Justice at Stake: What Role for the Courts in the War on Terror?
FOR IMMEDIATE RELEASE
July 3, 2008
CONTACT: Justice at Stake
Charles W. Hall, of Justice at Stake,
What Role for the Courts in the War on Terror?
A Summary of Recent Developments
A Justice at Stake Backgrounder
WASHINGTON - July 3 - Ever since September 11, Americans have struggled to reconcile a stepped-up fight against terrorism with our proud heritage of Constitutional liberties. In nearly seven years, the courts have often—but not always—been deprived of the authority and independence they need to protect our constitutional liberties and hold the government accountable.
As Independence Day approaches, it’s worth taking stock of recent legislation and court decisions that have revitalized the debate over the role of our courts in this long-term struggle. As Justice Sandra Day O’Connor wrote in Hamdi v. Rumsfeld, a "state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."
1. Boumediene v. Bush. On June 12, the Supreme Court, in the latest of a series of cases related to detainee rights, again limited the power of the executive to remove Guantanamo detainee claims from federal court jurisdiction. The 5-4 opinion found that detainees may file habeas corpus petitions, seeking an impartial court review of their imprisonment.
This ruling reaffirmed the "great writ" of habeas corpus, which has checked government power to arbitrarily imprison people for nearly 800 years. "The laws and Constitution are designed to survive, and remain in force, in extraordinary times," wrote Justice Anthony M. Kennedy. "To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say ‘what the law is.’ "
2. Other detainee cases. Since the Boumediene ruling, a federal court in Washington, D.C., has ordered that Husaifa Parhat, a Chinese Muslim captured in Afghanistan, be released or given a new hearing. The court cited a lack of evidence against Parhat. Other Guantanamo cases are pending.
Courts have yet to rule whether habeas and other due process rights extend to detainees held elsewhere around the world, such as at a U.S. air base in Bagram, Afghanistan.
A series of bills have been introduced in the 110th Congress that would affect the extent of federal judicial review in national security matters.
1. Overhaul of Foreign Intelligence Surveillance Act (FISA) – House legislation to update FISA was approved June 20. It would allow the government to eavesdrop, without a court-issued warrant, on foreigners who may be communicating with people in the United States.
The bill also would grant retroactive immunity to previous domestic wiretapping, effectively terminating lawsuits against telecommunications companies that aided the government. Senate action is scheduled July 8, and the FISA overhaul is expected to pass.
2. State Secrets Protection Act – This bill would prevent civil lawsuits from being automatically dismissed when the government claims that state secrets would be exposed. Instead, judges would evaluate government claims by reviewing sensitive evidence in secure settings. The bill also provides for congressional oversight.
The bill, which responds to the executive branch’s growing use of the state secrets privilege, has advanced out of the Senate Judiciary Committee. Attorney General Michael Mukasey has urged the President to veto it, and it is not expected to move forward during the 110th Congress.
3. National Security Letters Reform Act of 2007 – "National security letters," issued by the Executive Branch, give law enforcement officials access to personal information without a court-issued warrant. The bill would allow the FBI to use the letters only if an authorized official certifies "specific and articulable facts" that the information sought is likely related to foreign intelligence activities.
It would also create additional privacy protection, and allow citizens to sue if they are harmed by improper use of national security letters. Responding to Justice Department Inspector General reports of widespread privacy abuses, a House Judiciary subcommittee approved the bill June 24. Further action is uncertain.
4. Specter-Leahy Amendment to the 2008 Defense Authorization Act – The proposed amendment sought to restore detainees’ habeas corpus petitions by scrapping a provision in the Military Commissions Act that prohibits judicial review of such claims. A filibuster threat blocked the amendment in September 2007.
5. Boumediene Jurisdiction Correction Act – Introduced immediately after the Supreme Court’s Boumediene ruling, this bill would give military courts, not federal courts, exclusive jurisdiction to hear habeas petitions from Guantanamo detainees. Prospects for this and similar expected legislation are unclear.
To learn more about civil liberties, the fight against terrorism and the role of fair and impartial courts, please see the following resources:
• "Courting Danger: How the War on Terror Has Sapped the Power of Our Courts to Protect Our Constitutional Liberties," Justice at Stake Campaign.
• "Twelve Steps to Restore Checks and Balances," Brennan Center for Justice.
• "A Critique of National Security Courts," The Constitution Project.
• "In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts," Human Rights First.
Justice at Stake is a nonpartisan national campaign of 50 partners working to keep our courts fair, impartial and independent. The positions and policies of Justice at Stake campaign partners on their own, and do not necessarily reflect those of other campaign partners.