In the immediate aftermath of the September 11 terrorist attacks, our leaders in Washington quickly focused on efforts to apprehend and punish those responsible for the attacks – and to prevent future attacks on the United States and its citizens. This led to a serious national debate over, and recalibration of, the balance between civil liberties and national security. This ten-year debate is ongoing with key areas unresolved.
Legislative and Regulatory Measures
On Capitol Hill, Congress immediately reviewed and revised our national security policies, enacting the USA PATRIOT Act of 2001. This broad legislation included provisions that updated and modernized electronic surveillance laws; facilitated increased cooperation among federal, state and local law enforcement and intelligence agencies and, in some cases, granted more executive power to act on national security measures.
Meanwhile, President George W. Bush led an international military intervention in Afghanistan and acted on a range of apprehension and detention initiatives, redefining (and often narrowing) the rights of immigrants, foreign students, enemy combatants, and detainees. Moreover, Treasury Department officials devised a financial assault on terrorism through public designations of terrorists and terrorist supporters, the freezing of their accounts, and the application of economic sanctions.
While many were supportive of the government’s legislative and regulatory measures, some were concerned that in the haste to make our nation more secure, basic civil and individual liberties were put in peril. The question of how best to balance civil liberties and national security was prominently borne out in a number of debates involving executive power in the past few years, including detention of prisoners at Guantanamo Bay, restricting material support for terrorists, and increased use of new surveillance warrants. This debate also played out in other contexts, from the creation of the Department of Homeland Security to the role of the Transportation Security Administration in protecting airports.
Detention of Prisoners at Guantanamo Bay
The Guantanamo Bay detention facility was established in 2002 by President Bush to hold detainees from the wars in Afghanistan and Iraq. Since its establishment, the policies of the United States concerning the facility have been scrutinized and challenged on numerous issues including: the unavailability of habeas relief for detainees, the inadequate access to effective counsel and inadequate Congressional oversight of tribunals. The Bush Administration argued that Guantanamo Bay could be considered outside U.S. legal jurisdiction and therefore the detainees were not entitled to the rights afforded prisoners in the United States, including habeas corpus. In addition, the Administration argued that the status of the detainees was such that the Geneva Conventions dis not apply. After a series of U.S. Supreme Court cases, culminating in the 2008 Boumediene v. Bush, the High Court reaffirmed the rights of detainees in American custody in Guantanamo Bay, Cuba, to challenge their indefinite detention. Notably, Guantanamo was just one entity in a new series of prisons, including a detention facility at Bagrahm Air Force in Afghanistan (which now holds more prisoners than at Guantanamo and which has been similarly criticized for detaining persons in violation of international law).
Significant debate has also focused on the executive branch’s use of so-called “enhanced” interrogation techniques on prisoners, including waterboarding. One key debate focused on whether these techniques constituted torture.
In addition, these cases highlighted the real tension in determining the forum for prosecuting alleged enemy combatants and terror-related detainees arrested off of U.S. soil. While a suspect arrested in the United States is undoubtedly eligible for trial in a U.S. court, there is a very real debate over whether someone captured abroad by U.S. forces is entitled to be tried in the U.S. One solution, military tribunals and commissions, has been favored by both Presidents Bush and Obama. The key questions of this debate are whether detainees will get due process of law, how much due process is owed to such a detainee in the first place, what does international law require the U.S. to provide these so-called “enemy combatants” and whether and how U.S. courts will supervise, if at all, the administration of justice within this extra judicial system of trials and detention.
Providing Material Support for Terrorism
One of the government’s most frequently used tools in the fight against terrorism is the provision of federal law that prohibits material support or resources to individuals or entities that facilitate, plan or engage in terrorism. For instance, in 2009, the Holy Land Foundation for Relief and Development, once considered the largest Muslim charity in the U.S., was shut down by the government for funding Hamas, which has been designated a terrorist group by the U.S. government. Some consider this provision crucial to combatting terrorism, arguing that even those that support a legitimate arm of an organization that promotes or engages in terrorism grants the organization legitimacy and frees up resources for the organization to engage in terrorist activities. Others have challenged the provision as being too vague and overbroad, and violating the free speech rights of Americans. In 2010, the U.S. Supreme Court (Holder, et. al. v. Humanitarian Law Project, et. al,) held that the provision was constitutional when the executive branch sought to limit technical training of a designated terrorist group.
The Use of Surveillance Warrants
A number of years after 9/11, it was revealed that the Bush Administration was engaging in warrantless wiretapping of U.S. citizens in their investigations of terrorist activity. Congress amended the Foreign Intelligence Surveillance Act to ease and expand the executive branch’s use of electronic surveillance. While some thought this law was a needed change in order to combat terrorism in today’s world of modern communication, others believed that the ease on warrant requirements, the leniency on recordkeeping and the immunity for telecommunications companies violate the individual liberties of Americans.
ADL’s View of the Balancing of Individual Rights and National Security
In its dual role as an advocate of civil rights and liberties and an aggressive supporter of law enforcement’s crucial role in protecting democracy and of the United States government’s important efforts to fight domestic and international terrorism, ADL is uniquely qualified to analyze issues of national security and individual rights.
For decades, the League has been at the forefront of arguing for tougher anti-terrorism laws and monitoring the actions of extremist groups domestically and worldwide, including groups identified by the United States as foreign terrorist organizations. Such groups pose a threat to the very qualities that allow a diverse society to flourish as well as to the physical safety and security of Americans and others throughout the world. At the same time, ADL is an advocate of the First Amendment rights guaranteed under the United States Constitution.
ADL does not view balancing the two objectives of preserving civil liberties and securing national security as a zero sum game and has advocated for national policies that recognize the harsh reality of terrorism while maintaining key civil liberties protections, such as preserving the right to habeas corpus and ensuring that key provisions of the USA PATRIOT Act had expiration dates (sunset provisions) that would allow the debate over their propriety to continue anew. ADL supported enactment of the PATRIOT Act in October 2001 because we firmly believed that law enforcement and intelligence officials needed additional tools to identify, track, and prosecute terrorists and their supporters, and to prevent future attacks. From the outset, we stressed the importance of sunset provisions for certain parts of the act, and called for continuing robust Congressional oversight, accountability and transparency in implementing the powers granted under the Act, appropriate administrative reporting requirements and opportunities for meaningful judicial review of these provisions.
Some of ADL’s Key Actions:
- Advocated for Congress to recalibrate the balance between security and individual rights following the rash of hate violence in the aftermath of the September 11 terrorist attacks.
- Supported passage of the USA PATRIOT Act – but called for key oversight and sunset provisions.
- Provided specialized training and expertise on extremism, hate groups, domestic and international terrorism, and civil liberties to high-level law enforcement personnel through ADL's Advanced Training School, and regional trainings, often with U.S. Attorneys.
- Conducted, in partnership with the United States Holocaust Memorial Museum (USHMM), Law Enforcement and Society (LEAS) training, which draws on the history of the Holocaust to provide law enforcement professionals with an increased understanding of their relationship to the people they serve and their role as protectors of the Constitution.
- Actively lobbied for strengthening America’s anti-terror laws to enhance law enforcement’s ability to prevent terrorism and meet a real and present threat.
- Addressed xenophobia and restrictive enforcement-only immigration initiatives. The League has strongly opposed proposals to direct local law enforcement officials to enforce federal immigration laws on the grounds that involvement of local authorities in these efforts would undermine public trust and obstruct effective community policing.
- Submitted amicus briefs arguing against indefinite detention at Guantanamo Bay, for full habeas rights of American citizens and for due process rights of enemy aliens detained in Iraq and Afghanistan. ADL believes that access to counsel and knowledge of the charges being brought against the accused are fundamental constitutional principles.
- Supported the ban on fundraising for designated foreign terrorist organizations, enacted as part of the Anti-Terrorism and Effect Death Penalty Act of 1996 (AEDPA), and has continued to file amicus briefs in successful litigation supporting the constitutionality of those aspects of the AEDPA.
- Submitted a friend-of-the-court brief to the U.S. Supreme Court in 2009 in a case entitled, Holder, et. al. v. Humanitarian Law Project, et. al, defending the constitutionality of material support for terrorism provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996.
- Continued to raise awareness about the terrorist threat through ADL’s Leon and Marilyn Klinghoffer Memorial Foundation and developed educational, political, and legal strategies to enhance the fight against terror worldwide with the support of the Foundation and ADL’s William and Naomi Gorowitz Institute on Terrorism and Extremism.