9 Similarly, within days of the attacks on September 11th, the Federal Bureau of Prisons pursuant to a directive issued by the Department of Justice, commenced the 24-hour lockdown of political prisoners incarcerated in federal facilities. This lockdown was unannounced and unexpected. The lockdown order resulted in the placement of prisoners in administrative segregation, with no provision for contact with family, friends or counsel, no exercise, and no avenue for filing a grievance about the punishment. 10. "Al's Concerns Regarding Post September 11 Detentions in the USA," Amnesty International, March 2002, pp. 6-7, fn. 11. Center for National Security Studies v. United States Department of Justice, No. Civ. A 01-2500 (GK) (Aug. 15, 2002). 12. Al's Concerns Regarding Post September 11 Detentions in the USA," Amnesty International, March 2002, pp. 6-7, fn. 13. The Creppy memo discussed above, by excluding journalists from public proceedings, violates the free press guarantees of the First Amendment (as well as the due process rights of accused immigration violators under the Fifth Amendment). Courts in Michigan and New Jersey have ruled that the closures are unconstitutional on this basis, and on August 26th, a federal appeals court upheld the Michigan ruling. See Detroit Free Press v. Ashcroft, Case No. 02-1437 (6th Cir., August 26, 2002); North Jersey Media Group v. Ashcroft, 205 F. Supp. 2d 288 (D.N.J. 2002). 14. Section 411 also stretches the definition of terrorism past its natural breaking point. Under that section, a terrorist act is one committed with a "weapon or dangerous device (other than for mere monetary gain)." Conceivably, this would make ordinary crimes committed by non-citizens terrorist acts, provided money is not the motive. 15. The poster concerned the application of the death penalty in Texas under then-Governor George Bush. 16. Brandenberg v. Ohio, 395 U.S. 444 (1969). 17. Nancy Chang, Silencing Political Dissent: How Post September 11Anti-Terrorism Measures Threaten Our Civil Liberties, Seven Stories Press, 2002, pp. 123-24. 18. United States v. United States District Court for the Eastern District of Michigan, 313 U.S. 297 (1972). 19. Undated letter to Sens. Bob Graham, Orrin Hatch, Patrick Leahy and Richard Shelby, p. 9. Letter on file with CCR. 20. This threat to Fourth Amendment rights was dealt a serious setback in May 2002, when the Foreign Intelligence Surveillance Court, empowered to authorize foreign intelligence wiretaps, rejected a Justice Department request for broader powers to share information gathered by counterintelligence agents with criminal investigators. The opinion, which noted numerous instances where it was mislead by the FBI under the Clinton investigation, found that the powers sought defied the intent of Congress when it passed the Foreign Intelligence Surveillance Act, and were not "reasonably designed" to protect the privacy rights guaranteed by the Fourth Amendment. 21. Note, too, that this finding need only be made by the Attorney General, not an independent judge, as required for a normal arrest. 22. Most detainees have been held for significantly longer, and it is unclear whether the Justice Department is applying Section 412 to its investigation 23. Ibid, p. 16 24. "Special Administrative Measure for the Prevention of Acts of Violence or Terrorism," 66 Fed. Reg. 55062. 25. Note that this rule applies to all prisoners, including pretrial detainees, immigration cases and material witnesses, and not just criminal convicts whose rights are curtailed under the Constitution. 26. See e.g., Richard Sisk, Airport Gun Battle Firefight Erupts As Prisoners Are Flown To Cuba, New York Daily News, Friday, January 11, 2002 at 27. 27. See e.g., Amnesty International, USA: Al calls on the USA to end legal limbo of 28. Lynne Sladky, More Scrutiny on Suspects' Treatment, Associated Press, Tuesday January 22, http://dailynews.yahoo.com/h/ap/20020122/wl/guantanamo_prison_38.html. 29. Statement of High Commissioner for Human Rights on Detention of Taliban and Al Qaida Prisoners at US Base in Guantanamo Bay, Cuba, 16 January 2002, at: http://www.unhchr.ch/huricane/huricane.nsf/newsroom. 30. Davis Bloom and Soledad O'Brien, Former Defense Secretary William Cohen Discusses the Status of Prisoners Held by US in Guantanamo Bay and Afghanistan, NBC News, Saturday, January 12, 2002. 31. See: http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html. 32. Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949 (ratified by the United States without reservation on 2 August 1955) (Geneva III), Article 5. 33. Richard Waddington, Guantanamo Inmates Are POWS Despite Bush View - ICRC, Reuters, February 9, 2002. 34. Id. 35. ICRC, Communication to the press No. 02/11, February 9, 2002. 36. Jane Sutton, Prisoners at Guantanamo Bay Face First Questioning, Reuters, Wednesday January 23, at http://dailynews.yahoo.com/h/nm/20020123/ts/attack_guantanamo_dc_27.html. 37. Reuters, 'Good Cop, Bad Cop Gets Al Qaeda to Talk, Friday February 1, at: 38. See United Nations General Assembly Resolution on the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, Resolution 43/173 (9 December 1988), Principle 11; United Nations Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, Havana, Cuba, (27 August to 7 September 1990). Principles 1 to 8; Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal for Rwanda and the Former Yugoslavia and Rwanda (As Amended) 29 November 1999, Rules 5, 9, 12 and 67. 39. Geneva III, Articles 4 & 5 40. Pows can be charged with war crimes committed both before and during hostilities, Art 85, but the trials of such crimes must be before the same courts employing the same procedures as those of the detaining power. Art 102, Geneva III. Coard et al v United States, Case 10,951, Inter-Am. C.HR. Report No. 109/99 (1999), para.39. REPORT, NANCY CHANG & ALAN KABAT, CENTER FOR CIVIL RIGHTS, “SUMMARY OF RECENT COURT RULINGS ON TERRORISM-RELATED MATTERS HAVING CIVIL LIBERTIES IMPLICATIONS," MARCH 8, 2004 centerforconstitutionalrights Rice SUMMARY OF RECENT COURT RULINGS ON TERRORISM-RELATED MATTERS HAVING CIVIL LIBERTIES IMPLICATIONS1 Nancy Chang, Center for Constitutional Rights (New York City) and Alan Kabat, Bernabei & Katz, PLLC (Washington, D.C.) March 8, 2004 Introduction I. The Detention of Non-Citizens of Special Interest to the Government's A. B. C. 2 3 3 The Blanket Closure of Immigration Hearings to the Press and Public 5 II. The Detention of Material Witnesses for Grand Juries III. The Military Detention of Enemy Combatants and Foreign Nationals Nancy Chang and the Center for Constitutional Rights are counsel of record in a number of cases described in this paper, including North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert. denied, 123 S. Ct. 2215 (2003). Humanitarian Law Project, et al., v. Ashcroft, et al., 352 F.3d 382 (9th Cir. 2003) (“Humanitarian Law Project F'), Humanitarian Law Project, et al. v. Ashcroft, et al., 2004 U.S. Dist. LEXIS 926 (C.D. Cal. Jan. 23, 2004) (“Humanitarian Law Project II), Haddad v. Ashcroft, 221 F. Supp. 2d 799 (E.D. Mich. 2002). and Turkmen, et al., v. Ashcroft, et al., No. 02 CV 2307 (JG) (E.D.N.Y.). In addition, Nancy and the Center have submitted amicus briefs in support of several individuals whose cases are described in this paper, including Josc Padilla, Lynne Stewart, and John Walker Lindh. Alan Kabat and Bernabei & Katz, PLLC, are counsel of record in Burnett, et al. v. Al Baraka Investment and Development Corporation, et al., 274 F. Supp. 2d 86 (D.D.C. 2003), and 32 County Sovereignty Committee v. Department of State. 292 F.3d 797 (D.C. Cir. 2002). Preliminary versions of this paper were presented at the July 26, 2003 and January 23, 2004 meetings of the National Coalition to Protect Political Freedom (NCPPF) in Washington, D.C. The authors express their appreciation to the NCPPF and its President, Kit Gage, for hosting these presentations. Copyright Nancy Chang (Center for Constitutional Rights) and Alan Kabat (Bernabei & Katz, PLLC), 2003-2004 A B. The Detention of American Citizens Designated as Enemy Combatants 9 12 IV Sixth Amendment Rights of Criminal Defendants Charged with Terrorist Crimes 14 V The Crime of Providing Material Support to Proscribed Organizations 17 A. B The Designation of Groups as "Foreign Terrorist Organizations" 17 19 VIII Freezing the Assets of Charities Alleged to Have Supported Terrorism In the eleven years since the 1993 bombing of the World Trade Center in New York City, criminal prosecutions, civil lawsuits, habeas petitions, and other legal proceedings involving persons and groups alleged to have engaged in or supported terrorism have proliferated. The number of such proceedings has escalated sharply with the September 11, 2001 terrorist attacks on the United States and the subsequent enactment of the USA Patriot Act and introduction of executive anti-terrorism measures, and this trend has continued unabated to the present. Unfortunately, information documenting these legal developments is scattered about in case reporters, newspapers, and journals, and it has been difficult for the general public - and even lawyers - to obtain an overview of this rapidly evolving body of law. In order to assist interested members of the public, press, and the bar, we provide this compilation and analysis of recent court rulings on terrorism-related matters. In times of national crisis, the executive branch and Congress traditionally implement measures in the name of security that expand the power of the government and contract the civil liberties of citizens - and, to a far greater degree, non-citizens. While the courts have traditionally served as a check on abuses of power by the political branches, they also have a strong tradition of deferring to the political branches on matters of national security. The period following the September 11, 2001 attacks has proven no exception to these general rules. One trend that we identify in this paper is an increased willingness on the part of the government to resort to what may be pretextual grounds for detaining those whom it wishes to investigate for terrorist ties but for whom it lacks the probable cause required under the Fourth Amendment to |