By Dr. Marvin Zalman
(Excerpted from Criminal Procedure: Constitution and Society 5e by Marvin Zalman, Copyright 2007 Pearson Education, Inc. Upper Saddle River, NJ.)
Order versus Justice
Five years after the September 11, 2001 airplane hijackings and suicide -terror attacks on New York’s World Trade Center and the Pentagon by radical jihadists that took almost three thousand lives, the “war on terror” has polarized the nation and has put the tension between order in liberty into sharp relief. The immediate response to 9/11 was a military campaign authorized by Congress that wrested Afghanistan from Taliban control and suppressed the al Quaeda movement, which was responsible for 9/11 and earlier attacks like the 1993 World Trade Center bombing.
The domestic campaign involves defensive homeland security like increased airport security and a focus on terrorism investigation and prosecution. Indeed, training local law enforcement agencies and the creation of Local-Federal Anti-terror Partnerships has become an important element of contemporary criminal justice.1 The foreign campaign included the necessary Afghanistan war and the ill-conceived war in Iraq. Now in its fourth year, the Administration has admitted that Iraq was not formerly a sponsor of Islamist terrorism. The lack of plans for controlling the country after a swift but superficial military victory, led to unrest, continuing insurgency, and fears of civil war or the rise of a radical Islamist state.2 The controversy over the Iraq war is beyond the scope of this text, except insofar as the war has generated issues relevant to criminal procedure and important Supreme Court rulings on issues of liberty and justice.
Two models for Government Responses to terrorism
The "Criminal Model"
It is useful to contrast the “war model” and “criminal model” metaphors as paradigms for government action in responding to terror threats. The “criminal model” emerged painstakingly over centuries of English and American constitutional history. It is grounded due process concepts originating in Magna Carta’s (1215) “law of the land” formula : “No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers by the law of the land."3 It is a model of constitutional balance and that limits state action only against those who have committed acts previously defined as crimes. It requires the criminal justice apparatus to act under law and apply constitutional guarantees like search warrants, the privilege against self-incrimination, and trial rights. The criminal model gives persons the liberty to act free of state spying or constraint until their acts arouse suspicion to believe they have violated the law. The chief goals of the criminal model are retribution for and deterrence of criminal behavior.
The "War Model"
When a country goes to war, this all changes. The goal of the “war model” is prevention.4 Under this “new ‘paradigm of prevention’ . . . prosecutors [have used] every tool at their disposal to investigate, observe and detain potential terrorists before they strike."5 In times of war civil liberties are curtailed. The press is more circumspect; military censorship is imposed; certain areas are off limits; freedom of movement is curtailed; intelligence agencies are given a freer hand to probe anyone’s secrets.
Historically, Americans Risk Losing Civil Liberties in Wartime
Two risks to civil liberties arise out of war situations, first that under the guise of emergency, powers concentrated into the hands of government agents are misused, and second, that when the emergency ends, liberties formerly enjoyed are permanently eroded. A brief survey of American history indicates that virtually every war has been accompanied not only by necessary restrictions on individual freedoms, but on overreactions, often hysterical, that have unnecessarily curtailed the liberty of Americans.
The undeclared naval war by Britain and France on the fledgling United States in the 1790s led President Adams’ Federalist controlled Congress to pass the “Alien and Sedition Laws”—clear violations of the First Amendment.
Prosecutions under the law, son after repealed, were politically motivated.6
President Lincoln suspended the writ of habeas corpus in thousands of cases during the Civil War. Although historians have granted the necessity and even the restraint of these acts, the Supreme Court repudiated this unilateral presidential power after the War ended.7
A World War I sedition law made criticism of the military draft a crime. Sedition prosecutions stifled free speech. In reaction, the ACLU (American Civil Liberties Union) was formed and in a series of landmark cases, the Supreme Court strengthened First Amendment freedoms, limiting the ability of government to stifle unpopular political expression.8
Fear of bolsheviks in post-World War I turmoil, a deadly Wall Street bombing, and assassination threats in 1919 led to the “Palmer Raids”—round-ups of thousands of people around the country, mostly leftist or pro-labor, organized by J. Edgar Hoover under the authority of Attorney General A Mitchell Palmer.9
More than a hundred-thousand Japanese-Americans were interned for the duration of World War II in a tragic overreaction to the Pearl Harbor attack , a move upheld by the Supreme Court.10
President Roosevelt authorized national security wiretapping and eavesdropping on his authority, a necessary action that led to later abuses that were curbed by the Foreign Intelligence Surveillance Act (FISA).11
During the Korean War, President Truman nationalized the steel industry in order to break a strike that threatened war production. The Supreme Court swiftly ruled that this was an unconstitutional extension of the president’s war powers.12
The longest and most severe threat to civil liberty was the rise of the “national security state” for at least half of the twentieth century in an effort to thwart the real threats of fascism, Naziism, and expansionist Soviet communism under Stalin. Fascism and the Axis Powers were defeated both by military victories in World War II and by post-war assistance that painstakingly built constructed democratic regimes in Japan, Germany and Italy. The long struggle to contain communist global expansion, warped American politics and justice in the 1950s, with political trials, loyalty oaths, Sen. Joseph McCarthy witchhunts (which missed real Soviet spies), artists’ blacklisting, local police department “red squad” snooping, CIA spying on Americans within the country, FBI wiretapping Martin Luther King, Jr. And civil rights leaders, and a climate of political fear that equated a belief in racial equality or other liberal opinions with communism by the FBI.13
The anti-Vietnam War protests of the 1960s produced repressive political crimes and political trials, that carried over into the wiretapping abuses of the Nixon Administration resulting in the president’s resignation under threat of impeachment.14
After these emergency periods passed, repressive laws were typically repealed or declared unconstitutional, and excessive law enforcement behavior was curbed.
The war Model Impedes Effective Counterterrorism
The current crisis has generated vituperative politics. The administration and its supporters picture opponents to the as appeasers and perhaps traitors in a continuing and possibly decades-long war on terror.15 This conflates the reaction to the ongoing sectarian violence in Iraq to the larger issue of a complex international jihad movement without any central organization.16 The war metaphor for the anti-terror campaign, according to one expert, actually makes it more difficult to think clearly about terrorism and to develop effective counterterrorism strategies.17 The terror bombings in Madrid, Bali, and London in recent years, for example, were not planned by a central al Qaeda organization, which according to counterterrorism experts, is no longer what it was before 9/11, but by diffuse groups infused with the Islamist ideology, that is far removed from mainstream Islam.
The Administration claims that the United States has been free of terror attack since 9/11/01 because of the Iraq war and the application of questionable methods including torturous interrogation techniques.
Yet, terrorism expert Prof. that “the threat posed by home grown or imported terrorists . . . has been massively exaggerated."18 A true al Qaeda sleeper cell has never been found in the United States, despite strenuous FBI efforts. Given our porous borders and far from perfect homeland security, it is more plausible to attribute the lack of attack for five years to a “severely depleted al Qaeda” and to the estimate of experts that many Islamists who oppose Western values do not support terror attacks as an effective means of advancing their aims. This does not mean that law enforcement vigilance is unnecessary. After all, “thousands of apparent terrorists have been rounded, or rolled, up overseas with U.S. aid and encouragement."19 It does mean that we must think more clearly about the nature of terrorism and be mindful of such costs to civil liberties as, for example, the 30,000 “national security letters” issued by the FBI without judicial warrants every year, forcing businesses and other institutions “to disclose confidential information about their custimers without telling anyone they have done so. That process has generated thousands of leads that, when pursued, have led nowhere.”20
Law Enforcement and Police Work are Keys to Countering Terrorism
If, as The 9/11 Commission Report21 makes clear, the jihadist enemies of modern, secular states in the global economy are grounded in extremist views of Islam and in social and economic malaise, it would seem that classic counterinsurgency tactics, that rely heavily on police techniques of monitoring, infiltration, interdiction, and prosecution, along with material support for average people not caught up in terrorism, and the judicious use of the military, is the way to successfully counter terrorism.22 It is, after all, patient, meticulous police work in Britain and elsewhere that identified and monitored a “plot by a smallish, non-state group of criminal terrorists” uncovered in the Summer of 2006, who planned to destroy airlines with explosives disguised as carry-on liquids.23 The understanding that law enforcement is a key to fighting terrorism is reflected in the Anti-Terrorism Advisory Councils, involving federal, state, and local governments and the private sector, set up by the Justice Department to coordinate anti-terrorism training and action.24 The bulk of this activity focuses on police and prosecution.
Again, any extended discussion of operational topics is not the subject matter of criminal procedure. To the contrary, however, many events that have occurred in the “war” on terror have implicated central questions of constitutional criminal procedure. This is especially true as the Supreme Court has spoken forcefully in support of the rule of law in response to Administration actions that have sought to extend executive power to unprecedented levels. Indeed, a guest scholar at the prestigious, middle-of-the road Brookings Institution, has labeled Administration efforts as “an extralegal terrorism war."25 Acknowledging the need for “spying at home, detaining terror suspects, and conducting tough interrogations” that the government will need to engage in for many years to come, this author criticizes President Bush and his administration for not “making proper legal provisions for those practices.”
Works cited in "Order and Liberty in a Time of Terror
1Stephan A. Loyka, Donald A. Faggiani, and Clifford Karchmer, Protecting Your Community From Terrorism: The Strategies for Local Law Enforcement Series — Vol. 4: The Production and Sharing of Intelligence (U.S. Department Office of Community Oriented Policing Services (COPS; Police Executive Research Forum (PERF), 2005).
2Thomas E. Ricks, Fiasco: The American Military Adventure in Iraq (New York: Penguin, 2006; Larry Diamond, Squandered Victory: The American Occupation and the Bungled Effort to Bring Democracy to Iraq (New York: Times Books, 2006).
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39 in C. Stephenson and F. G. Marcham, Sources of Constitutional History (New York: Harper & Row, 1937), 121.
4See George C. Harris, “Book Review: Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security ,” Cornell International Law Journal 36:135-150 (2003) (Review of David Cole & James X. Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, Second Edition (New York: The New Press, 2002).
5Mark Hamblett, “Terrorism Cases Put Judges Front and Center in Terror Cases,” New York Law Journal, July 7, 2003, 1.
6David McCullough, John Adams (New York: Simon & Schuster, 2001; James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (New York: Simon & Schuster, 2002).
7Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York : Oxford University Press, 1991).
8Richard Pollenberg, Fighting Faiths: The Abrams Case, The Supreme Court, and Free Speech (New York: Viking, 1987).
9Roberta Strauss Feuerlicht, America's Reign of Terror: World War I, the Red Scare, and the Palmer Raids (New York: Random House, 1971)
10Peter H. Irons, Justice at War (New York: Oxford University Press, 1983; Korematsu v. United States (1944).
11Victor S. Navasky, Kennedy Justice (New York: Atheneum, 1971).
12Alan F. Westin, The Anatomy of a Constitutional Law Case: Youngstown Sheet and Tube Co. v. Sawyer: The Steel Seizure Decision (New York: Macmillan, 1958).
13Stanley I. Kutler, The American Inquisition: Justice and Injustice in the Cold War (New York: Hill and Wang, 1982; Frank Donner, Protectors of Privilege: Red Squads and Police Repression in Urban America (Berkeley: University of California Press, 1990). David Wise, The American Police State (New York: Random House, 1976; James MacGregor Burns and Stewart Burns, A People’s Charter: The Pursuit of Rights in America (New York; Alfred Knopf, 1991).
14M. Zalman, “The Federal Anti-Riot Act and Political Crime: The Need for Criminal Law Theory,” Villanova Law Review 20 (1975):897-937; Stanley I. Kutler, The Wars of Watergate (New York: Knopf, 1990).
15H. D. S. Greenwood, “The Reality in Iraq,” Boston Globe, September 12, 2006.
16Scott Shane, “Terrorism Experts Say Focus on Al Qaeda Misses a Broader Threat,” New York Times, Aug. 13, 2006.
17Philip B. Heyman, Terrorism, Freedom, and Security: Winning Without War (Cambridge, Mass.: MIT Press, 2003).
18John Mueller, “Is There Still a Terrorist Threat? The Myth of the Omnipresent Enemy,” Foreign Affairs 85(Sept/Oct 2006):2-8, 4.
21National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report [Authorized Edition] (New York: Norton, n.d.), 48-53.
22Ricks, Fiasco, 250-51, 264-67, 418-21.
23McClatchy-Tribune News Service, Editorials on Failed Terror Plot: Monitor (McAllen, Texas), August 11, 2006; Alan Cowell an
d Dexter Filkins, “Terror Plot Foiled; Airports Quickly Clamp Down,” New York Times, Aug. 11, 2006.
24Loyka, et al., Protecting Your Community; The Department of Justice's Terrorism Task Forces: Evaluation and Inspections Report I-2005-007 (Office of the Inspector General, June 2005), accessed September 17, 2006 at http://www.usdoj.gov/oig/reports/plus/e0507/index.htm
25Jonathan Rauch, “Comment: Unwinding Bush.” The Atlantic, October 2006 (emphasis added).
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