Throughout American history, threats to domestic security have triggered unjustified assaults on civil liberties--instances in which the government was granted (or assumed) summary powers in a moment of crisis, to the inevitable regret of later generations. The diminution of liberty that accompanied these episodes was later understood as an overreaction to frightening circumstances; each is now viewed as a shameful passage in the nation's history.
Today the most basic civil liberty of all - the right to judicial review of executive authority - is uniquely vulnerable due to growing hostility in the political branches of government to the role of judges in our constitutional system.
How does the legislative response to the tragic events at the World Trade Center and the Pentagon diminish our civil liberties?
Judicial review is a cornerstone of our system of government. But the unbearably tragic attacks on the World Trade Center and the Pentagon have led to enactment of an anti-terrorism bill that undercuts the role of the judiciary in scrutinizing executive actions. Among the most objectionable provisions in the USA Act are the following:
· Permits the disclosure of sensitive information about American citizens obtained through grand jury investigations and wiretaps to intelligence agencies without judicial review of the justification for such disclosure;
- Authorizes indefinite detention of non-citizens without meaningful judicial review;
- Minimizes judicial oversight of electronic surveillance by subjecting private Intern et communications to a hollow standard of review;
- Allows the FBI to use its intelligence authority to circumvent the judicial review of the probable cause requirement of the Fourth Amendment.
How has previous anti-terrorism legislation impacted civil liberties?
The enactment of the USA Act provides new urgency for considering the role of the judiciary in curbing the excesses of executive authority in pursuit of politically popular goals. In treating the judiciary as an inconvenient obstacle to executive action rather than an essential instrument of accountability, the USA Act builds on the dubious precedent Congress set five years ago when it enacted a trilogy of laws that, in various ways, deprive federal courts of their traditional authority to enforce the Constitution of the United States.
The first of these three laws was enacted, like the USA Act, in response to an unprecedented act of domestic terrorism--the 1995 bombing of the Federal Building in Oklahoma City. Like this year's anti-terrorism bill, the 1996 The Anti-Terrorism and Effective Death Penalty Act granted the government new powers while at the same time insulating certain enforcement actions - notably death sentences - from meaningful oversight by federal judges.
Within months of the passage of the 1996 anti-terrorism bill, Congress enacted two other laws - the Illegal Immigration Reform and Immigrant Responsibility Act and the Prison Litigation Reform Act - that also shielded from review by neutral judges executive authority over disfavored minorities.
Some of the provisions in these three 1996 laws flatly deprive courts of the authority to hear cases. In others, lawmakers have left only a hollow review, under which federal judges may hear the claims of disfavored litigants but are deprived of the legal means to help them. The result is no due process for some, and distorted process for others.
It is no surprise that the court-stripping movement achieved both its initial and its most recent successes in the context of bills to combat terrorism, nor that it flourished in legislation hostile to two of the least popular groups in our society - immigrants and prisoners. Yet it is precisely because government is most likely to endanger the rights of innocent bystanders when its agents are in pursuit of wrongdoers that judicial oversight is needed. And it is precisely because unpopular minorities fare so poorly in the legislative process that our Constitution anticipates they will have recourse to the courts to protect their interests.
How have the laws enacted in the wake of Oklahoma City affected the lives of those who depend on federal court to vindicate their constitutional rights?
Five years after their enactment, and especially now that the concept of court-stripping has spread to the recent anti-terrorism bill, the time is ripe to assess these 1996 laws. We now know that:
- The Anti-Terrorism and Effective Death Penalty Act, which limits the role of federal courts in hearing constitutional challenges by death row inmates and other state prisoners, has added to the chaos and sloppiness of a capital punishment system so fraught with error that almost one hundred innocent men and women have been sentenced to death.
- The Illegal Immigration Reform and Immigrant Responsibility Act, which restricts judicial review of a range of executive branch decisions regarding legal and illegal immigrants, has shattered families and ruined lives by blocking asylum for individuals fleeing persecution abroad and hastening deportation for minor misconduct.
- The Prison Litigation Reform Act, which withdraws from federal judges procedural tools they need to remedy unconstitutional prison conditions, has contributed to a life-threatening deterioration of prison environments and has had especially dire consequences for the plight of women, children and the mentally ill in prisons.
By undermining the integrity and efficiency of the branch of government established to preserve constitutional rights, Congress has exposed unpopular minorities to the unmerciful vagaries of majority rule, a development that endangers the fundamental rights of all Americans. Without judicial oversight, there is a real danger that the war on terrorism will have domestic consequences that are inconsistent with American values and ideals.