Muslims in American higher education.
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PATRIOT Act Visa Requirements Threaten Muslim Students
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PATRIOT Act entrance visa requirements threaten Muslim students
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 7-8
In section 411 of the Patriot Act, the federal government grants broad power to exclude
foreigners who, in the government's view, have "used positions of prominence to endorse or
espouse terrorist activity." As such, international scholars and students who, according to the
federal government, fit this description are denied entrance visas. Even when international
scholars and students have previously lived in the U.S., their visas have been revoked. Thus,
strict visa policies have a chilling effect and diminish the ability to freely exchange ideas,
collaborate, and conduct research, particularly with Muslim scholars and international students.
In 2004, Tariq Ramadan, a "prominent Muslim scholar" and a Swiss citizen, was "forced to
resign" from a teaching post he had accepted at the University of Notre Dame after his visa to
enter the United States was revoked. Ramadan later accepted a visiting fellowship at the
University of Oxford. In April of 2007, Riyadh Lafta, a prominent Iraqi professor of medicine at
Al-Mustansiriya University, in Baghdad, was unable to enter the United States to give a longplanned lecture at the University of Washington and to work with colleagues there on a research
project on increased rates of cancer among children in southern Iraq. n26 Mr. Lafta was "one of
the principal authors of an October 2006 study published in the British medical journal The
Lancet" that continues to be a source of controversy because it "estimates that more than 650,000
Iraqis - far more than officially reported - have died because of the American-led invasion." In
2006, a group of Iranian citizens had their visas revoked when they landed in American airports.
n28 They were attending a reunion in Santa Clara, California for the "Sharif University of
Technology, a prestigious institution in Iran." Though President Mahmoud Ahmadinejad's visit to
the U.S. to speak at Columbia University in 2007 provides a rare exception, a multitude of
scholars from or resembling those from the Middle East (or countries in tension with U.S.) has
had their visas denied post-9/11. U.S. authorities regularly cite national security concerns as the
ostensible reason for these visa denials. However, some, like Iranian citizens, have been excluded
most likely due to their governments' political views and policies - in short, they were guilty by
association. In other cases, visa seekers may be denied because they had disagreed with or
criticized the U.S. administration's foreign policies. As stated in a lawsuit filed by the ACLU, the
government appears to be exercising "ideological exclusion[,]" "using the provision[s of the
Patriot Act] broadly to deny entry to people whose political views it disfavors... . "The
government shouldn't be in the business of using laws to censor academic debate in the United
States[.]'" Visa restrictions and changes in the U.S. immigration process after 9/11 are
burdensome, discouraging, sometimes downright humiliating, and negatively affect the numbers
of students coming to study in the United States. A number of issues have emerged which reflect
the negative impact of post-9/11 immigration measures. For instance, inconsistent and arbitrary
procedures at various U.S. embassies and consulates result in unequal treatment of students
depending on their geographical location and nationality/ethnicity/religion. n34 The length of
time a visa is valid and the number of entries allowed by the visa differ from country to country,
subject to each country's agreement with the U.S. n35 Additionally, the validity of a student's
visa and the length of stay in the U.S. authorized by a visa are two distinct notions that both rely
upon mutual accord between the U.S. and the student's country of origin. The matter is further
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complicated by the individual discretion of governmental authorities - only U.S. immigration
officers have the authority to permit one to enter the U.S. The visa application process includes
several fees that are an additional financial burden, particularly for students coming from
developing countries that have a weak exchange rate against the U.S. dollar. The F-l visa
application fee of $ 140 is not reimbursable if the application is denied. The SEVIS n40 fee was
recently doubled to $ 200, effective October 27, 2008, so that the United States Department of
Homeland Security (DHS) could use the additional resources to fund SEVIS. The student may
also encounter other fees to cover administrative and delivery costs depending on what services
and agencies are used.
In one of the few post 9/11 examinations of immigration, Toutant explored the challenges that
post 9/11 F-1 visa policies create for international students and the impact of international
students upon campus culture. Utilizing data derived from interviews of 30 graduate students
(aged 20-39, 12 female and 18 males, from 19 countries), Toutant "links microanalysis to the
broader political context of post 9/11 and globalization." Toutant's findings confirm the
hypothesis that international students from the Middle East and some Asian countries are more
likely to be heavily scrutinized and have greater challenges in obtaining F-1 visas. Students'
nationality and field of study had a significant role in visa determinations. She notes, however,
that the findings likely underrepresent negative experiences with the visa process due to the
study's small sampling relative to the more than 600,000 international students studying in the
U.S. Further, she was unable to incorporate an examination of individual experiences of those
who were unsuccessful in obtaining visas. Toutant's focus group results, however, provide a
number of individual experiences exemplifying the challenges F-1 visas create. For example, a
male student from Iran had to travel to Dubai three times to obtain a visa because there is no U.S.
embassy in Iran. The first time his documents were not complete; he was missing a bank
statement and his I-20 did not specify the teaching assistant position. The student needed Arizona
State University to correctly fill out another I-20 form. This delayed his visa process by one
month. In general, the F-l-visa process for Iranian students can last from two weeks to six
months. For Iranian students, the F-l visa is only a one-entry visa, compared to other international
students whose F-l visas permit multiple entries. Exemplifying the hardships created by singleentry visas, Toutant's work describes the plight of one Iranian student. The student was in the
U.S. for four years and was restricted from travelling outside U.S. borders. If he were to leave the
U.S., he was required to obtain another visa in order to return. Thus, he could not risk returning
home to Iran to visit family because a six-month visa delay would put his research position at
University of California at Los Angeles (UCLA) in jeopardy.
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SEVIS System Threatens Civil Rights of Muslim Students
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SEVIS system threatens the civil rights of Muslim students
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 13-14
When international students and scholars do successfully obtain visas, they then must deal with
the requirements of the Student and Exchange Visitor Information System (SEVIS) enacted after
9/11. SEVIS is an electronic database that is required for all colleges and universities that accept
international students and scholars. n62 SEVIS "collects and maintains pertinent information on
nonimmigrant students and exchange visitors, [their spouses], and the schools and exchange
visitor sponsors that host these individuals in the United States." International students and
visiting scholars are fingerprinted and their names are routinely checked against sophisticated
government databases for possible criminal or other information that may disqualify them. The
federal government requires all male visa applicants between the ages of 16-45 to fill out
additional forms disclosing private information about themselves, their families, and their
activities. Not only are SEVIS requirements difficult to understand, time consuming, and an
intrusion into the private lives of international students and scholars, they also jeopardize the
safety and security of international students and scholars. Despite claims that SEVIS is a secure
database, in 2005, "a hacker broke into a University of Nevada at Las Vegas online database for
... SEVIS and gained access to personal information for about 5,000 current and former
international students and scholars." The stolen information consisted of names, "birth dates,
passport numbers, Social Security numbers[,]" and other sensitive information about the
international students, their spouses, and families. Other universities that have faced similar
problems include University of Kansas, Boston College, and California State University at Chico.
Impact of Section 411 and SEVIS on International Students
Denial of visas for international students and scholars, coupled with issues related to SEVIS, is
costing American institutions of higher education not only in terms of tuition revenues, but also
by "disrupting the flow of the best talent to American universities." This flow of talent is vital to
international, intercultural, and inter-religious dialog directly related to intellectual engagement,
ideological exchange, and our long-term national security. It has been reported that the United
States has become a less appealing destination for foreign scholars. They are disinclined to teach,
conduct research, or attend conferences in the United States because they would rather not
undergo the exacting visa process that many feel is daunting and demeaning. By contrast,
institutions of higher education in countries around the world, such as colleges and universities in
the European Union and Great Britain, are developing new initiatives in order to attract
international students and scholars. For example, former Prime Minister Tony Blair announced
in 2006 that he "set[] a goal of attracting 100,000 more international students to Britain in the
next five years." This number would follow an "increase of 118,000 since Blair announced his
first international-student initiative in 1999." Higher education is one of the few sectors of the
U.S. economy with a favorable trade balance. In this era of globalization and a competitive
economic market, it is in the best interest of American colleges and universities to create and
maintain a welcoming environment for international students and scholars who are highly sought
after by institutions the world over and have a variety of choices in pursuing higher education.
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Visa restrictions after 9/11 and the lack of a national strategy have harmed the U.S. in the global
competition for international students. After 9/11, the number of international students coming to
study in the U.S. declined, and academics urge that this trend must be reversed. In the 2003-2004
academic year, enrollment of international students in American higher education decreased for
the first time since 1949. Compared to the prior academic year, international student enrollment
decreased by 2.4 percent in 2003-2004. Soko Starobin postulates the decrease is primarily a result
of tuition increases at U.S. institutions and changes in the U.S. immigration policy. Further,
Starobin notes the U.S. is facing competition for international students from Australia, the United
Kingdom, Canada, and New Zealand, all of which offer programs that are less expensive and can
be completed in less time. Additionally, these countries have less restrictive entry and work
regulations. Vik Naidoo, however, provides an additional reason for the drop of 2.4% in
international student enrollment in the 2003-2004 academic year. Naidoo claims that the drop
was due not only to visa restrictions, but also to the improvement of education systems in the
students' countries of origin. Other countries are not only strengthening their curriculums to
retain scholars - they are offering English-based instruction. Many states in the European Union,
in addition to Singapore, Doha, and Dubai, have emerged to serve regional markets and provide
education in English. Further inhibiting competitiveness, the U.S. intensive English industry that
often serves as a gateway for foreign students studying in the U.S. is faltering. International
student enrollment in U.S. intensive English programs has declined by almost 50 percent since
2000, due largely to the vastly increased difficulty of obtaining a visa in order to study English in
the United States. The U.S. State Department is aware and concerned about the drop in the
number of foreign students in the U.S. after 9/11. Academics are also raising concern regarding
falling foreign student enrollment and suggesting visa policy adaptations to combat this trend.
Marlene M. Johnson n91 believes that the immigration requirement for international students to
return home after their studies is anachronistic. Further, Johnson asserts that the U.S. leadership
must understand that increasing the number of international students in the U.S. is important to
regain our competitive edge and to keep up with innovation and technology in a global economy.
Adding to the calls for revamped policies, in 2006, The Association of International Educators
("NAFSA") published a report analyzing the U.S.'s faltering position in the competition for
international scholars and advocating specific recommendations for improvement. NAFSA
suggests eliminating the legal requirement for student visa applicants to demonstrate their intent
not to immigrate to the United States, at least for those pursuing degree programs. In addition,
NAFSA proposes several measures it argues will create a more balanced visa system. First,
Congress should return to U.S. consulates the discretion to grant waivers of personal appearance
(interviews) based on risk analysis, subject to Department of State guidance and approval.
Second, the Department of State should require security clearances for scientists ("Mantis"
reviews) only for the most sensitive cases and eliminate them in cases where neither the applicant
nor the applicant's country present concerns. Third, the repetitive processing of frequent visitors
and those who temporarily leave the United States should be eliminated. Finally, overseas
advising centers should be put to better use to facilitate visa reviews. Limiting the number of
visas granted to international students and scholars impedes the benefits brought to institutions of
higher education. More importantly, having international correspondence helps Americans in
understanding the views of the international community about America and Americans. This, in
turn, helps the United States and its citizens to improve communication with the global
community, which better serves our long-term national security. Open communication dispels
myths and misconceptions that exist between groups. Over the past half-century, U.S. foreign
policy leaders have consistently acknowledged that educational exchange is one of our nation's
most valuable foreign policy tools. National security should not unduly infringe upon the civil
rights of individuals attending American colleges and universities; doing so has negative short
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and long-term consequences that displace American colleges and universities as the leading
institutions for teaching, research, and international collaboration. Such foresight calls upon the
federal government to: 1) provide reasonable access to visas; 2) preserve civil rights; and 3) take
measures to better secure the SEVIS database on college and university campuses. Yet protecting
individual civil rights will continue to be a challenge under current the configurations and
enforcement allowed by Section 505.
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National Security Letters threaten Muslim Students
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Use of National Security Letters threaten the civil rights of Muslim students
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 20-1
The use of National Security Letters (NSLs) provides federal law enforcement agencies
seemingly unfettered access to students', professors', and scholars' private educational
records. NSLs allow federal agencies to request information "without prior judicial
approval." Further, NSLs require that, upon FBI request, a person who discloses
information about an NSL ("the Discloser") must provide the name of any person, or
persons, other than the Discloser's attorney, to whom they have made or will make
disclosures. NSLs in this context are an excessive abuse of governmental power essentially, a warrantless search and seizure that is prohibited under the Fourth Amendment
of the United States Constitution. NSLs are also sent to colleges and universities that
operate as Internet-service providers for students, faculty, and staff members. Law
enforcement agencies have used NSLs since their initial authorization as part of the
Electronic Privacy Communication Act of 1986. Section 505 of the Patriot Act, however,
has dramatically expanded their use. In its earlier implementations, NSLs were used to
retrieve information about the targets of a foreign counterintelligence operation. Now,
however, NSLs can be used to retrieve information about anyone deemed relevant to a
terrorist investigation, a provision that is broadly interpreted. In an attempt to assess NSLs
use, the ACLU placed a Freedom of Information Act request that resulted in the production
of documents, including several heavily redacted pages of NSL usage logs covering a span
from October 2001 to January 2003. The Justice Department has rejected as classified
claims for more specific information regarding where the NSLs were used, but the size of
the logs may portend NSL usage in libraries, bookstores, and universities. An FBI internal
audit, conducted as a follow-up to a DOJ investigation of possible NSL abuse, uncovered
that the FBI has potentially violated the law or agency rules more than 1,000 times while
collecting data about domestic phone calls, e-mails, and financial transactions. The 2007
audit covers just ten percent of the FBI's national security investigations since 2002, so the
actual number of violations in the FBI's domestic surveillance efforts may number several
thousand. Despite audits, investigations, and formal records requests, it remains unclear
how extensively government authorities have utilized sections 505, 507, and 217 to solicit
information. It is difficult to extrapolate how widely these sections have been applied and,
consequently, which First Amendment protections remain uncurtailed. In 2004, however, a
U.S. District Court struck down a provision of the law that allows government officials to
demand a wide range of communication records from Internet-service providers and to
forbid recipients of the letters to tell anyone about the orders. The court stated that the
provision violates the privacy of those who use computer networks, including those at
colleges and universities. In his decision, Judge Marrero said the government's demands for
information, made in the form of documents called National Security Letters, violated the
First and Fourth Amendments of the U.S. Constitution. Judge Marrero further stated that
this "exerts an undue coercive effect" on the recipients of the letters. Carol A. BreyCasiano, president of the American Library Association, applauded Marrero's holding that
"use of National Security Letters authorized by Section 505 of the PATRIOT Act
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jeopardizes important First Amendment rights, such as the right to make and receive
speech anonymously via the Internet[.]" In contrast with the public support of Judge
Marrero's legal defense of free speech, institutions of higher education are facing public
backlash provoked by comments like those of a University of New Mexico scholar who
quipped on September 11, 2001, "Anyone who can blow up the Pentagon has my vote."
Similarly, other university scholars have made controversial comments regarding Iraq,
patriotism, and the military. Although these comments may be insensitive and
inappropriate, they are free speech and an expression of academic freedom. The University
of Colorado agreed, stating a professor's controversial comment regarding 9/11 was fully
protected, but later fired the professor, ostensibly because of the intense public scrutiny
sparked by his comments. As student-rights advocates have argued for decades, "free
speech means nothing if it does not include the provocative, unpopular, or even offensive."
Indeed, University of Colorado officials said, "The aggressive pursuit of knowledge cannot
proceed unless scientists, social scientists, and other researchers are permitted - and indeed
encouraged - to present alternative and sometimes heretical positions." In sum, where
academics have made insensitive comments, those controversial comments, however
incendiary and contrarian, open up the possibility of debate about issues, rather than
closing it. The silencing of voices of dissent is academic freedom's most poignant concern.
1. NSLs encroach upon free association of Muslim scholars and students
The nature and method of requesting and producing educational records, Internet records,
and library records through the use of NSLs violates First and Fourth Amendment values,
including the right of free association. NSLs widened application results in the possibility
of these records being reviewed by the government and cited as evidence of ties to terrorist
activity. Consequently, this use of NSLs discourages Muslim faculty and students from
identifying, associating, or assembling as a part of Muslim ummah. For fear of being
associated with terrorist organizations, faculty and students in institutions of higher
education, generally, and Muslim students and faculty specifically, have become reluctant
to participate in certain organizations such as the Muslim Student Association. They avoid
conducting research in areas related to Muslims, other ethnic or racial groups that could
possibly be linked to terrorist activity or contribute (intellectually or financially) to
organizations that, unbeknownst to them, are deemed to be linked to terrorist organizations.
For Muslim students and faculty, their contributions to charitable organizations are also
constrained because donations could be viewed as supporting a terrorist organization,
creating impediments to the performance of a religious duty. The ACLU has documented
the chilling impact on free association. People fear attending mosques because they believe
involvement in Muslim organizations whose records could be obtained by a Section 215
order could mark them for FBI scrutiny. Thus, attendance at some mosques has dropped
by 50%. Many donors who had previously contributed to Muslim charities have stopped
doing so in fear that the government could obtain the charities' records and they would be
falsely accused of supporting terrorism. Community leaders have resigned their posts to
avoid government investigation of their personal records. Organizations on and off campus
that help settle refugees and other immigrants have altered record-keeping practice to
ensure the privacy of sensitive records. For example, records pertaining to political
activities or gender-based violence are no longer maintained to prevent such records from
being obtained by federal authorities and then shared with a foreign government or other
persons who could harm a family member living abroad. As a result, service to students
and clients suffers; Muslim charities and its beneficiaries also suffer, as well as individuals'
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ability to worship, associate, and assemble without fear of governmental scrutiny.
Moreover, it is not simply international students, immigrant Muslims, or those of Middle
Eastern descent who have become more clandestine with their views for fear of being
investigated. Many non-Muslim Americans have altered their behavior, deliberately
avoiding controversial websites or activism in political groups they believe the government
might target for investigation. This concern is not unwarranted, even in academic
environments where academic freedom should protect free association and inquiry. For
instance, in the fall 2002, the administrators at the University of California, San Diego
(UCSD) told a student group that it must shut down its Web site because the site contained
a link to an organization in Colombia that was on the State Department's list of terrorist
organizations. Only after the issue was made public and incited mounting protest did
UCSD's vice chancellor for student affairs back down and apologize for having
overreacted.
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FERPA Amendments Threaten Muslim Students
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PATRIOT Act modifications to the Family Educational Rights and Privacy Act of 1974
(FERPA) threaten Muslim students
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 27-8
Another provision, Section 507 of the Patriot Act, which altered The Family Educational Rights
and Privacy Act of 1974 (FERPA), or the Buckley Amendment, should also be reconsidered due
to its effect on individual civil rights. Section 507 of the Patriot Act authorizes the U.S. Attorney
General to compel colleges and universities to turn over education records pertaining to any
person suspected of "domestic or international terrorism." Arguably sidestepping the Fourth
Amendment, the Patriot Act removes the necessity of probable cause, requiring only specific
articulated facts giving reason to believe that the education records are likely to contain
information relevant to the investigation. This language is so broad that it makes it very easy for
law enforcement officials to obtain education records. The loosened standard for acquiring
academic records is alarming and unnecessary. Intellectual privacy, defined as the protection of
records of our intellectual activities, is essential to the ability to engage in intellectual
exploration. The easy acquisition of academic records threatens a vital piece of intellectual
privacy - that intellectual exploration "be both private and confidential." Law enforcement
authorities have always been able to access academic records necessary for an investigation by
way of subpoena or discovery orders. The loosened standard provided by the Patriot Act does not
improve the government's ability to access records; it simply removes the need for the
government to have a good reason for the intrusion. Ultimately, this loosened standard seems
difficult to justify as a necessary security measure, given there are other means the government
can use to obtain student academic records, provided they demonstrate a compelling need.
The American Association of Collegiate Registrars and Admissions Officers (Association) in
Washington, D.C. reported that immediately after 9/11, the FBI and the Immigration and
Naturalization Service (the "INS") contacted educational institutions - all of which released
information about foreign students to the federal authorities. An Association survey also revealed
that federal authorities had contacted 203 schools and served subpoenas on twenty-two, ordering
the release of student information. The coercive NSL requests have prompted some higher
education institutions to express apprehension about the dilution of FERPA protection. However,
more needs to be done to protect the privacy rights of students and scholars/faculty who fall
under the protection of FERPA.
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PATRIOT Act Threatens Academic Freedom
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PATRIOT Act threatens academic freedom
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 29-30
Attempting to root out terrorists, Congress created a law that has quite specific and
extensive implications for the quality of intellectual and interpersonal engagement and
discourse on college campuses. Clearly, the intent of the Patriot Act was not to serve as a
barrier to educational pursuits and to limit academic freedom and civil rights. Yet, the
Patriot Act's consequences for American higher education and its effect upon the global
community must be considered. The comprehensive erosion of civil rights, beyond
individual protection, can be readily observed within institutions of American higher
education. America's fears, namely Islamophobia, have coalesced into measures that appear
to have a crippling effect on civil rights, and are debilitating to academic freedom in
institutions of higher education. Free speech and association, the most important civil rights
within institutions of higher education, are more aptly considered under the concept of
academic freedom. William Tierney defines academic freedom as "pertaining to the right of
faculty to enjoy considerable autonomy in their research and teaching." Academic freedom,
theoretically, preserves the right for free inquiry and free ideological exchange. This broad
concept of academic freedom creates the context for faculty to freely "pursue and
disseminate knowledge[,]" inherently encompassing a myriad of civil rights.
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Academic Freedom is a Civil Right
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Academic freedom is a civil right
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 30-3
Academic freedom as a civil right: NSLs, free speech, association, inquiry, and ideological
exchange
American colleges and universities pride themselves on their status as leading institutions of
research, teaching, and diversity of ideological exchange. According to a 2009 study, more than
one-third of the world's top 100 universities are located in the United States. As such, many
American colleges and universities rely on global and international collaboration, with
internationally recognized scholars to conduct cutting-edge research, teach across borders, and
promote international student programs that contribute significantly to the institutions' revenue,
the diversity of ideological exchange on campus, and the development of the world's intellectual
talent. The Patriot Act arguably infringes on academic freedom by constraining free speech,
association, inquiry, and ideological exchange of those within higher education institutions by
limiting the ability of international scholars and students to access and interact with American
institutions of higher education. For example, Dr. Adam Habib, one of the best-known political
scientists and public intellectuals in South Africa, was denied entry to the U.S. in October of
2006. Dr. Habib is deputy vice chancellor of the University of Johannesburg and Executive
Director of the Democracy and Governance Programme at the Human Sciences Research Council
(HSRC), the largest research institution in South Africa. He was visiting the U.S. as part of an
official delegation from the HSRC, led by its CEO Olive Shisana, to consult with the World
Bank. His wife was admitted, but officials refused to admit Dr. Habib and offered no explanation.
Dr. Habib has a ten-year visa and has visited the U.S. numerous times over the past decade.
Though he is a practicing Muslim, Dr. Habib is not Arab, Pakistani, or Afghan - he is of Indian
descent. The ACLU is representing Dr. Habib as he files a court action to appeal his visa denial.
Dr. Habib's case is one of many cases of international scholars and students whose denial of visas
and entry into the U.S. has placed a limitation on international and ideological exchange between
American and international scholars. Privacy advocates and librarians have also criticized the
Patriot Act, stating that it chills free inquiry and violates free speech, and hence infringes upon
academic freedom. While Jonathan Cole acknowledges that some scholars have raised concerns
regarding the impact of the Patriot Act on universities, he argues that not nearly enough dissent
has been voiced. Further, research universities' (and academic freedom's) essential role in the
social and economic development of the U.S. needs defending in light of the Patriot Act's impact.
Surprisingly few universities have decried the Patriot Act's impact on academic freedom, a
situation Cole describes as a "near-deafening silence of the expected voices of dissent."
Additionally, academic freedom scholars have voiced disappointment at the absence of sustained
debate regarding the tension between national security and the protection of constitutional
liberties. Cole believes the Patriot Act's provisions "threaten to undermine some of the core
values that universities cannot abandon without significant negative consequences." Cole is
concerned not only about free speech implications (he cites a number of controversies, among
them the Columbia "Mogadishu" comment, discussed earlier in this article), but also about: a)
restrictions on research due to the intensifying scrutiny of research projects that either focus on
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sensitive subjects or are "sensitive but unclassified research"; b) FERPA disclosures of student
records, the uncertain frequency of NSL usage; and c) enhanced restrictions/scrutiny creating
difficulties in obtaining student visas.
Like Cole, William Tierney is also concerned that these criticisms are not a chorus. He calls on
academics to fulfill their responsibility to voice opposition. Tierney states that the Patriot Act's
"deeply troubling" ramifications necessitate this opposition "for the future of academic freedom."
Tierney is troubled by federal officials' ability to collect information with fewer restraints, and
the ease of obtaining court orders for electronic surveillance on campuses. Compounding the
problem is the inability to "track[] its implementation." The Patriot Act is both cloak and dagger,
offering the government a piercing power to intrude on the work of academics - faculty and
students - while swathing the wounds inflicted upon academic freedom in subterfuge. According
to Tierney, the Patriot Act silences unique views and insights by suppressing the rights of
scholars to investigate and understand controversial issues. Further, in its wake, free speech is
made vulnerable. Tierney asserts, "the free exchange of ideas means something entirely different
at the start of the 21st century than it did only a decade ago... . Now more than ever there is a
need for the intellectual to protest against current infringements on academic freedom."
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Academic Freedom Critical to Academic Advancement
104
Academic freedom is vital for free inquiry and scholarship
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 34
Robert O'Neil believes that academic freedom is vital for free inquiry and scholarship,
particularly for professors who experience threats to their freedom of expression.
Moreover, he notes that this necessity is punctuated by the beginning of the new
millennium, describing it "as both the best of times and the worst of times" due to the
examples not only of intrusions, but also of defenses of academic freedom that have arisen.
O'Neil claims that some outspoken scholars have fared well in the aftermath of 9/11.
Specifically, Nicholas De Genova "got a pass" for his "million Mogadishus" remark.
Similarly, Richard Berthold was merely reprimanded for his statement that ""anyone who
bombs the Pentagon gets an A in my book.'" Universities' moderate responses to such
incidents suggest academic freedom is in excellent health. However, he states that other
recent developments indicate a shift in traditional safeguards when ideas that are expressed
in electronic medium paint a less vibrant picture. For example, materials obtained through
Internet searches have not been accorded the same protections scholars take for granted in
library research. Similarly, lesser protections have been applied to electronic messages than
telephonic and paper communications. In light of these trends, O'Neil suggests several
actions to "better protect[] ... academic freedom in the future" and, by consequence,
Muslim scholars and students. Among them are the following: "First, academe should be
substantially more aggressive in seeking legal protection" for academic freedom. Groups
representing universities have been "occupied fending off threatened intrusions and
restrictions," and thus they have had "little time or political capital" to go on the offensive
by advocating countermeasures. An "example of rare initiative" is the Freedom to Read
Protection Act of 2003. The bill would have altered Section 215 of the Patriot Act to
reduce the ability of the government to obtain business records. It "came within one vote of
passage" and its spirit was incorporated into the amendments that improved the Patriot Act
when it was reauthorized in 2005. Second, members of academia "need[] to resist more
vigorously any ... grave threats that arise in the courts," regardless if "only [one] institution
[is] directly affected." O'Neil asserts that Amicus briefs affect legal outcomes. "The need
for better understanding of academic freedom - starting with those who benefit from and
depend most upon it - represents a crucial and vital imperative." Most professors take
academic freedom for granted, according to O'Neil. For those who do so, he admonishes
them to recall "James Madison's wise caution that "it is proper to take alarm at the first
experiment on our liberties.'"
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PATRIOT Act Threatens Civil Liberties
105
Patriot Act restricts free speech, free association, free inquiry, and the free exchange of
ideas of Muslims
Shafiaq Ahmadi, Assistant Professor of Clinical Education at the Rossier School of Education at
the University of Southern California, Rutgers Race & the Law Review, 2011, “The Erosion of
Civil Rights: Exploring the Effects of the Patriot Act on Muslims in American Higher
Education,” p. 50-1
In the current form, the Patriot Act infringes on the experiences of Muslims in American
higher education by restricting free speech, free association, free inquiry, and the free
exchange of ideas. Additionally, the over-enforcement of the Patriot Act may promote 1)
anti-Muslim and Islamophobic acts; 2) increase unlawful searches and seizures; and 3)
foster bias and discrimination in school policy making. As a result, "scholars and scientists
[may] elect to exercise their right to remain silent rather than face the potential resulting
scorn, ridicule, sanctions, and ostracism from challenging shoddy evidence and poor
reasoning on politically sensitive topics." The Patriot Act's encroachment means
universities lose the talent of foreign academics who are unable to come work in the U.S.,
and domestic academics inhibited in their work (i.e. teaching and conducting research), all
of whom have unique and essential intellectual perspectives and opinions. Universities lose
the value that could derive from those collaborations. Out of fear, the right of domestic
students and scholars to freely assemble or associate with Muslim organizations on and off
campus is curtailed. International students would rather attend universities in England or
Australia where they do not have to deal with rules of law such as SEVIS. For American
universities economic revenue is lost and intellectual isolation from global exchange is
increased. Due to the Patriot Act, an entire area of scholarship, particularly on sensitive
topics related to Middle Eastern studies, is also diminished and those who do research,
read, or express themselves are wary of being covertly investigated by the government.
Universities remain perhaps the last sanctuary for the relatively unbridled and unfettered
search for truth, debate, and discovery of new important ideas. "The obligation of those
who seek to protect and advance academic freedom is to focus not only on individual
infringements but also on cultural and social contexts that lead to the weakening of the
ability of individuals to search for this contested concept called "truth.'" Protecting free
speech, free association, free inquiry, and free ideological exchange, will not only preserve
the First Amendment and civil rights within institutions of higher education in the U.S. for
American citizens and legal residents, but will also preserve legitimate global scholarly
exchange for the benefit of American institutions of higher education, faculty and students,
and long-term national security.
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Government Uses States Secrets Privelege
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Government uses the states secrets privelege to prevent review and adjudication of its
counterterrorism policies
Andre Kingman, JD, Suffolk Journal of Trial & Appellate Advocacy, 2011, “STATE SECRETS
ARE A PRIVILEGE, NOT A RIGHT: CAN FOREIGN VICTIMS OF EXTRAORDINARY
RENDITION AND TORTURE OVERCOME THE STATE SECRETS PRIVILEGE USING
THE ALIEN TORT STATUTE?”, p. 119-20
Mohamed's abduction is merely one story among countless others who have suffered similar
treatment since September 11, 2001. That day's events not only fundamentally changed the global
paradigm in which the United States functioned, the events also provoked the Bush
administration and Congress to "take the gloves off" when it came to interrogating terrorist
suspects. Since President Barack Obama's election in November 2008, the United States
aggressively continues to assert the state secrets privilege despite its stated policies to the
contrary. These alterations in domestic and foreign policy, however, have radical and farreaching legal implications that still have yet to be fully realized. The executive branch and the
national security infrastructure, firmly opposed to public scrutiny of its counter-terrorism
operations, have repeatedly asserted the state secrets privilege not to safeguard information vital
to national security, but to prevent plaintiffs from seeking any legal recourse.
Government uses the states secrets privelege to protect national security in the war on
terrorism
Andre Kingman, JD, Suffolk Journal of Trial & Appellate Advocacy, 2011, “STATE SECRETS
ARE A PRIVILEGE, NOT A RIGHT: CAN FOREIGN VICTIMS OF EXTRAORDINARY
RENDITION AND TORTURE OVERCOME THE STATE SECRETS PRIVILEGE USING
THE ALIEN TORT STATUTE?”, p. 138
After the September 11 attacks, the United States drastically increased its counterterrorism
operations, and the state secrets privilege took on a more visible role in the legal field. Instead of
merely asserting the evidentiary privilege when the government was sued, the United States
began proactively intervening in cases where it was not named as a defendant, claiming the
subject of the lawsuit would frustrate and threaten national security measures. While the Obama
administration established policies that theoretically would restrict its assertion of the state
secrets privilege, in practice, it has continued the Bush administration's policies of seeking
dismissal during the pleading stages in cases where both U.S. and foreign nationals were
abducted, detained, and tortured.
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Freedom of Speech Good
107
Freedom of speech is critical to individual self-development
Heath Spong, economics professor, Iowa, NYU Journal of Law & Liberty, 2011, Individuality
and Freedom: From Aesthetic Individualism to a Modern Approach, p. 25-6
Freedom of speech should allow the views and interests of the minority a fair hearing, n58
and to this end the expression of one's own ideas and thoughts should not result in
persecution by the greater public. Mill emphasizes the importance of providing an
individual the opportunity to think and express his own beliefs. Development of the
individual requires an opportunity to follow arguments and lines of thought to whatever
their natural end. Furthermore, Mill is clear that this is not a principle that should be
applied only to some intellectual elite, but instead, it should also benefit even those of
"average" intellect. Mill's utilitarian viewpoint can again be detected in the fact that, to
him, restraints on freedom of expression have significant social implications. He argues
that any such restrictions on the development of intellectual pursuits only serve to stifle
intellectual progress for society.
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Individuality Impacts
108
Individuality is absolute and must always be protected
Heath Spong, economics professor, Iowa, NYU Journal of Law & Liberty, 2011, Individuality
and Freedom: From Aesthetic Individualism to a Modern Approach, p. 30-31
In summary, for Mill a free society is one in which individuality can flourish; wherever
possible, individuality is neither to be constrained nor tampered with. From Mill's
utilitarian perspective, the manifestation of individuality represents a benefit to society.
Demonstrating the influence of Humboldt, the continual development of the individual
herself needs variation of environments. The limits to individuality are to be few, in order
to encourage its growth. Attempts by the state to interfere to the benefit of individuality are
likely to be inappropriate and should therefore be restrained. Individuality is so important
to society that, for Mill, there is no role for moral imposition on men outside of those basic
laws of protection, and there is no rationale that is acceptable for its constraint.
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Executive Orders Fail
109
Guantanamo Bay proves Congress can reverse executive orders
Erin B. Corcoran, Professor of Law and Director, Social Justice Institute, University of New
Hampshire School of Law, University of New Hampshire Law Review, March 2011, “Obama's
Failed Attempt to Close Gitmo: Why Executive Orders Can't Bring About Systemic Change,” p.
209
The world watched in January 2009 as Obama delivered his promise to close Guantanamo
Bay. However, by May 20, 2009, the U.S. Senate, controlled by Democrats, voted ninety to
six to prohibit the use of federal funds "to transfer, release, or incarcerate detainees
detained at Guantanamo Bay, Cuba, to or within the United States." More recently,
Congress, in approving the 2010 Defense Authorization Bill, banned the transfer of
detainees held at Guantanamo Bay to the United States, even for criminal prosecution, and
required that the Secretary of Defense sign off on the transfer of any detainee to a third
country. Despite overwhelming support in the abstract for its closure, congressional
pushback on implementation has stalled efforts to bring the U.S. practice of detaining
individuals at Guantanamo Bay to an end. In particular, the U.S. Senate balked at providing
the President the necessary funds to begin phasing out the Guantanamo Bay detention
facility.
Congress can refuse to fund implementation of executive orders
Erin B. Corcoran, Professor of Law and Directo, Social Justice Institute, University of New
Hampshire School of Law, University of New Hampshire Law Review, March 2011, “Obama's
Failed Attempt to Close Gitmo: Why Executive Orders Can't Bring About Systemic Change,” p.
207-8
The costs of implementing these orders are unclear. However, the President, in his 2010
and 2011 annual budget submissions to Congress, requested additional funding for the
Department of Justice for "activities and expenses related to detainees currently or formerly
detained by the Department of Defense at Guantanamo Bay Naval base or elsewhere." In
addition, the President, in his April 9, 2009 transmittal to Congress for the 2010
supplemental appropriations funding, requested thirty million dollars for the Department of
Justice to support the creation of task forces to review the statuses of the approximately 240
detainees at Guantanamo Bay. Additionally, the President requested fifty million dollars
for the Department of Defense for costs related to trying, transferring, and detaining
individuals. Congress has categorically refused to fund any of these requests. In addition
to causing a standoff between the legislative and executive branches, these executive orders
impacted the judiciary. Several of the detainees' habeas corpus proceedings, which the Su
preme Court had recently ruled detainees were entitled to, were stayed until the task forces
"made a broad assessment of detention policy."
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Supreme Court can overturn executive orders
Erin B. Corcoran, Professor of Law and Director, Social Justice Institute, University of New
Hampshire School of Law, University of New Hampshire Law Review, March 2011, “Obama's
Failed Attempt to Close Gitmo: Why Executive Orders Can't Bring About Systemic Change,” p.
229-30
In certain instances, the judiciary will reign in excessive executive branch actions. During
President Truman's term, the Supreme Court, in Youngstown Sheet & Tube Co. v. Sawyer,
n130 for the first time ever, overturned an executive order in its entirety. President Truman
issued an executive order to take possession of the nation's steel mills during the Korean
War because the unions had threatened to go on strike. Justice Black, writing for the
majority, held that there was no authorization, not constitutionally or statutorily, for
President Truman to issue his order, despite the fact that the country was at war.
Congress can override executive orders
Erin B. Corcoran, Professor of Law and Director, Social Justice Institute, University of New
Hampshire School of Law, University of New Hampshire Law Review, March 2011, “Obama's
Failed Attempt to Close Gitmo: Why Executive Orders Can't Bring About Systemic Change,” p.
230
The other check on excessive executive branch power is Congress. Congress can rewrite laws
that override executive orders, it can withhold funding to the agency charged with carrying out
the order, and it can challenge the order in court. In the case of Guantanamo Bay, while there was
no litigation challenging the President's authority to issue the orders, Congress refused to fund the
agencies charged with implementing the orders, thereby rendering the orders obsolete.
Congress more likely to support and fund legislation than executive orders
Erin B. Corcoran, Professor of Law and Director, Social Justice Institute, University of New
Hampshire School of Law, University of New Hampshire Law Review, March 2011, “Obama's
Failed Attempt to Close Gitmo: Why Executive Orders Can't Bring About Systemic Change,” p.
230
Overall, there are several advantages of using legislation to mobilize systemic change. First, by
having Congress draft legislation, the members are invested in its outcome. Second, by allowing
Congress to author the details, often times the parochial concerns of members can be
accommodated with little contention. Finally, if Congress debates the merits of a plan and votes
to support it, the members are more likely to fund its implementation.
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Controversial decisions do not undermine the Court’s legitimacy
David Welsh, JD, Phd Student, March, 2011, University of New Hampshire Law Review,
“Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on
Perceptions of Global Legitimacy,” p. 270-1
The widespread acceptance of highly controversial decisions by the U.S. Supreme Court
illustrates the power of institutional legitimacy. The Court itself noted that it "cannot buy support
for its decisions by spending money and, except to a minor degree, it cannot independently
coerce obedience to its decrees." "The Court's power lies, rather, in its legitimacy . . . ." For
example, by emphasizing "equal treatment," "honesty and neutrality," "gathering information
before decision making," and "making principled, or rule based, decisions instead of political
decisions," the Court maintained legitimacy through the controversial abortion case Planned
Parenthood of Southeastern Pennsylvania v. Casey in 1992. Thus, although approximately half of
Americans oppose abortion, the vast majority of these individuals give deference to the Court's
ruling on this issue.
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