Upsetting Checks and Balances: Congressional Hostility to Courts in Times of Crisis, Statement of Laura W. Murphy

November 1, 2001 12:00 am

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WASHINGTON — Today’s forum on the effects of the new anti-terrorism law and the release of the ACLU’s report on the history and danger of court-stripping could not have come at a more opportune time. The role of the judiciary in preserving and promoting individual rights has been much maligned in recent years and these sentiments were echoed significantly in many of the court-stripping measures of last week’s new anti-terrorism law.

Hopefully, this forum and report will help inform both the public and the government about the importance of vigorous judicial supervision over executive and congressional action and the problems with the new anti-terrorism measures.

An independent and politically neutral judiciary is the armored core of our democracy and our way of life. When the winds of political expediency threaten to blow away the rights of the unpopular viewpoint or the minority community, the judiciary is in place to provide a counter-weight to the crushing pressure of the majority. When the judiciary is cut out of the pursuit of justice and fairness – the ultimate goals of our political system – among the victims will inevitably be the Bill of Rights and the unassailable freedoms it guarantees to every person living within our borders.

Unfortunately, the so-called USA Patriot Act contains a large number of provisions that essentially destroy the check placed by the courts on summary executive action.

Law enforcement has been given virtually unfettered access, with little or no judicial review, to private Internet communications, credit reports, other sensitive financial information and student records. The courts are now powerless to stop the seven-day detention of wholly law abiding non-citizens and can pose little challenge to their indefinite detention. The law also permits, without crucial judicial supervision, the disclosure to intelligence organizations of potentially damaging or harmful information obtained during grand jury proceedings.

Court-stripping isn’t the only problem with the new law. It contains measures that will put the Central Intelligence Agency back into the business of spying on Americans, a practice which prompted the 1976 Church Committee to declare the CIA a “rogue agency” and demand that stopgaps be put in place to prevent the foreign intelligence community from ever again using its powers against ordinary, law-abiding American citizens for partisan or political ends.

Also, the definition of terrorism has been expanded under the anti-terrorism law. It has been broadened to include “domestic” terrorism, a term so vague that it threatens to include political dissent or protest. For instance, the almost comical scene of a PETA protester throwing a pie at the Secretary of Agriculture could now be prosecuted as a terrorist offense.

The worst part of the USA Patriot Act is that its provisions are unlikely to draw the ire of the average American. As in past times of crisis, the minority is the most likely target of government excess. It is this reality that makes bill’s court-stripping provisions so potentially harmful.

The courts exist specifically to give voice to the minority and were created because the Framers were well aware of the ease in which an unpopular group or viewpoint could find itself muzzled and persecuted by the majority.

Indeed, America was founded upon a minority perspective. The concept of life, liberty and the pursuit of happiness as innate rights, separate from the will of the monarch or the despot, had little currency elsewhere in the world. It was this awareness among the Framers of the importance of the minority perspective that led directly to the ratification of the Bill of Rights. And it was this awareness that led to the creation of a federal court system whose main purpose was to place limits on the majoritarian rule of Congress and the potentially tyrannical rule of the executive branch.

History is replete with lessons illustrating the folly of the executive or legislative branch keeping the judiciary in the dark. In the 1950s and 60s, the FBI launched COINTELPRO, a shadowy and ideologically partisan campaign of espionage, blackmail and harassment against American citizens. The CIA followed suit with its “Operation Chaos,” a program that collected information on upwards of 7,000 anti-war protesters and other suspected “subversives.” Even the military got in the game with its cloak-and-dagger, Cold War-era CONUS operation.

In response to these abuses of executive power, the judiciary was once again given teeth to oversee the investigative and surveillance activities of law enforcement and the intelligence community. This oversight has, in many ways, been all but stripped away by the USA Patriot Act.

The ACLU hopes that this report and today’s forum will help shed some light on the value of our judiciary and extinguish some of the unwarranted hostility in this country toward the courts. Security can only be reconciled with the necessity of American freedom if the courts are strong and the rights of the individual are protected. The tragedies of September 11th have challenged our freedom as never before. We must be vigilant that the implementation of the anti-terrorism law not challenge it further.

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