The "war On Terror" And The Constitution

The “War on Terror” and

The Constitution

The “War on Terror” and

The Constitution

Copyright © 2008 by the Bill of Rights Defense Committee 8 Bridge Street, Suite A, Northampton, MA 01060 www.bordc.org All rights reserved. Written by Nancy Talanian Edited by Nancy Talanian and Amy E. Ferrer Design by Amy E. Ferrer Special thanks to Matthew Fairman, Jeanne Herrick-Stare, Hope Marston, and Lauren Tomkiewicz All photos and images from the public domain.

Contents Introduction  Habeas Corpus   Military Commissions Act (MCA) of 2006  CIA extraordinary rendition program  CIA’s ghost detainees  Supremacy Clause  Detainee Treatment Act (DTA) of 2005 (often referred to as the McCain Torture Amendment)  Executive Order 13440, regarding CIA detainees (2007)  Separation of Powers   Presidential Signing Statements  First Amendment: Freedom of Religion, Speech, Press, Assembly, and Dissent  PATRIOT Act Section 802: Definition of domestic terrorism  PATRIOT Act Section 805: Material support for terrorism  Gag orders (related to PATRIOT Act Section 215 orders and FBI national security letters)  Attorney General’s Guidelines (released May 30, 2002)   Attorney General’s Freedom of Information Act (FOIA) memorandum (October 12, 2001)  Joint Terrorism Task Forces ( JTTFs)  Fourth Amendment: Right to Privacy  National security letters (NSLs) expanded by PATRIOT Act Section 505 (2001) and the Intelligence Authorization Act of 2004  PATRIOT Act Section 203: Authority to share criminal investigative information  PATRIOT Act Section 214: Pen register and trap and trace under Foreign Intelligence Surveillance Act (FISA)  PATRIOT Act Section 206: Roving surveillance authority under FISA (a.k.a. roving wiretaps)  PATRIOT Act Section 213: Authority for delaying notice of the execution of a warrant (a.k.a “sneak and peek”)  PATRIOT Act Section 215: Access to records and other items under FISA  PATRIOT Act Section 218: Foreign intelligence information  PATRIOT Act Section 411: Definitions relating to terrorism  Government databases such as Investigative Data Warehouse  National Security Agency (NSA) warrantless wiretapping  Attorney General’s March 2003 order subverting the 1974 Privacy Act  U.S. Customs and Border Protection (CBP) Policy Regarding Border Search of Information  Fifth Amendment: Due Process, Unlawful Imprisonment, and Self-Incrimination  Attorney General’s approval of a Bureau of Prisons emergency surveillance order  Claims of state secrets to prevent lawsuits from coming to trial  Misuse of material witness law  Sixth Amendment: Rights of the Accused  Combatant Status Review Tribunals (CSRTs) for detainees held at Guantánamo Bay  Creppy Memo  Supreme Court Rulings  Rasul v. Bush (2004)  Hamdi v. Rumsfeld (2004)  Hamdan v. Rumsfeld (2006)  Boumediene v. Bush and Al Odah v. U.S. (2008)  Notes 

1 2 2 2 2 4 4 4 5 5 6 6 6 6 6 8 8 10 10 10 10 10 12 12 12 14 14 14 14 14 16 16 16 16 17 17 17 18 18 18 18 18 20

Introduction The U.S. Constitution was established by the people as a blueprint for a new nation. Signed on September 17, 1788, it imposed the rule of law on the government’s actions. Three years later, on December 15, 1791, the first ten amendments to the Constitution, known as the Bill of Rights, were ratified to protect individual rights such as free speech, privacy, and due process of law. The Constitution and Bill of Rights are strong documents, but they have been compromised many times throughout U.S. history, especially in times of war or other national stress. This is one of those times. President George W. Bush’s assertion that our nation is engaged in a “war on terror” against no specific enemy and with no foreseeable end point has led to permanent legal changes that threaten our individual rights and have diminished the U.S.’s reputation and leadership on human rights. These new laws and policies have upset the balance of power by expanding the authority of the executive branch and weakening the ability of Congress and the courts to oversee the executive branch on behalf of the people. As a result, the executive branch has squandered its national security resources, prying into the lives of many innocent people and denying them their constitutional rights. We now have substantial proof that human failures within our government, not the laws and policies in place prior to September 11, 2001, failed to prevent the terrorist attacks on that day.1, 2, 3 Furthermore, no proof has yet been offered to substantiate executive branch assertions that new laws and policies, including the USA PATRIOT Act, the Military Commissions Act, and the executive branch’s use of torture in interrogations, have made our country more safe. There has been, in fact, evidence to the contrary. Americans familiar with the government’s pattern of weakening constitutional protections reacted swiftly to the passage in October 2001 of the USA PATRIOT Act and the indiscriminate roundup of thousands of Arab, Muslim, and South Asian immigrant men. Community coalitions formed in every U.S. state and the District of Columbia to demand that their local governments and state legislatures uphold their constitutional rights even if federal laws and policies authorize violation of those rights. To date, eight state legislatures and more than 400 local governments have enacted resolutions and ordinances asserting their residents’ constitutional rights and liberties. Today, the 220th anniversary of the U.S. Constitution, we have substantial evidence that new laws and policies have ruined lives of some and have secretly diminished the liberties of many or most of us. This booklet summarizes key laws and policies, how they can affect us and our communities, and how they have already been used to deny members of our society their constitutional rights. We offer this information confident that it will provide a solid foundation for those who are willing to fight for the restoration of our Constitution. Nancy Talanian Bill of Rights Defense Committee September 17, 2008

1

Habeas Corpus

Article I, Section 9 of the United States Constitution “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas corpus is the right of any person to challenge the basis for his or her detention before an impartial judge. The Writ of Habeas Corpus was suspended during the Civil War, when President Lincoln instituted military courts for Northerners who sympathized with those from the South. After the Civil War the Supreme Court ruled against Lincoln’s suspension of habeas corpus (in the case Ex Parte Milligan), holding that the suspension of habeas corpus did not include the use of military courts if civilian courts were open. Title or Provision Military Commissions Act (MCA) of 20064, 5

What It Says/What it Changes Codified the President’s authority (which President Bush assumed in 2001) to designate anyone, including a U.S. citizen, as an “unlawful enemy combatant” if the president determines that the person provided material support for terrorism to those engaged in hostilities against the U.S. Deprives non-citizens held at Guantánamo Bay deemed to be “enemy combatants” of the right to bring a habeas corpus action in civilian courts. Instead, these individuals must pursue their release through a setup at Guantánamo Bay prison called Combatant Status Review Tribunals (CSRTs). In these CSRTs, each “enemy combatant” in U.S. custody is pre-judged as guilty without trial, violating the Fifth Amendment protections of due process and the Sixth Amendment right to a speedy and public trial by an impartial jury of peers.

Allows coerced testimony, such as confessions acquired using torture, to be used as evidence. The Eighth Amendment states that “cruel and unusual punishment [shall not be] inflicted.” Gives amnesty for U.S. employees, soldiers, officials, and contractors who committed crimes involving the detention and interrogation of “aliens” between September 11, 2001, and December 30, 2005. Many U.S. commanders, officials, employees, and soldiers who have committed, enabled, or sanctioned torture will now go unpunished. Prevents persons harmed by the U.S. (in violation of the Geneva Conventions) from filing claims in U.S. court.

2

CIA extraordinary rendition program6

“Extraordinary rendition” is the process by which the United States abducts and transports terrorism suspects to foreign countries that practice torture during interrogation and indefinite detention. Those rendered have no communication with the outside world and no opportunity to challenge the lawfulness of their detention before an impartial judge.

CIA’s ghost detainees7

“Ghost detainees” are individuals arrested by the U.S., held secretly on suspicion of terrorism, and interrogated by the CIA or a foreign country. These include detainees held in secret CIA prisons called “black sites,” such as a ship off the coast of Diego Garcia. There is no accountability for these detention centers. Twelve days before the Bush administration claimed to have closed down its secret CIA sites, there were still 14,000 anonymous prisoners at Bagram Air Force Base and other detention facilities.

Four Britons denied right to sue Pentagon for their torture. Well over half of the more than 700 men who have been detained at Guantánamo Bay have been freed and returned to their home countries without charges, often after several years of separation from their families and society during which they endured detention, harsh interrogations, and torture.

How It Can Affect You Deprives U.S. residents of First Amendment protection for freedom of association, even for membership in an organization later designated a terrorist organization by the Secretary of State (See PATRIOT Act Section 411 on page 14.) The denial of habeas corpus affects all non-U.S. citizens, including legal U.S. residents, detained since September 11, 2001. The U.S. government’s failure to differentiate between terrorists and innocent people sets a poor standard for other countries and endangers U.S. travelers and soldiers in harm’s way, who may experience similar treatment. Many in the military, including former Judge Advocates General, oppose this legislation and the CSRTs because they place U.S. soldiers at risk. The U.S. government’s lowering of standards for admissible evidence increases the likelihood that other countries will follow suit when trying U.S. citizens and members of the military. Denying justice to those who suffered ill-treatment at the hands of Americans lowers our country’s stature in the world, angers anyone who associates with innocent victims of abuse, and serves as a terrorist recruitment tool that increases the likelihood of future attempts at terrorist attacks. It also allows war criminals to return to our communities without being tried for their crimes. Other countries may follow the precedent set by the U.S. in kidnapping anyone anywhere in the world and subjecting them to torture. Victims of rendition held in secret prisons may never be found. The program is counterproductive because it inflames the violent organizations the U.S. is seeking to thwart. Sets a precedent for more widespread detention and “disappearance” of individuals without due process.

On January 11, 2008, a U.S. appeals court ruled that four British citizens who had been held for more than two years at Guantánamo cannot sue the Pentagon.8

Jose Padilla, a U.S. citizen “enemy combatant.” Arrested on U.S. soil and described as a “dirty bomber,” Padilla was held in a North Carolina detention center without charge or trial for three and a half years. The Supreme Court was days away from considering Padilla’s challenge to unchecked presidential power when the Bush administration suddenly brought criminal charges and dropped all of the “dirty bomb” accusations.9

David Hicks, first defendant in a Guantánamo tribunal. After more than five years at Guantánamo, Hicks was tried for material support for terrorism, conspiracy to commit war crimes, and aiding the enemy. He was sentenced to seven years in prison. His sentence was reduced to nine months in Adelaide Prison in Australia, near his home. Hicks is now free and living in Sydney but was under a gag order to remain silent about his treatment for one year, until March 30, 2008.10

Canadian Maher Arar rendered to Syria and tortured. In 2002, Maher Arar was returning home to Toronto from a family vacation. Before catching his connecting flight at New York’s JFK airport, Arar was detained, then deported to Syria, where he was held and tortured. After nearly a year, Arar was returned to Canada without charges. At press time, the Bush administration had not apologized to Arar. A federal Court of Appeals that initially upheld a lower court’s denial of Arar’s suit against U.S. officials reversed its decision in August 2008 and decided to review the suit more closely.11

3

Supremacy Clause

Article VI, Paragraph 2 of the United States Constitution “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Title or Provision Detainee Treatment Act (DTA) of 2005 (often referred to as the McCain Torture Amendment)12

What It Says/What It Changes Limits the treatment of military detainees to those techniques in the Army Field Manual on Intelligence Interrogation. The DTA of 2005 reiterates the protections in the Fifth, Eighth, and Fourteenth Amendments as well as the Third Geneva Convention Against Torture (which the United States ratified) for all detainees interrogated in Defense Department facilities or while in U.S. military custody. Although the DTA clearly states the type of treatment that is permissible, the President issued a signing statement that many have interpreted to indicate his reluctance to fully enforce the DTA. (See Presidential Signing Statements on page 5.)

Executive Order 13440, regarding CIA detainees (2007)13

President George W. Bush’s executive order bans cruel and inhumane treatment of detainees held by the CIA without explicitly stating which interrogation techniques are allowed. Waterboarding and so-called “stress positions,” for example, may be permitted. The executive order continues to allow secret detention of prisoners. Such confinement will subject detainees to potential abuse with no recourse.

Ahmed Omar Abu Ali’s testimony, obtained through torture, was permitted in his trial, where he was accused of bringing al-Qaeda members to the U.S. and plotting to kill President Bush. Abu Ali was found guilty in November 2005. The Fourth Circuit Court of Appeals, which heard his challenge to the admissibility of a confession elicited through torture, deemed the confession voluntary and upheld his conviction but overturned his 30-year prison term and ordered a new sentencing hearing.14

4

How It Can Affect You The U.S. and other countries ratified international treaties such as the Third Geneva Convention, which bars cruel, inhuman, and degrading treatment, to reduce the danger of their citizens suffering such treatment. By violating these treaties, the U.S. government puts its own citizens and our servicemen and women at greater risk of suffering cruel treatment if they should fall into the hands of an enemy.

The government can use coerced testimony to implicate anyone, including your friends, loved ones, or your organization, in a terrorism investigation.

Ali al-Marri, “enemy combatant.” Al-Marri is a Saudi citizen who in 2001 was studying computer science in Peoria, Illinois. He was arrested and held as an enemy combatant with no further contact with his family. Al-Marri was threatened and deprived of sensory input during long months in a military brig. On June 11, 2007, a federal appeals court ordered al-Marri released. “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution and the country,” wrote Judge Diana Gribbon Motz, Fourth Circuit Judge. The case is on government appeal.15

Separation of Powers

Article I of the United States Constitution Article I of the United States Constitution states that “all legislative Powers herein granted shall be vested in a Congress of the United States.” Checks and balances exist through the powers that each branch has to limit the powers of the other two branches of government. For example, Article I, Section 7, Clause 2 states that “every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return [veto] it…”

Title or Provision Presidential Signing Statements16, 17

What It Says/What It Changes

How It Can Affect You

Presidents have long used signing statements to clarify their understandings of statutes. President George W. Bush went further than any previous president; 78 percent of his signing statements have raised constitutional objections, far more than any previous president. Moreover, George Bush’s signing statements often raised multiple constitutional challenges; as of late 2007, his statements had challenged more than 1,000 individual provisions of law. The signing statements modify the meaning of legislation that Congress properly enacted, often because Bush believed the law does not take executive power into account:

The American people cannot rely on the Executive Branch to faithfully execute laws properly enacted by Congress for the people’s benefit. These signing statements do not clarify the law: They make it more ambiguous by asserting that the president retains the power to interpret the law as he sees fit. This undermines the balance of power, so that U.S. residents can no longer rely on written law to protect them from the whims of the executive.

• In his signing statement to the Reauthorization of the PATRIOT Act, President Bush stated he would not report abuses of the act, as the act itself required. • In the signing statement for the Detainee Treatment Act, Bush stated, “The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President…as Commander in Chief.” In so doing, President Bush effectively claimed his presidential authority allowed him to ignore the prohibition on torture.

5

First Amendment: Freedom of Religion, Speech, Press, Assembly, and Dissent “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Title or Provision

What It Says/What It Changes

PATRIOT Act Section 802: Definition of domestic terrorism18

Creates a new crime, “domestic terrorism,” which it defines as “acts dangerous to human life that are a violation of the criminal laws of the United States or of any State” and that “appear to be intended…to influence the policy of a government by intimidation or coercion.”

PATRIOT Act Section 805: Material support for terrorism19

This section criminalizes providing money to terrorist organizations. It also criminalizes providing “expert advice or assistance.” The Intelligence Reform and Terror Prevention Act of 2004 attempted to resolve complaints that the statute is “unconstitutionally vague.” For example, it added a requirement that the government must prove that assistance was provided knowing that the organization had been designated as a “foreign terrorist organization” or that the organization had been involved in international terrorism. However, many find the amended statute still to be vague. (See also PATRIOT Act Section 411 on page 14.) The Ninth Circuit Court of Appeals has issued an injunction preventing the government from bringing prosecutions within the Ninth Circuit for giving “expert advice or assistance.” However, elsewhere in the country people may still be prosecuted under this broad definition of material support for terrorism.

Gag orders (related to PATRIOT Act Section 215 orders and FBI national security letters)20, 21

Prevents anyone who receives an order, such as a national security letter (NSL), to produce records or “tangible things” from disclosing the order to anyone but an attorney and the person required to retrieve the requested items.

Attorney General’s Guidelines (released May 30, 2002) 22, 23

Rescinds anti-COINTELPRO regulations and authorizes the FBI to monitor and conduct surveillance of religious and political groups without evidence of wrongdoing.

Amendments passed in the 2006 Reauthorization of the PATRIOT Act permit recipients to appeal the gag order after a wait of one year. However, the amendments are so heavily weighted in favor of the administration that they are unlikely to have any practical effect.

Policy guidelines have been adopted by local law enforcement. These guidelines have been interpreted by local law enforcement Intelligence Projects to allow them to monitor religious and political groups when there is “reasonable suspicion” of criminal conduct. Some local agencies have interpreted “reasonable suspicion” of criminal conduct widely enough to monitor many peaceful protest groups or political action groups. Also violates the Fourth Amendment by avoiding warrants issued upon “probable cause” and the Fifth Amendment by causing the unsuspecting participant in a religious or political meeting to be “compelled to be a witness against himself.”

6

How It Can Affect You The broad definition of domestic terrorism may be used against activists exercising their rights to assemble and to dissent, including environmental and animal rights activists as well as anti-abortion movements. This section has been used to interfere with legitimate associations between persons. If you make donations to charitable organizations and one of the organizations is someday named a “terrorist organization,” you may be prosecuted under this provision and deported if you are not a U.S. citizen.

Covers up government abuses of powers. Requires business people and others who receive orders for information to carry the secret to their graves or risk fines and imprisonment.

Opens the door to COINTELPRO operations: government spying, disruption, and infiltration, which were used in the past to harass and intimidate people who exercised free speech and the right to assemble while protesting the Vietnam War and demanding civil rights. Knowledge that a meeting may be infiltrated by the FBI or undercover law enforcement has a “chilling effect” on attendance and on people’s willingness to speak. Agents attending meetings as agents provocateur sometimes urge peaceful antiwar groups to use violence. Although few if any groups succumb to their urgings, their presence at meetings may hamper recruiting as new prospects may assume the agent is a bona fide group member and may stay away from the group as a result.

Lackawanna Six pled guilty to material support. The administration has used material support as a last resort when it has been unable to prove that a terrorism suspect has engaged in any wrongdoing. Many defendants have pled guilty to the charge, sometimes under coercion. Attorneys for the “Lackawanna Six,” a group of six U.S. citizens of Yemeni descent who prosecutors say were awaiting orders from alQaeda to carry out a terrorist attack in the U.S., maintain their clients were innocent. However, the attorneys advised the young men to plead guilty in order to avoid the administration’s threat that if they did not do so, they would be imprisoned as enemy combatants.24

Sami Omar al-Hussayen acquitted of material support. Sami al-Hussayen was a doctoral student from Saudi Arabia who was studying at the University of Idaho. He was charged with material support, specifically for managing websites that funneled money to alleged terrorists. The jury, however, found al-Hussayen’s assistance to friends operating websites to be First Amendment-protected free speech and therefore acquitted him. After 17 months in Idaho jails before and during the trial, al-Hussayen was deported to Saudi Arabia. He now lives in Riyadh with his wife and children.25

Antiwar group Peace Fresno was infiltrated by the FBI for two years. Aaron Kilner, the Joint Terrorism Task Force (see page 8) agent who spied on the group’s regular meetings, was killed in a motorcycle accident in 2003, and his obituary photo alerted Peace Fresno group members to the fact they had a government agent in their meetings. Requests were filed with the FBI for records of the infiltration effort. Fresno County Sheriff Richard Pierce admitted in March 2006 that he had placed an agent in the peace group to gather information. However, under a deal reached with the state attorney general, Bill Lockyer, no information from that investigation will be released.26

7

First Amendment: Freedom of Religion, Speech, Press, Assembly, and Dissent 

Title or Provision

What It Says/What It Changes

Attorney General’s Freedom of Information Act (FOIA) memorandum (October 12, 2001)27

Replaced Attorney General Janet Reno’s previous guidelines to agencies for fulfilling FOIA requests, which were to allow discretionary disclosures of information, except where there was “demonstrable harm.” Attorney General John Ashcroft assured agencies that if they “decide to withhold records, in whole or in part,” they “can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”

(continued)

How It Can Affect You Enables federal agencies to ignore many FOIA requests for unclassified information, such as whether your private records are stored in a government database or why you are on a “no-fly list.”

In 2008, President Bush signed the OPEN Government Act law. Unfortunately, Bush did away with the Office of Government Information Services, the ombudsman’s position established by the law, which would have mediated disputes between the government and people requesting information. Instead, he diverted the responsibility to the Department of Justice, which defends the government agencies that withhold information.28 Joint Terrorism Task Forces ( JTTFs)29

Joint Terrorism Task Forces, which have existed since 1980 but have become much more prevalent during the “war on terror,” are law enforcement units that use an interagency approach to investigating terrorism. In each JTTF, federal and local police cooperate at the direction of the Federal Bureau of Investigation (FBI). Before September 11, 2001, there were about 35 JTTFs in the U.S. Today, there are more than 100, including one in each of the FBI’s 56 field offices.

8

JTTFs have violated First Amendment rights by investigating people engaging in free speech and association. For examples, see boxes at right and on page 7.

Secrecy surrounding detention of 5,000 men after 9/11. After the September 11th attacks, the government rounded up and detained approximately 5,000 immigrant men as suspects. None were found to have any involvement in the attacks or with Al Qaeda.30 Ashcroft’s FOIA memo prevented disclosure of the men’s names, even to family or legal counsel.

JTTF and antiwar protestors in Iowa. The Drake University chapter of the National Lawyer’s Guild (NLG) came under suspicion after it organized a November 2003 campus anti-war protest and helped prepare a peaceful demonstration at the Iowa National Guard Headquarters. In February 2004, the U.S. Attorney subpoenaed the university president and four people who attended the event and issued a gag order. A local sheriff’s deputy, identifying himself as a member of the JTTF, served the subpoenas. After the NLG filed a motion to quash the subpoenas, the FBI withdrew the subpoenas and dropped the case.31

Case of art professor Steve Kurtz. On May 11, 2004, Steve Kurtz woke to find his wife dead of heart failure in their home in Buffalo, NY. When emergency personnel arrived, they saw chemicals and other laboratory equipment Kurtz used in his work with the Critical Art Ensemble, a group of performance artists. The JTTF was called and Kurtz was arrested. The JTTF questioned Kurtz and several colleagues about whether he was involved in bioterrorism. Although the JTTF never found any terrorism connection, the Justice Department charged Kurtz and a colleague with mail fraud for using a university account to obtain the laboratory supplies. On April 21, 2008, the charges were dismissed when the judge ruled the indictment for mail and wire fraud “insufficient on its face.”32

New York City police and the 2004 Republican National Convention. In 2004, the New York City Police Department spied on activist groups and even used police agencies throughout the country to inform on peace activists who local police thought might be planning to protest at the Republican National Convention. FBI agents visited many of these activists prior to the convention and discouraged them from attending.33

RNC Protest, Union Square, New York City, August 29, 2004.

9

Fourth Amendment: Right to Privacy The fourth amendment forms a substantial basis of the constitutional right to privacy: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Title or Provision National security letters (NSLs) expanded by PATRIOT Act Section 505 (2001) and the Intelligence Authorization Act of 200434, 35, 36, 37

What It Says/What It Changes NSLs were first authorized in 1986 as a means for the FBI to gather certain records about a foreign terrorist or spy without having to seek a warrant from a judge. In 2001, the USA PATRIOT Act relaxed the standard to allow the FBI to demand telephone toll and transaction records, financial records, and consumer reports without having to show any connection between the records sought and a terrorist. The FBI needs merely to assert that the records are relevant to an “authorized investigation,” a very loose standard. These requests are accompanied by a permanent gag order. (See Gag orders on page 6.) The Intelligence Authorization Act of 2004 expanded the definition of “financial records” to include records from travel agencies, real estate agents, car dealerships, the U.S. postal service, casinos, and insurance companies. Originally the FBI was forbidden from telling even Congress how many times it had used this power. The reauthorization of the PATRIOT Act did, however, require an audit by the Department of Justice Inspector General of the uses of NSLs. The audit reports, released in March 2007 and March 2008, revealed widespread misuse and abuse.

PATRIOT Act Section 203: Authority to share criminal investigative information38

Permits law enforcement to give the CIA sensitive information gathered in criminal investigations, including wiretaps and Internet trapping. The reauthorization permanently enacted this provision of the PATRIOT Act.

PATRIOT Act Section 214: Pen register and trap and trace under Foreign Intelligence Surveillance Act (FISA)39

This provision removed requirements originally in FISA to protect the privacy of Americans. The government no longer needs to show that the communications to be monitored are those of an international spy or of a foreign power or its agents relating to the criminal activities of an international terrorist or spy. A FISA warrant is no longer required to obtain subscriber information for any international phone call from within the U.S. E-mail can also be monitored, and while government agents obtain records of the message itself, they are not supposed to read the content.

PATRIOT Act Section 206: Roving surveillance authority under FISA (a.k.a. roving wiretaps)40

Extends roving wiretap authority to intelligence wiretaps authorized by the Foreign Intelligence Surveillance Court. These wiretaps may be authorized secretly. Expands the power broadly, allowing the FBI to tap any device used by a terrorist suspect, regardless of who is using the device at the time. Note: The reauthorization of the PATRIOT Act extended the sunset for section 206 until December 31, 2009.

10

How It Can Affect You Through its secret orders, the FBI may obtain your private records in response to an anonymous tip or as part of a “fishing expedition” for multiple records. According to the Inspector General’s first audit report, the FBI keeps these records in a database for future use, indefinitely, even after the target is cleared. The records may be misused by a government employee. The presence of your records in the database may be revealed in a background check sought by a prospective employer. You may be required to hand over confidential customer records and to remain silent for the rest of your life Although it is possible to challenge an NSL, the proceedings are heavily weighted toward upholding the government’s assertion that the records sought are needed for national security. No court order is required to hand over information gathered about you. The CIA may share the information with other agencies and with foreign governments. The administration no longer needs a court order to find out information about your international telephone calls or e-mails.

There is no requirement that the agency tap the line only if it knows the intended target is present at the location, allowing conversations of innocent bystanders who may be using the device to be wiretapped.

NSL issued to Library Connection. The FBI issued nearly 150,000 NSL requests from 2003 through 2005, according to a Justice Department internal audit report, and there were many abuses and misuses of the power. Only two recipients’ gag orders have ever been lifted, one of which is Library Connection. Library Connection received a letter in July 2005 requesting information about the use of a library computer five months earlier. Library Connection considered the request a “fishing expedition” because it would have had to turn over all library patron records to comply without any assurance that the person who had used the computer was a registered patron and was therefore in the database.41 Library Connection sued for immediate injunctive relief from the gag order so it could participate in congressional hearings over renewal of the USA PATRIOT Act and inform Congress that, contrary to the administration’s claims, the PATRIOT Act was being used against libraries. The gag order was lifted, but the order was stayed to allow the Justice Department to appeal. It did appeal and waited until six weeks after the reauthorization of the PATRIOT Act to inform Library Connection’s attorneys that it no longer opposed lifting the gag order.42

Internet Service Provider served NSL. In 2004, an Internet service provider (ISP) in New York had challenged compliance with an NSL that sought sensitive information about a client—information to which the ISP’s president felt the FBI was not entitled. The ISP sued on the constitutionality of NSLs, and the District Court agreed that the statute violates the First, Fourth, and Fifth Amendments. Although the FBI claims to have found the information it had requested from the ISP by other means, the gag order still has not been lifted. Because of the gag order, the ISP’s president still cannot divulge to family or friends that he or she received an NSL. Like Library Connection, he or she was prevented from providing firsthand testimony to Congress about NSLs during its hearings over reauthorization of the PATRIOT Act.43

11

Fourth Amendment: Right to Privacy  Title or Provision

(continued)

What It Says/What It Changes

PATRIOT Act Section 213: Authority for delaying notice of the execution of a warrant (a.k.a “sneak and peek”)44

Permits the government to search your home with no one present and to delay notification indefinitely. Court may authorize delayed notification “if the court finds reasonable cause to believe that providing immediate notification…may have an adverse result.” The Reauthorization retained §213 but removed “unduly delay of trial” as justification for delaying notice. The loose standard of “seriously jeopardizing an investigation” remains, however. Those being searched must be notified within 30 days of search unless the warrant states otherwise.

PATRIOT Act Section 215: Access to records and other items under FISA45

Reduces the requirement for obtaining records on a suspected terrorist or foreign spy. Previously, the standard for obtaining records was to show “specific and articulable facts” that the records sought belong to a suspected terrorist or foreign spy. The FBI Director, Deputy Director, and Executive Assistant Director for National Security may now request a court order for tangible items, including records of a U.S. citizen or legal resident, in relation to an investigation “to protect against international terrorism or clandestine intelligence activities.” The FBI must show “reasonable grounds” that information sought is relevant to an ongoing investigation. However, the FBI is not required to show that a particular individual is under investigation. The FISA judge must give permission if an agent has so certified. Recipients of orders have a limited right to challenge the order by having their attorneys file a challenge to the FISA court. Only the administration may appear before the FISA court judge, however. Also places a gag order on the recipient to prevent disclosure of the order. (See Gag orders on page 6.)

PATRIOT Act Section 218: Foreign intelligence information46, 47

Amends FISA by eliminating the need for the FBI to show “probable cause” to a judge before conducting secret searches or surveillance to obtain evidence of a crime. FBI may now gather “foreign intelligence information” without a warrant, unless the evidence sought is to be used in a criminal proceeding. Former standard of “foreign intelligence information” is weakened. Agents may now conduct secret searches or surveillance if they say that foreign intelligence is relevant or plays a part in the investigation. The 2006 Reauthorization added a requirement that the Attorney General report to the House of Representatives include only how many applications were made for FISA warrants and how many were permitted and declined. Note: The Foreign Intelligence Surveillance Court issued an opinion in May 2002 that rejected the Justice Department’s request for information sharing between counterintelligence and prosecutors, ruling that such sharing would not effectively protect rights to privacy.48

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How It Can Affect You Unlike the former “knock and announce” policy, a person whose home is to be searched cannot view the warrant to make sure the address is correct or to make sure that the agent adheres to the warrant’s description of what is to be searched. Furthermore, a person whose home or office has been ransacked may conclude he or she has been robbed and may then live in fear of robbers returning with violence in the future. The information gathered may be held indefinitely, and could potentially be used when a person applies for a new job or bank loan or to a university. Records of a U.S. citizen or legal resident may be sought provided the investigation is not conducted solely based on activities protected by the First Amendment. This loose standard makes it much easier for the FBI to seek your records, even if you are acting lawfully. If you receive such a request, any challenge you file would be heavily slanted in the administration’s favor. If you choose to challenge the permanent gag order, you must wait a year to mount your challenge.

Your home or office may be searched secretly on an assertion by the FBI that the information sought is relevant to its investigation.

PETA audited, members interrogated. An ACLU FOIA request elicited a heavily redacted document from the Department of Justice, which revealed that People for the Ethical Treatment of Animals (PETA) was under surveillance because it was suspected of ties to the Animal Liberation Front. The suspicions were unfounded. PETA became concerned when it was audited twice and its members interrogated, often for hours.49

Brandon Mayfield’s home and office secretly searched. Mayfield is an attorney in Portland, Oregon, who, with wife Mona and two children, was severely traumatized in 2004 when the FBI falsely connected Mayfield with the 2004 Madrid train bombing. The family was followed, their home was searched, and Brandon Mayfield was imprisoned for two weeks. The family could have walked away in November of 2006, when Mayfield won an apology from the FBI, along with $2 million in damages. However, Mayfield persisted by demanding that the courts outlaw PATRIOT Act provisions that opened the door to secret searches of Americans’ homes without ordinary court warrants and allowed the government to potentially treat any of us as if we are foreign spies. Mayfield won his case in the fall of 2007. The government appealed in February 2008. The case is ongoing.50

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Fourth Amendment: Right to Privacy 

Title or Provision PATRIOT Act Section 411: Definitions relating to terrorism51

(continued)

What It Says/What It Changes Allows Secretary of State to designate any foreign or domestic group that has engaged in a violent activity a “terrorist organization.” The group is not informed beforehand and is given no opportunity to defend itself from the designation. (See also PATRIOT Act Section 805 on page 6.)

Government databases such as Investigative Data Warehouse52

Many databases have been set up or expanded in a process known as “datamining.” For example, more than 13,000 government employees have access to private records in the FBI’s Investigative Data Warehouse, which contains more than 700 million records, including financial records. Such massive collection of personal information by the government without warrants violates the Fourth Amendment and the Privacy Act. Information in the databases is kept indefinitely, even if the people named there are cleared of wrongdoing.

National Security Agency (NSA) warrantless wiretapping53

As early as February 2001, President George W. Bush authorized the NSA to start tapping phone lines and collecting e-mail messages involving communications believed to be between someone in the U.S. and someone outside the U.S. This was a major shift from the requirements of the Fourth Amendment and FISA. The administration claims this program is not a threat to the civil liberties of Americans. However, evidence that American reporters’ and activists’ phones have been tapped has disproved this claim. The New York Times first reported on the program in 2005. Congress’s outrage and reported requests for information from the administration, always rebuffed, appeared to have subsided by 2007, when Congress passed the Protect America Act, which legalized the warrantless wiretapping program for six months, followed in 2008 by passage of the FISA Amendments Act.

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Attorney General’s March 2003 order subverting the 1974 Privacy Act54

The 1974 Privacy Act requires that any information entered into the National Crime Information Center (NCIC) be timely, accurate, and complete. In his March 2003 order, Attorney General John Ashcroft permitted the collection of information that is not timely, accurate, and complete.

U.S. Customs and Border Protection (CBP) Policy Regarding Border Search of Information55

CBP officers “may search, review, retain, and share certain information possessed by individuals who are encountered by CBP at the border.” The officers do not need a warrant or reasonable suspicion to look through or to seize any papers or to seize indefinitely, examine, or download the contents of any laptop, cell phone, or other electronic device they encounter at the border.

How It Can Affect You The lowered standard for terrorist designation raises the possibility that a group you founded, support, or hold membership in may be so designated, or that you or your group may be audited or members interrogated if the FBI suspects any possible connection to such a group. The records may be misused by a government employee. If the government shares that information with private corporations, the corporations need not comply with the Fourth Amendment.

Pentagon shuts down TALON database. The Pentagon’s Threat and Local Observation Notice (TALON) system, begun in 2003, was meant to collect domestic intelligence on threats to military members and facilities. However, the TALON database soon became filled with reports of peaceful antiwar protests and tourists snapping photos of bridges. In 2007, Undersecretary of Defense James R. Clapper, Jr., (pictured) stated that the Pentagon “has assessed the results of the TALON program and does not believe they merit continuing the program as currently constituted, particularly in light of its image in Congress and the media.”56

Data, including erroneous data, may prevent you from getting a job, mortgage, or bank account, with no way to find out why. Without a judicial check, the NSA may choose to tap private communications based on little evidence, and may store whole streams of calls and e-mails for later use. Besides the privacy concerns, the focus on so many people not only subjects more Americans to surveillance, but it makes our country less safe by diverting intelligence resources from genuine threats to the private lives of ordinary Americans.

False information kept by the government puts people who are questioned or detained on the basis of that information at a disadvantage. Without access to the database, the individual has no prior knowledge of inaccurate information and no way to replace it with an accurate account. Without a judicial check or any reason to suspect wrongdoing, travelers’ private records, business records, or possessions may be downloaded or seized.

NSEERS program turned up no terrorists. The National Security Entry-Exit Registration System (NSEERS) required men from North Korea and 24 Muslim countries to report voluntarily to Immigration and Naturalization Service (INS) facilities for “special registration” involving interviews, fingerprinting and photographing. BORDC estimates the program cost American taxpayers more than $360 million in 2003 alone, without turning up a single terrorist. The program was replaced by the US-VISIT program, which tracks all temporary visitors to the U.S.57, 58

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Fifth Amendment: Due Process, Unlawful Imprisonment, and Self-Incrimination “No person shall be held to answer for a…crime, unless on a presentment or indictment of a Grand Jury…, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”

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Title or Provision

What It Says/What It Changes

How It Can Affect You

Attorney General’s approval of a Bureau of Prisons emergency surveillance order59

Removes requirement to obtain judicial permission before listening in on conversations between prisoners (both pre-trial and convicted) and their attorneys. This rule has been amended and permanently approved by Congress. The permanent approval states that the Attorney General may order conversations between an inmate and his or her attorney be monitored. In order to do so, there must be evidence from the head of law enforcement or intelligence agencies that the particular inmate is intending to plan acts that would cause serious bodily injury or death or serious property crimes that could result in bodily injury or death. Prior notification to the inmate and the attorney is required before monitoring is permitted. However, no judicial oversight is required.

A prisoner may unwittingly become a witness against himself or herself.

Claims of state secrets to prevent lawsuits from coming to trial60

The state secrets privilege was approved in 1953 by the U.S. Supreme Court to allow the government to shield information whose release would damage national security. However, the Bush administration has used this privilege approximately 25 percent more often than previous administrations, and it has done so to prevent cases from reaching the courts. It has claimed state secrets to successfully stave off the suits of German citizen Khaled el Masri and Canadian citizen Maher Arar, victims of the CIA’s extraordinary rendition, and the suit of FBI translator Sibel Edmonds against the Bureau.

Using the state secrets privilege to shut down a trial or to prevent key evidence from coming to light denies plaintiffs their right to due process of law.

Misuse of material witness law61

The material witness law was meant to ensure the presence of a witness who is considered a flight risk at a trial or before a grand jury. However, since the terrorist attacks of September 2001, the Bush administration has used this law to detain about 50 Muslim men, including Brandon Mayfield, for whom the government lacked probable cause warranting an arrest.

Misuse of this law by the government may result in your detention without probable cause to believe that you may have been involved in wrongdoing.

Abridges First Amendment freedom of speech and attorney-client privilege as outlined in the Sixth Amendment.

Sixth Amendment: Rights of the Accused “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” Title or Provision Combatant Status Review Tribunals (CSRTs) for detainees held at Guantánamo Bay62

What It Says/What It Changes Developed by the Pentagon after the Supreme Court ruled against the administration in Hamdan v. Rumsfeld. Used to determine whether a detainee is an enemy combatant who must be held until the end of hostilities or is not an enemy combatant and must be released. CSRTs are not open to the public, and detainees are permitted only to view “unclassified” evidence against them. They are afforded a “personal representative” who often has no legal background and who sometimes acts more like a prosecutor than a defense attorney. Communications between the representative and detainee are not considered confidential. Hundreds of detainees designated as enemy combatants have suddenly been released to their home countries and no longer considered enemy combatants.

Creppy Memo63

Chief Immigration Judge Michael Creppy issued an order barring the public and the press from all immigration hearings for “special interest” persons. Prior to this memo, the decision to close an individual hearing was left to the judge hearing the case. In Haddad v. Ashcroft, the Sixth Circuit Court of Appeals ruled the memo unconstitutional. “Democracies die behind closed doors,” wrote senior Judge Damon Keith. In the conflicting case of North Jersey Media Group v. Ashcroft, the Third Circuit ruled that the Creppy Memo was constitutional. The Supreme Court refused to hear the case, leaving the Creppy memo allowed in some jurisdictions and not others. The administration maintains that it is no longer using the Creppy memo to keep immigration hearings closed.

How It Can Affect You Charges that the CSRTs are unfair abound. Transcripts of selected CSRTs may be found at http://www.defenselink. mil/news/Combatant_ Tribunals.html. Using a sham process that fails international law standards increases the likelihood that Americans will be subjected to similar treatment and compromises the U.S. government’s ability to object. Further, it diminishes protections of the U.S. military, business, and workers or tourists who are captured abroad from receiving equally unjust treatment. A hearing to decide the fate of an immigrant family member or friend may be closed to the public and press on a blanket basis. This secrecy makes it impossible to know whether the hearing was fair.

Hearings of Rabih Haddad closed to his family and the media. Rabih Haddad, a former Ann Arbor, MI, resident, was prosecuted for his association with the Global Relief Foundation, a charity he headed. The administration froze his charity’s assets, claiming it was a front for a terrorist organization. Haddad’s hearings were closed and he was deported without the government showing any evidence that Haddad or his charity were associated with terrorism.64

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Supreme Court Rulings The Supreme Court has reviewed several cases that relate to the PATRIOT Act and various executive measures. Four important decisions are described below. Case Description Rasul v. Bush (2004) Shafiq Rasul is one of three men from Tipton, England, held at Guantánamo Bay. Captured in Afghanistan, Rasul admitted to fighting for the Taliban, but only because they took him captive. The Center for Constitutional Rights filed a habeus corpus petition on his behalf, contending that detainees cannot be held indefinitely without due process and have the right to challenge their detention (as required by the Constitution and international law).65

The Supreme Court ruled that the Guantánamo Bay detention center is not outside of U.S. territory and therefore petitioners, U.S. citizens or not, have habeas corpus rights.66, 67

Hamdi v. Rumsfeld (2004) Yaser Hamdi is a U.S. citizen captured in the invasion of Afghanistan and designated an enemy combatant. The U.S. government alleges he was working for the Taliban, but Hamdi maintains that he was a relief worker.

The Supreme Court found that U.S. citizens designated as enemy combatants have a right to challenge their detention under the due process clause, saying the detainees must be afforded a “meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”68

Hamdan v. Rumsfeld (2006) Salim Hamdan is a Yemeni man captured in the invasion of Afghanistan. He has admitted to being Osama bin Laden’s personal driver and bodyguard, saying he needed the $200 per month salary. He filed a writ of habeus corpus to challenge his detention.

The Supreme Court held that the President’s military commissions were not authorized by any Congressional act and were in conflict with the Uniform Code of Military Justice and the Geneva Conventions. They ruled the commissions unconstitutional because they did not afford due process and set down basic requirements for future commissions. The Court also stated that detainees must be treated humanely.69

Boumediene v. Bush and Al Odah v. U.S. (2008) These cases were consolidated in their Supreme Court appeals. Lakhdar Boumediene is one of six Bosnian citizens detained at Guantánamo in connection with an alleged plot to bomb the U.S. embassy in Sarajevo. Boumediene denies being a member of Al-Qaeda and, according to the Center for Constitutional Rights, there is no evidence to justify his arrest.

On June 12, 2008, the Supreme Court ruled 5-4 that Guantánamo detainees have the right to file habeus corpus petitions in federal court to contest their detention. The decision effectively overturned the relevant provisions of the MCA.72 Justice Anthony Kennedy, writing for the majority, said,

Fawzi Al-Odah is a Kuwaiti teacher who was sent to Guantánamo Bay in 2002. He says he went to Afghanistan to do charitable work and, after 9/11, tried to flee; he was captured in Pakistan. Eight other Kuwaiti detainees were released from Guantánamo, but Al Odah and three others remain, likely because the Kuwaiti court hearing the cases of the released men found no viable case and set them free.71

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What It Said

The laws and Constitution are designed to survive, and remain in force, in extraordinary times....Our opinion does not undermine the executive’s powers as commander in chief....those powers [are] vindicated, not eroded, when confirmed by the judicial branch. 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.73

Aftermath Rasul was released from Guantánamo on March 9, 2004, and was turned over to British authorities. He was shortly thereafter released by the British authorities. No charges were ever brought against Rasul.

Hamdi was eventually deported to Saudi Arabia on the condition that he forfeit his U.S. citizenship. He may never travel to the U.S., Iraq, Afghanistan, or other sensitive areas.

After the Boumediene ruling (see below), Hamdan became the first Guantánamo detainee to be tried in what was the first war crimes trial in the U.S. since World War II. On August 6, 2008, a hand-picked panel of military officers convicted him of material support for terrorism, but acquitted him of the more serious terrorist conspiracy charge. Despite the government’s efforts to impose a 30-year prison term, he received a sentence that, with time served, amounted to five more months in prison. However, the U.S. has said it will not release a detainee until it is sure that he is no longer a threat, so it remains to be seen whether Hamdan will be set free.70 The ruling effectively ends the debate over whether Guantánamo falls under Constitutional control. Thus, one likely consequence of the decision is that military commissions will be subjected to constitutional review, although when or how this could happen remains to be seen. Tribunals for detainees began almost immediately after the decision. The Hamdan tribunal (see above) was the first to be completed, followed by the prosecution of Omar Khadr, a Canadian who, at the time he was alleged to have killed a U.S. soldier with a grenade in a firefight in Afghanistan, was just 15 years old. Other cases are currently moving through the Court-determined consolidated procedures in the federal district court in Washington, D.C.

Lieutenant Colonel Stephen Abraham blows whistle on CSRTs. From 2004 to 2005, Lieutenant Colonel Stephen Abraham’s duty at Guantánamo was to “gather or validate information relating to [Guantánamo] detainees for use in CSRTs.” Abraham’s statement sheds light on why the CSRTs have declared hundreds of innocent men as “enemy combatants,” only to release them years later without any charges. Here is an excerpt from Abraham’s declaration: I was specifically told on a number of occasions that the information provided to me was all that I would be shown, but I was never told that the information that was provided constituted all available information. On those occasions when I asked that a representative of the organization provide a written statement that there was no exculpatory evidence, the requests were summarily denied. In fact, when Abraham and two other officers assigned to one CSRT panel found “no factual basis for concluding that the individual should be classified as an enemy combatant,” they were questioned by Rear Admiral James M. McGarrah, Director of the Office of the Administrative Review of the Detention of Enemy Combatants (OARDEC), and the Deputy Director, directed to write out their questions, and ordered to try again. After refusing to agree with the classification of “enemy combatant” for the detainee, Abraham concludes, “I was not assigned to another CSRT panel.” A new CSRT panel was assembled, which found the detainee to be an enemy combatant.74

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Notes Introduction

1. “OIG Report on CIA Accountability With Respect to the 9/11 Attacks.” U.S. Central Intelligence Agency’s Office of the Inspector General. Jun. 2005. 27 Aug. 2008. .

2. National Commission on Terrorist Attacks upon the United States. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States. New York: Norton, 2004. 3. Jane Mayer. The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals. New York: Doubleday, 2008. Habeas Corpus

4. Joanne Mariner. “The Military Commissions Act of 2006: A Short Primer, Part One of a Two-Part Series.” FindLaw. 9 Oct. 2006. 21 Jul. 2008 . 5. Joanne Mariner. “The Military Commissions Act of 2006: A Short Primer, Part Two of a Two-Part Series.” FindLaw. 25 Oct. 2006. 21 Jul. 2008 . 6. Stephen Grey. “The Agonizing Truth About CIA Renditions.” Salon. 5 Nov. 2007. 21 Jul. 2008 .

7. Mark Benjamin and Michael Scherer. “The Pentagon’s Ghost Investigation.” Salon. 17 May 2006. 21 Jul. 2008 . 8. “Terror Suspects Can’t Sue Pentagon.” Washington Times. 12 Jan. 2008. 17 Jul. 2008 . 9. Kirk Semple. “Jose Padilla Sentenced to More Than 17 Years in Prison.” International Herald Tribune. 22 Jan. 2008. 17 Jul. 2008 .

10. Raymond Bonner. “David Hicks, Australian Sentenced at Guantanamo, is Released from Prison.” International Herald Tribune. 30 Dec. 2007. 17 Jul. 2008 . 11. “The Courts and Mr. Arar.” Editorial. New York Times. 31 Aug. 2008. 2 Sep. 2008 . Supremacy Clause

12. Arsalan M. Suleman. “Detainee Treatment Act of 2005.” Harvard Human Rights Journal 19 (Spring 2006): 258-265. 21 Jul. 2008 . 13. George W. Bush. “Executive Order 13440.” American Presidency Project. 20 Jul. 2007. 21 Jul. 2008 .

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14. Larry O’Dell. “Appeal of Bush Assassination Plot Heard.” Washington Post. 21 Jun. 2007. 17 Jul. 2008 .

15. Glenn Greenwald. “Al-Marri and the Power to Imprison U.S. Citizens Without Charges.” Salon. 16 Jul. 2008. 17 Jul. 2008 . Separation of Powers

16. Charlie Savage. “Bush Could Bypass New Torture Ban.” Boston Globe. 4 Jan. 2006. 21 Jul. 2008 .

17. T.J. Halstead. “Presidential Signing Statements: Constitutional and Institutional Implications.” Congressional Research Service. 17 Sep. 2007. 13 Aug. 2008. . First Amendment: Freedom of Religion, Speech, Press, Assembly, and Dissent

18. Dahlia Lithwick and Julia Turner. “A Guide to the Patriot Act, Part 4: Should You Be Scared of the Patriot Act?” Slate. 11 Sep. 2003. 21 Jul. 2008 .

19. Larry Abramson and Maria Godoy. “The Patriot Act: Key Controversies.” National Public Radio. 16 Dec. 2005. 21 Jul. 2008 .

20. “The USA PATRIOT Act.” American Library Association. 23 Jul. 2008 . 21. Charles Babington. “Politicians Find Agreement on New Patriot Act.” Washington Post. 10 Feb. 2006. 21 Jul. 2008 . 22. “May 30, 2002: CDT’s Analysis of New FBI Guidelines.” The Center for Democracy & Technology. 21 Jul. 2008 .

23. “The Attorney General’s Guidelines.” Electronic Privacy Information Center. 23 Jul. 2008 . 24. Jake Tapper. “Sleeper Cell – Or Foolish Pawns?” Salon. 19 May 2003. 17 Jul. 2008 .

25. Maureen O’Hagan. “A terrorism case that went awry.” Seattle Times. 22 Nov. 2004. 13 Aug. 2008. . 26. Marge Holland. “California Sheriff admints spying on antiwar group.” World Socialist Web Site. 7 Mar. 2006. 2 Sep. 2008. .

27. Eric J. Sinrod. “The Intersection Between Information and Security.” Law.com. 17 Jan. 2002. 21 Jul. 2008 .

28. Elizabeth Williamson. “Is Ombudsman Already in Jeopardy?” 42. George Christian. “Testimony for the Record to the Senate Washington Post. 6 Feb. 2008. 22 Jul. 2008 . Use of National Security Letters by the FBI.” 110th Cong., 1st Session. 11 Apr. 2007. . Terrorist Attack: A Closer Look at the FBI’s Joint Terrorism Task Forces.” 1 Dec. 2004. 2 Sep. 2008. .

30. David Cole. “Less Safe, Less Free.” Salon. 19 Nov. 2004. 17 Jul. 2008 .

31. Monica Davey. “An Antiwar Forum in Iowa Brings Federal Subpoenas.” New York Times. 10 Feb. 2004. 17 Jul. 2004 .

32. Colin Dabkowski. “Art Preview: Kurtz Makes Use of What Agents Left Behind.” Buffalo News. 6 Jun. 2008. 17 Jul. 2008 . 33. Jim Dwyer. “NY Police Spied on Activists Before 2004 Convention.” International Herald Tribune. 25 Mar. 2007. 17 Jul. 2008 . Fourth Amendment: Right to Privacy

34. Dahlia Lithwick and Julia Turner. “A Guide to the Patriot Act, Part 4: Should You Be Scared of the Patriot Act?” Slate. 11 Sep. 2003. 22 Jul. 2008 .

35. Kim Zetter. “Bush Grabs New Power for FBI.” Wired. 6 Jan. 2004. 22 Jul. 2008 . 36. Bill Brubaker. “Bush Signs New Version of Patriot Act.” Washington Post. 9 Mar. 2006. 22 Jul. 2008 . 37. Jeffrey R. Smith. “Failures at FBI Acknowledged.” Washington Post. 28 Mar. 2007. 22 Jul. 2008 . 38. “The USA PATRIOT Act.” 27 Feb. 2006. 22 Jul. 2008 .

39. Dahlia Lithwick and Julia Turner. “A Guide to the Patriot Act, Part 3: Should You Be Scared of the Patriot Act?” Slate. 10 Sep. 2003. 22 Jul. 2008 . 40. Dahlia Lithwick and Julia Turner. “A Guide to the Patriot Act, Part 3: Should You Be Scared of the Patriot Act?” Slate. 10 Sep. 2003. 22 Jul. 2008 .

41. Peter Pollack. “Patriot Act Smackdown: Librarians 1, FBI 0.” Ars Technica. 27 Jun. 2006. 17 Jul. 2008 .

43. “My National Security Letter Gag Order.” Washington Post. 22 Mar. 2007. 17 Jul. 2008 . 44. Dahlia Lithwick and Julia Turner. “A Guide to the Patriot Act, Part 2: Should You Be Scared of the Patriot Act?” Slate. 9 Sep. 2003. 22 Jul. 2008 . 45. Dahlia Lithwick and Julia Turner. “A Guide to the Patriot Act, Part 1: Should You Be Scared of the Patriot Act?” Slate. 8 Sep. 2003. 22 Jul. 2008 . 46. Dahlia Lithwick and Julia Turner. “A Guide to the Patriot Act, Part 2: Should You Be Scared of the Patriot Act?” Slate. 9 Sep. 2003. 22 Jul. 2008 .

47. Anita Ramasastry. “Patriot Act Should Be Reined In.” CNN. 6 Jun. 2005. 22 Jul. 2008 . 48. Foreign Intelligence Surveillance Court Opinion and Order. 17 May 2002. 26 Aug. 2008. <www.cnss.org/FISA%20 court%20opinion.pdf>. 49. Eric Lichtblau. “F.B.I. Watched Activist Groups, New Files Show.” New York Times. 20 Dec. 2005. 17 Jul. 2008 . 50. Garrett Epps. “Vengeance is Brandon Mayfield’s.” Salon. 3 Oct. 2007. 21 Jul. 2008 .

51. American Civil Liberties Union. “How the Anti-Terrorism Bill Allows for Detention of People Engaging in Innocent Associational Activity.” 23 Oct. 2001. 2 Sep. 2008 . 52. Ryan Singel. “U.S. Details Some Data-Mining Programs, Hints at Others.” Wired. 16 Jul. 2007. 22 Jul. 2008 .

53. Eric Lichtblau. “Senate Approves Bill to Broaden Wiretap Powers.” New York Times. 10 Jul. 2008. 22 Jul. 2008 .

54. Center for National Security Studies. Strengthening America by Defending Our Liberties: An Agenda for Reform. 31 Oct. 2003. 2 Sep. 2008. . 14. 55. “Policy Regarding Border Search of Information.” U.S. Customs and Border Protection. 16 Jul. 2008. 27 Aug. 2008. .

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56. Walter Pincus. “Pentagon to End Talon Data-Gathering Program.” Washington Post. 25 Apr. 2007. 21 Jul. 2008 .

57. “FY 2003 INS Budget–Border Enforcement.” Transactional Records Access Clearinghouse. 19 Jul. 2002. 21 Jul. 2008 . 58. “Inaccurate Criminal Databases.” Rights Working Group. 23 Jul. 2008. 23 Jul. 2008 .

Fifth Amendment: Due Process, Unlawful Imprisonment, and Self Incrimination 59. George Lardner, Jr. “U.S. Will Monitor Calls to Lawyers.” Washington Post. 9 Nov. 2001. 22 Jul. 2008 . 60. Mark Follman. “The Bush Code of Secrecy.” Salon. 23 Jun. 2006. 22 Jul. 2008 .

61. Eric Lichtblau. “Two Groups Charge Abuse of Witness Law.” New York Times. 27 Jun. 2005. 22 Jul. 2008 . Sixth Amendment: Rights of the Accused

62. Julian E. Barnes. “Secret Terror Hearings in Guantanamo.” Los Angeles Times. 13 Mar. 2007. 22 Jul. 2008 .

Supreme Court Rulings

65. “Rasul v. Bush.” Center for Constitutional Rights. 2 Sep. 2008. . 66. David Stout. “Supreme Court Affirms Detainees’ Right to Use Courts.” New York Times. 28 Jun. 2004. 22 Jul. 2008 .

67. “Rasul et al. v. Bush, President of the United States, et al.” FindLaw. 28 Jun. 2004. 22 Jul. 2008 . 68. David Stout. “Supreme Court Affirms Detainees’ Right to Use Courts.” New York Times. 28 Jun. 2004. 22 Jul. 2008 .

69. David Cole. “One Nation Under Law—Not Bush.” Salon. 25 Jul. 2006. 22 Jul. 2008 .

70. Warren Richey. “Hamdan sentenced in first terror tribunal.” Christian Science Monitor. 8 Aug. 2008. 14 Aug. 2008. . 71. Andy Worthington. “Profiles: Odah and Boumediene.” BBC News. 4 Dec. 2007. 14 Aug. 2008. .

72. Glenn Greenwald. “Supreme Court Restores Habeas Corpus, Strikes Down Key Part of Military Commissions Act.” Salon. 12 Jun. 2008. 22 Jul. 2008 . 63. Nancy V. Baker. “The law: the impact of antiterrorism policies on separation of powers: assessing John Ashcroft’s role.” 73. “Boumediene et al. v. Bush, President of the United States, Presidential Studies Quarterly 32.4 (Dec. 2002): 765(14). et al.” FindLaw. 12 Jun. 2008. 22 Jul. 2008 . U.S. Deports Charity Leader in Visa Dispute.” New York Times. 16 Jul. 2003. 21 Jul. 2008 .

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74. William Glaberson. “Reserve Officer Criticizes Process of Identifying ‘Enemy Combatants’ at Guantanamo.” New York Times. 23 Jun. 2007. 21 Jul. 2008 .

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