New Anti-Terrorism Law Continues Dangerous Trend Of Stripping Federal Judiciary Of Authority

Document Date: November 1, 2001


WASHINGTON — At first glance, the anti-terrorism legislation recently signed into law by President Bush appears to only be a means to give law enforcement officials the necessary tools to find terrorists and prevent future attacks. But in reality, the USA Patriot Act continues an alarming trend known as court-stripping-removing authority from the judiciary-in times of crisis. The origins of this trend are examined in Upsetting Checks and Balances: Congressional Hostility Toward the Courts In Times of Crisis, a report released today at a forum hosted by the American Civil Liberties Union.

“While we all want our government to prevent future tragedies, we cannot allow our outrage to serve as justification for laws that trespass on our rights under the Constitution,” said Anthony D. Romero, Executive Director of the ACLU. “As it has done in times of past tragedy, the government responded by passing legislation that reduces or eliminates the process of judicial review and erodes our civil liberties.”

Upsetting Checks and Balances chronicles the history of assaults on civil liberties through laws aimed at increasing our collective security. The report focuses specific attention on the legislative response to the Oklahoma City bombing. In the aftermath of the bombing, several measures were signed into law that significantly stripped the Federal judiciary of its authority to enforce the Constitution. Recent enactment of the USA Patriot Act, in response to the events of September 11, 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 recently passed USA Patriot 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,” said Ron Weich, Esq., a partner with Zuckerman Spaeder LLP and author of Upsetting Checks and Balances.

Like this year’s anti-terrorism bill, the 1996 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 the 1996 court-stripping 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.

“The series of 1996 laws examined in Upsetting Checks and Balances have produced tragic stories of unintended victims,” said Laura W. Murphy, Director of the ACLU’s Washington National Office. “In passing laws aimed at protecting our security, the government must consider the harm that such laws can and will cause-families torn apart by deportation, long-time legal residents deported to a country they have never known and the execution of innocent people-are just a few examples of the consequences.”

Laurie Kozuba, Founder and Director of Citizens & Immigrants for Equal Justice, personally experienced the consequences of these dubious laws. Laurie never planned on being an activist. But when her husband, a long-time legal permanent resident from Canada, was ordered deported under the 1996 Immigration Acts, she was compelled to start asking questions and demanding answers about laws, passed in the wake of tragedy, that tread heavily on civil liberties.

“I am just the average American citizen, formerly a housewife, now an activist, who cannot stand quietly by while my government enacts and enforces laws that are unfair, unbalanced and just plain mean,” Kozuba said.

The new ACLU report is attached, and additional information about the anti-terrorism laws can be found on the ACLU’s website at:

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