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Forfeiting `Enduring Freedom' for `Homeland Security':
A Constitutional Analysis of the USA PATRIOT Act
and the Justice Department's Anti-Terrorism Initiatives*
by John W. Whitehead** and Steven H. Aden***
51 American University Law Review 1081-1133 (2002).

*    Copyright © 2002: The Rutherford Institute, Charlottesville, Virginia.
**   President, The Rutherford Institute, Charlottesville, Virginia. B.A., 1969; J.D., 1974, University of Arkansas.
***  Chief Litigation Counsel, The Rutherford Institute, Charlottesville, Virginia. B.A., 1985; J.D., 1989, Georgetown University Law Center.


Beginning of text



  1. After the Attacks: Bush's Remarks to Cabinet and Advisers, N.Y. Times, Sept. 13, 2001, at A16.

  2. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act), Pub. L. No. 107-56, 115 Stat. 272 (2001).

  3. See id. § 213, 115 Stat. at 285-86 (allowing issuance of warrants with delayed notice to suspected individuals if there is reasonable cause to believe that notification would have an adverse effect on the attempted law enforcement effort).

  4. See id. §§ 206-207, 115 Stat. at 282 (amending the Foreign Intelligence Surveillance Act of 1978 to allow more expansive protection of secrecy for those carrying out electronic surveillance).

  5. See id. §§ 201-204, 115 Stat. at 278-81 (providing for enhanced surveillance procedures).

  6. Alison Mitchell, Cheney Rejects Broader Access to Terror Brief, N.Y. Times, May 19, 2002, at A1.

  7. Jennifer Lee, Upgraded Driver's Licenses Are Urged as National IDs, N.Y. Times, Jan. 8, 2002, at A13; Robert O'Harrow, Jr., States Seek National ID Funds: Motor Vehicle Group Backs High-Tech Driver's Licenses, Wash. Post, Jan. 14, 2002, at A4; Robert O'Harrow Jr. & Jonathan Krim, National ID Card Gaining Support, Wash. Post, Dec. 17, 2001, at A1; Robert O'Harrow Jr., States Devising Plan for High-Tech National Identification Cards, Wash. Post, Nov. 3, 2001, at A10; New Driver's Licenses Study Underway, Associated Press, Jan. 8, 2002.

  8. In an NBC News/Wall Street Journal poll, seventy-eight percent of those polled stated they would accept new security laws, even if it meant fewer privacy protections, and seventy-eight percent stated they would support surveillance of Internet communications. NBC News/Wall Street Journal: 72% Say U.S. Is Moving in the Right Direction, The Hotline, Sept. 17, 2001. Congressional leaders from both parties have articulated this sentiment. House Minority Leader Richard A. Gephardt (D-Mo.) stated two days after the attacks, "we're in a new world where we have to rebalance freedom and security." Eric Pianin & Thomas B. Edsau, Terrorism Bills Revive Civil Liberties Debate, Wash. Post, Sept. 14, 2001, at A16. Senate Minority Leader Trent Lott (R-Miss.) echoed this sentiment, stating, "when you're at war, civil liberties are treated differently." Id.

  9. Don Van Natta & Lizette Alvarez, A Day of Terror: Attack on Military, N.Y. Times, Sept. 12, 2001, at A5.

  10. Numerous incidents of cutaneous and inhalation anthrax illness, apparently contracted primarily as a result of exposure through the mail, occurred in diverse locations throughout October and November of 2001, shortly after the September 11th terrorist attacks. These incidents were reported chiefly at print and television media locations, post office facilities, and the U.S. Capitol. See generally Florida Man Dies After Contracting Rare Form of Anthrax; first U.S. death in 25 years, Associated Press, Oct. 5, 2001; Officials: Tests Show Presence of Anthrax in Second Florida Man and at Newspaper Building, Associated Press, Oct. 8, 2001; NBC anthrax case leaves New York jittery, Associated Press, Oct. 13, 2001 ("New Yorkers streamed into emergency rooms after an assistant to [NBC News anchor Tom] Brokaw was infected with anthrax, intensifying fear about bioterrorism in a city and nation already on edge"); 32,000 Took Medicine as Anthrax Safeguard, Wash. Post, Nov. 9, 2001, at A10; Spores Found in More Congressional Offices, Wash. Post, Nov. 11, 2001, at A13; Fourth Letter Discovered by FBI: Envelope Addressed to Senator Leahy, Found in Quarantined Mail, Similar `In Every Respect' to Others, Wash. Post, Nov. 17, 2001, at A1.

  11. Korematsu v. United States, 323 U.S. 214 (1944), is perhaps the most notorious example. Korematsu upheld the conviction of a Japanese-American citizen for violating an exclusionary order and determined that the order was justified by the exigencies of the war and the perceived threat to national defense and safety. Id. at 223. After the war, it became clear that Japanese-American citizens had not posed any significant threat to the nation. In fact, Japanese-American soldiers were among the most highly decorated in the American war effort. A combat battalion consisting of Japanese-American soldiers, the 442nd Regimental Combat Team was highly effective in the Southern European Campaign, and its members included twenty Congressional Medal of Honor recipients and fifty-two Distinguished Service Crosses. See Research on 100th/442nd Regimental Combat Team, National Japanese-American Historical Society, at Also notorious from the First World War era are United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407 (1921), which upheld the revocation of a socialist newspaper's second-class mailing privileges for anti-war speech that would be labeled as core protected political speech today, and Schenck v. United States, 249 U.S. 47, 51 (1919), which ruled against a First Amendment challenge to a conviction for conspiracy to distribute a circular denouncing conscription "in impassioned terms."

  12. William H. Rehnquist, All The Laws But One 224 (1998).

  13. A sunset provision is a legislative control that specifies the lifetime of a piece of legislation or, most typically, an agency. William F. Fox, Jr., Understanding Administrative Law 44 (4th ed. 2000).

  14. See supra notes 3-5 and accompanying text (outlining how the Patriot Act has increased the authority of law enforcement officials and resulted in the infringement of civil liberties).

  15. Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sept. 14, 2001).

  16. The President may only utilize those powers and authorities made available in national emergencies specifically cited within the proclamation or a subsequent published executive order. 50 U.S.C. § 1631 (1994).

  17. Proclamation No. 7463, 66 Fed. Reg. 48,199.

  18. See id. (declaring the intent of the President to utilize, inter alia, 14 U.S.C. § 331 (1994), which allows the Secretary to order any regular officer on the retired list to duty and 10 U.S.C. § 12302 (1998), which provides for the creation of the "ready reserves").

  19. See supra notes 15-16 and accompanying text (documenting the active role taken by the President in combating terrorism); see also infra notes 25-26 and accompanying text (discussing the congressional involvement in the fight).

  20. Homeland Defense Before the Senate Comm. on the Judiciary, 107th Cong. (2001) (Sept. 25, 2001) [hereinafter Homeland Defense Testimony] (written testimony of the Honorable John Ashcroft, Attorney General).

  21. DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism Before the Senate Comm. on the Judiciary, 107th Cong. (2001) (Dec. 6, 2001) [hereinafter DOJ Oversight Testimony] (written statement of the Honorable John Ashcroft, Attorney General).

  22. Homeland Defense Testimony, supra note 20.

  23. DOJ Oversight Testimony, supra note 21.

  24. Id.

  25. Homeland Defense Testimony, supra note 20.

  26. The meteoric passage of the Patriot Act is remarkable. H.R. 3162 was introduced in the House of Representatives on October 23, 2001. Pursuant to a rule waiver, it was passed the next day by a vote of 357-to-66. The Senate approved the bill without amendment by a vote of 98-to-1 on October 26th, and it was signed into law the same day by President Bush.

  27. J.M. Lawrence, War on Terrorism: Anti-Terror Laws in Place, Boston Herald, Oct. 27, 2001, at 5.

  28. DOJ Oversight Testimony, supra note 21.

  29. Id.

  30. Id.

  31. This group is organized under the Treasury Department.

  32. USA Patriot Act, Pub. L. No. 107-56, § 808, 115 Stat. 272, 378-79 (2001).

  33. Id. § 808 (amending 12 U.S.C. § 2332b with respect to 18 U.S.C. § 351(e)).

  34. Id. (amending 12 U.S.C. § 2332b with respect to 18 U.S.C. § 844(e)).

  35. Id. (amending 12 U.S.C. § 2332b with respect to 18 U.S.C. § 844(f)(1)).

  36. Id. (amending 12 U.S.C. § 2332b with respect to 18 U.S.C. § 956(b)).

  37. Id. (amending 12 U.S.C. § 2332b with respect to 18 U.S.C. § 1361).

  38. Id. (amending 12 U.S.C. § 2332b with respect to 18 U.S.C. § 1366(b) and (c)).

  39. Id. (amending 12 U.S.C. § 2332b with respect to 18 U.S.C. § 1751(e)).

  40. Id. (amending 12 U.S.C. § 2332b with respect to 18 U.S.C. § 2152).

  41. Id. (amending 12 U.S.C. § 2332b with respect to 18 U.S.C. § 2156).

  42. DOJ Oversight Testimony, supra note 21.

  43. Id.

  44. Id.

  45. The administration's centralization of authority and resistance to accountability bring to mind James Madison's words in The Federalist No. 51. Addressing the inherent tension between liberty and authority in democratic governments, Madison wrote:
    If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the Government to control the governed; and in the next place oblige it to control itself.
  46. USA Patriot Act § 904, 115 Stat. at 387-88.

  47. See DOJ Oversight Testimony, supra note 21 (claiming that the President's authority is at least partially constitutionally founded).

  48. Ashcroft noted that "America's campaign to save innocent lives . . . has brought me back to this committee to report to you in accordance with Congress's oversight role." Id.

  49. Id.

  50. See USA Patriot Act § 901, 115 Stat. at 387 (limiting the CIA Director's search authority only to the extent that such searches are not "authorized by Statute or Executive Order").

  51. 50 U.S.C.A. § 403-3(c)(6) (Supp. 2002).

  52. 50 U.S.C.A. § 403-3(d)(1) (Supp. 2002).

  53. The most notorious, but certainly not the only, example of the CIA's abuse of this monitoring power is that of "Operation CHAOS," initiated in 1967 to monitor U.S. citizens who protested against the Vietnam War. See generally Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982); In re Halkin, 598 F.2d 176 (D.C. Cir. 1979); Hrones v. CIA, 685 F.2d 13 (1st Cir. 1982); Nat'l Lawyers' Guild v. Attorney Gen., 96 F.R.D. 390 (S.D.N.Y. 1982); Grove Press, Inc. v. CIA, 483 F. Supp. 132 (S.D.N.Y. 1980); Ferry v. CIA, 458 F. Supp. 664 (S.D.N.Y. 1978); Krause v. Rhodes, 535 F. Supp. 338 (N.D. Ohio 1979); Socialist Workers' Party v. Attorney Gen., 642 F. Supp. 1357 (S.D.N.Y. 1986). CHAOS attempted to monitor the increasing influenc exerted over critics of the Johnson Administration's Vietnam policy by "Soviets, Chicoms [Chinese Communists], Cubans and other Communist countries," paying particular attention to "any evidence of foreign direction, control, training or funding." Halkin, 690 F.2d at 982 n.8. See generally Report to the President by the Commission on CIA Activities Within the United States (1975) (the Rockefeller Report - available at:; Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, pt. 1, at 135-39. The CIA targeted certain groups, including "radical students, anti-Vietnam war activists, draft resisters and deserters, black nationalists, anarchists, and assorted `New Leftists.'" Halkin, 690 F.2d at 982 n.9. It maintained several thousand computerized files on Americans involved in these activities. Id. at 982. The CIA's activities ranged from infiltration and mail monitoring to inclusion of several dozen Americans on a "watchlist," which enabled the CIA to scan and intercept all telecommunications containing references to those names. Id. at 983-84.

  54. John Solomon, Ashcroft: Groups Could be Monitored, Associated Press, Dec. 2, 2001; Susan Schmidt & Dan Eggen, FBI Given More Latitude: New Surveillance Rules Remove Evidence Hurdle, Wash. Post, May 30, 2002, at A1; John Solomon, U.S. Extremists, Terror Groups Eyed, Associated Press, Feb. 28, 2002, (discussing increased monitoring of U.S. extremist groups out of concern they may try to coordinate with international terrorists); see, e.g., Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997) (holding that the Fourth Amendment rights of clergy and prisoners were violated by surreptitious taping of prison confessional); United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) (describing infiltration and extensive monitoring of churches by INS officials investigating alleged alien smuggling).

  55. For a description of how this inter-agency information gathering works, see Jim McGee, In Federal Law Enforcement, `All Walls Are Down,' Wash. Post, Oct. 14, 2001, at A16 (describing agents of FBI, CIA, NSA, DIA, Customs, and others working side-by-side in anti-terrorism headquarters of the FBI and CIA). See also Laurie Kellman, Feds Link Anti-Terrorism Databases, Associated Press, Apr. 11, 2002, (describing Attorney General's plan to link databases of local, federal, and international law enforcement authorities). The Attorney General's rationale for this expanded information gathering and sharing capability is similar in tone, if not intent, to the Vietnam-era CIA's rationale for citizen monitoring:
    [L]aw enforcement needs a strengthened and streamlined ability for our intelligence gathering agencies to gather the information necessary to disrupt, weaken and eliminate the infrastructure of terrorist organizations. Critically, we also need the authority for law enforcement to share vital information with our national security agencies in order to prevent future terrorist attacks.
    Homeland Defense Testimony, supra note 20.

  56. DOJ Oversight Testimony, supra note 21.

  57. See USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272, 376 (2001) (providing, inter alia, that violation of certain domestic criminal laws constitutes domestic terrorism); see also infra notes 58-60 and accompanying text.

  58. USA Patriot Act § 802, 115 Stat. at 376.

  59. Id. § 808. The Act's amendment to 18 U.S.C. § 3077 (1)(a) (2000), which includes "domestic terrorism" within the rewards program provided by the Justice Department for information relating to terrorist acts, further confirms that the Justice Department will routinely employ this broader definition of "terrorism." Id. § 802(b).

  60. There is precedent for this expansive reading of anti-criminal legislation against political protesters in the application of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (1994), to pro-life (anti-abortion) protesters. RICO was passed with broad language designed to take the profit out of organized crime. RICO makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or the collection of an unlawful debt." Id. § 1962(c). A "pattern" of RICO activity occurs if two acts are committed within a ten-year span. Id. § 1961(5). In National Organization for Women v. Scheidler, 510 U.S. 249 (1994), the Supreme Court unanimously rejected several pro-life protesters' argument that RICO could not apply to them because they lacked an economic motivation to constitute an "enterprise" under RICO. Although the majority did not address RICO's potential chilling effects upon free speech or associational rights, Justice Souter recognized in a concurring opinion that the majority opinion does not preclude First Amendment challenges to the application of RICO in certain situations. Id. at 262 n.6 (Souter, J., concurring). As one commentator noted after Scheidler, it would appear that "any politically unpopular protest movement with resulting property damage or even technical trespass can be elevated into a federal crime." Angela Hubbell, "Face'ing the First Amendment: Application of RICO and the Clinic Entrances Act to Abortion Protesters, 21 Ohio N.U. L. Rev. 1061, 1067 (1995); cf. Palmetto State Med. Ctr. v. Operation Lifeline, 117 F.3d 142 (4th Cir. 1997) (finding that no evidence existed to show that Operation Lifeline or any of the individual defendants were engaged in any illegal activities on the particular dates alleged by the plaintiff/hospital); Planned Parenthood v. Am. Coalition of Life Activists, 945 F. Supp. 1355 (D. Or. 1996) (concluding that plaintiffs adequately stated RICO claims against all but one defendant); Nat'l Org. for Women, Inc. v. Scheidler, No. 86 C 788, 1997 WL 610782, 30 (N.D. Ill. Sept. 23, 1997) (permitting certain RICO claims to proceed against defendants while granting judgment in favor of defendants on other RICO claims).

  61. DOJ Oversight Testimony, supra note 21. The Attorney General apparently is referring to former versions of the provisions cited above, which now employ broadly expanded definitions of "terrorism" pursuant to the Patriot Act amendments.

  62. United States v. Verdugo-Urquidez, 494 U.S. 259, 264-66 (1990).

  63. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953).

  64. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953) (citation omitted).

  65. Mathews v. Diaz, 426 U.S. 67, 77 (1976).

  66. Plyler v. Doe, 457 U.S. 202, 212 n.11 (1982) (quoting Wong Wing v. United States, 163 U.S. 228, 242-43 (1896) (Field, J., concurring in part and dissenting in part)).

  67. Mathews, 426 U.S. at 77.

  68. 457 U.S. 202 (1982).

  69. Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 2500 (2001) (citing Plyler v. Doe, 457 U.S. 202, 210 (1982)).

  70. Id. Mathews, 426 U.S. at 77, Kwong Hai Chew, 344 U.S. at 596-98, and Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) also support the proposition that expulsion cannot occur without adherence to the formalities of due process.

  71. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). Constitutional due process protections are not extended to aliens who have not yet entered the United States. In United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990), the Court stated that "[i]t is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside the territorial boundaries." Likewise, illegal aliens who have been intercepted at the border and deemed "excludable" may be subjected to summary exclusion without due process. Zadvydas, 121 S. Ct. at 2500 (internal citations omitted). Accordingly, this analysis does not address the application of the Patriot Act or Justice Department actions with regard to excludable aliens.

  72. The Administration's characterization of aliens tends to shift with context. They are defended as "Americans" when subject to retaliatory attacks and threats. See, e.g., DOJ Oversight Testimony, supra note 21 (stating that the DOJ has investigated over "250 incidents of retaliatory violence and threats against Arab Americans, Muslim Americans, Sikh Americans and South Asian Americans"). On the other hand, Ashcroft recently claimed that peaceful, productive aliens who held jobs at a major airport despite their illegal status were a threat to citizens. See Greg Schneider, Utah Airport Workers Indicted in Security Probe, Wash. Post, Dec. 12, 2001, at A16 (quoting Ashcroft as commenting that, "Americans who pass through our nation's airports and who travel on our nation's airlines must and will be protected. The Justice Department will enforce the law fully and vigorously to protect Americans.").

  73. U.S. Const. amend. I.

  74. See, e.g., Police Dep't of Chicago v. Moseley, 408 U.S. 92 (1972) (holding that a distinction between peaceful labor picketers and peaceful picketers is impermissible); Boos v. Barry, 485 U.S. 312 (1988) (holding that content-based restrictions on political speech must be shown to be necessary to serve a compelling state interest and must be narrowly tailored to achieve that end).

  75. Smith v. Arkansas State Highway Employees Local 1315, 441 U.S. 463, 464 (1979).

  76. Roth v. United States, 354 U.S. 476, 484 (1957).

  77. United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) ("Aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.").

  78. N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964).

  79. Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 8 (1986).

  80. Thornhill v. Alabama, 310 U.S. 88, 95 (1940).

  81. Id. at 101-02.

  82. Sedition Law Used to Hold Suspects, Associated Press, Nov. 8, 2001,

  83. 18 U.S.C. § 2384 (1994).

  84. See, e.g., United States v. Rodriguez, 803 F.2d 318, 320 (7th Cir. 1986) (noting that the act was passed to help the government cope with urban terrorism and therefore does not conflict with the treason clause of the Constitution which provides a vehicle to make arrests before a conspiracy ripens into a violent situation).

  85. 277 F. 129 (1st Cir. 1922).

  86. Id. at 132-33.

  87. See, e.g., Wells v. United States, 257 F. 605 (9th Cir. 1919) (holding that a resolution circulated by the defendant that organized workers should demand exemption from military service for all conscientious objectors was admissible to show seditious state of mind); Haupt v. United States, 330 U.S. 631, 642 (7th Cir. 1947) (deciding that proof of conversations expressing pro-German sentiment, though they had occurred long before the alleged acts of treason, were admissible to prove motive and intent in trial for treason); United States v. Rahman, 189 F.3d 88, 123 (2d Cir. 1999) (allowing evidence that defendants had possession of Islamic materials describing Jihad to be used to support a conviction for the World Trade Center bombing); cf. 18 U.S.C. § 552 (2000) (prohibiting U.S. officers from assisting in importation or distribution of books and articles containing illegal advocacy); 18 U.S.C. § 1717 (1994) (stating that printed matter containing material pertaining to illegal activity is non-mailable and whoever attempts to mail it will be fined or imprisoned).

  88. 8 U.S.C. § 1182(a)(3) (2000).

  89. USA Patriot Act, Pub. L. No. 107-56, § 411(a), 115 Stat. 272, 346 (2001).

  90. Id. (noting an exception to that provision for children and spouses who did not know of the activity of the non-citizen or who have sufficiently renounced such activity).

  91. Homeland Defense Testimony, supra note 20.

  92. Id. (noting that, under current law, the government can only remove aliens if there is direct material support of an individual terrorist).

  93. See USA Patriot Act § 411(a), 115 Stat. at 347 (including in the definition of "material support" such things as transportation, a safe house, and communications).

  94. Id. at 346.

  95. Homeland Defense Testimony, supra note 20; see also Designation of 39 "Terrorist Organizations" Under the "PATRIOT USA Act", 66 Fed. Reg. 63,620 (Dec. 7, 2001) (classifying thirty-nine groups as "terrorist organizations" as of December 5, 2001).

  96. USA Patriot Act § 411, 115 Stat. at 346-47.

  97. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580 (1952) (upholding deportation of alien for violation of the Alien Registration Act on sole grounds of former membership in Communist Party); Galvan v. Press, 347 U.S. 522 (1954) (upholding congressional power to deport alien who had lived in United States for thirty years because he had briefly been a member of the Communist Party).

  98. In what came to be known as the McCarthy era, the practice of blacklisting organizations in a political witch hunt resulted in even marginalized groups being listed by the Attorney General as "communist." This practice was declared unconstitutional by the Supreme Court. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) (holding that the Attorney General did not have the authority to arbitrarily blacklist the defendant groups).

  99. The threat of exclusion is particularly real for the thousands of Muslim residents who have contributed to, supported, or associated with the Holy Land Foundation, which claims to be the largest Muslim charity in the United States. See Mike Allen & Steven Mufson, U.S. Seizes Assets of 3 Islamic Groups: U.S. Charity Among Institutions Accused Of Funding Hamas, Wash. Post, Dec. 5, 2001, at A1; Muslims Wary of Making Donations: Ramadan a Time for Charity, But Many Fear Being Questioned by FBI, Associated Press, Nov. 23, 2001 (reporting that, although the organization had been the subject of FBI scrutiny for years, many individuals made contributions to it to support its professed mission to aid Palestinian refugees).

  100. Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1829 (1994 & West Supp. 2002); see discussion infra Part III.A (discussing the expansion of searches permissible under FISA).

  101. See USA Patriot Act § 215, 115 Stat. at 287 (amending 50 U.S.C. § 1861-1863 (1998) by enacting a new section 501(a)(1)).

  102. See id. (inserting new section 501(d)); see also Nat Hentoff, Who Knows?, Legal Times, May 25, 2002 (discussing First Amendment implications of the provision).

  103. See USA Patriot Act § 215, 115 Stat. at 287 (inserting new section 501(c)(2) that allows the judge to issue such secretive order if the judge finds that the FBI's application meets the requirements of the section).

  104. Homeland Defense Testimony, supra note 20.

  105. Id.

  106. Id.

  107. See supra notes 93-94 and accompanying text (discussing the Patriot Act's negative treatment of people who associate with suspect groups).

  108. See supra note 103 and accompanying text (explaining the "gag" order within the Patriot Act).

  109. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

  110. U.S. Const. amend. IV. Specifically, the Amendment gives people the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id.

  111. The Court has varied the degree of protection that it will provide privacy based on the context of a given situation. See United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976) (finding that the public interest in having vehicle checkpoints at the Mexican border outweighs the slight privacy intrusion); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (holding that a minimal intrusion of a random stop near the U.S. border is within the limits of the Fourth Amendment); United States v. Ortiz, 422 U.S. 891, 895 (1975) (deciding that at traffic checkpoints not near the border, officers cannot search vehicles without probable cause). See generally Camara v. Mun. Court, 387 U.S. 523, 528 (1967) (explaining that the Fourth Amendment provides rights that are "basic to a free society").

  112. Johnson v. United States, 333 U.S. 10, 13-14 (1948) (emphasis added).

  113. See United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) (contrasting the Fourth and the Fifth Amendment, the latter of which provides a right that can only be violated at the time of trial).

  114. Id. (quoting United States v. Calandra, 414 U.S. 338, 354 (1974)); see also United States v. Leon, 468 U.S. 897, 906 (1984) (explaining that once an unlawful search or seizure has occurred, the use of the evidence from the search creates no new Fourth Amendment violation).

  115. Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting) (noting that there is virtually no enforcement of the Fourth Amendment outside of the court because the officers are the ones who are violating it). Specifically, Justice Robert Jackson noted:
    The right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court. . . . There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear.
    Id. In one example of such a case, the defendant was observed in a high crime area, stopped, and patted down despite the fact that there was no reasonable suspicion that he was armed or had engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 48-49 (1979). Ordinarily, the individual would have gone on his way, intimidated and humiliated, but unable to obtain redress because the actions of the officer were not susceptible to proof that they were "shocking to the conscience" as amounting to a "reckless disregard" for the subject's personal liberty. See County of Sacramento et al v. Lewis, 523 U.S. 833, 846-47 (1998). It was only because he was arrested and charged for refusing to provide his name that his case came to light, a practice the Court held violative of his right to decline to cooperate. Brown, 443 U.S. at 53.

  116. Gouled v. United States, 255 U.S. 303, 304 (1921) (recognizing the encroachment of Fourth Amendment rights by both courts and police officers), overruled on other grounds by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967).

  117. Terry v. Ohio, 392 U.S. 1, 12 (1968) (disagreeing with the state that the issue should be characterized in terms of the rights of police officers and seeking to balance criminal justice aims with Fourth Amendment rights).

  118. Id. at 19 (quoting Hayden, 387 U.S. at 310); see also United States v. Brignoni-Ponce, 422 U.S. 873 (1975); United States v. Mendenhall, 446 U.S. 554 (1980); Florida v. Royer, 460 U.S. 491, 500 (1983).

  119. Terry, 392 U.S. at 28.

  120. Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1829 (1994 & West Supp. 2002); Wiretap Act of 1968, 18 U.S.C. §§ 2510-2522 (2000).

  121. 50 U.S.C. § 1805. There is no statutory limit on wiretapping U.S. citizens or resident aliens outsides the United States. However, per an Executive Order issued by President Reagan in 1981, if a citizen or permanent legal resident is the target of surveillance abroad, the Attorney General needs to approve it. Exec. Order No. 12,333,46, Fed. Reg. 59,941, 59,951 (Dec. 4, 1981).

  122. 50 U.S.C. § 1805(a)(3). The Act further clarifies that no such target will be considered as such solely on the basis of activities protected by the First Amendment. Id.

  123. Id. 1803.

  124. Id.

  125. USA Patriot Act, Pub. L. No. 107-56, § 218, 115 Stat. 272, 291 (2001).

  126. Id.

  127. Section 218 of the Patriot Act amends 50 U.S.C. § 1804(a)(7)(B), which lists requirements for a court order application for electronic surveillance, and 50 U.S.C. § 1823(a)(7)(B), which lists requirements for an order for a physical search, by striking "the purpose" and inserting "a significant purpose." In both sections, the amended provision now reads, "Each application shall include . . . *** (7) a certification . . . *** (B) [That] a significant purpose of the surveillance is to obtain foreign intelligence. . . ."

  128. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, No. 02-429, United States Foreign Intelligence Surveillance Court, __ F. Supp. 2d __, at 2002 WL 31017386 (May 17, 2002) [hereinafter Memorandum Op.]. See Dan Eggen & Susan Schmidt, Secret Court Rebuffs Ashcroft: Justice Dept. Chided on Misinformation, Wash. Post, Aug. 23, 2002, at A1; Ted Bridis, White House Appeals Wiretap Ruling, Associated Press, Aug. 23, 2002.

  129. Memorandum Op., 2002 WL at *1 (requiring that the government's proposed changes be modified under FISA).

  130. Id. at *11 (emphasis in original).

  131. Id.

  132. Id.

  133. Id. at *3 n.2 (quoting Justice Dep't briefing) (emphasis in original).

  134. Senators Ask Secret Appellate Court to Release Decision, Spar over Justice FISA Request, Associated Press, Sept. 10, 2002, available at 2002 WL 26545846.

  135. USA Patriot Act § 206 (amending 105(c)(2)(B) of FISA).

  136. Id.

  137. Id. 207(a)(1) (amending 105(e)(1) of FISA).

  138. Id. 207(a)(2) (amending 304(d)(1) of FISA).

  139. Homeland Defense Testimony, supra note 20.

  140. See supra note 135 and accompanying text (discussing the expansion of warrant authority to include any person who might be helpful in the investigation and not just the person who is specifically identified on the warrant application).

  141. See USA Patriot Act, Pub. L. No. 107-56, § 208, 115 Stat. 272 (2001) (amending 50 U.S.C. § 1803 to authorize courts in any jurisdiction to review such motions or applications).

  142. Id. 214(a)(1) (amending 50 U.S.C. § 1842 which did not previously include investigations for "clandestine intelligence activities").

  143. 18 U.S.C. § 3127(B)(3) (2000).

  144. Id. 3127(B)(4).

  145. See United States v. Bin Laden, No. S(7) 98 CR. 1023(LBS), 2001 WL 30061, at 4 (S.D.N.Y. Jan. 2, 2000) (explaining that, under FISA, routine border searches conducted at points of entry into the United States are not subject to a warrant, probable cause, or reasonable suspicion requirement).

  146. 50 U.S.C. § 1842(c) (2000).

  147. Id. 1842(d).

  148. USA Patriot Act, Pub. L. No. 107-56, § 216, 115 Stat. 272, 288-90 (2001).

  149. 50 U.S.C. § 1842(d).

  150. See USA Patriot Act § 216, 115 Stat. at 288-90 (authorizing the installation and use of a pen register or trap and trace device anywhere within the United States when it is relevant to an ongoing criminal investigation).

  151. See supra Part III.B (discussing roving surveillance powers).

  152. See USA Patriot Act § 216, 115 Stat. at 290 (defining pen registers and trap and trace devices to include a greater number of wire or electronic communication).

  153. 18 U.S.C. § 2511 (2000).

  154. USA Patriot Act § 215, 115 Stat. at 288.

  155. Id.

  156. See supra Part II.C (discussing the First Amendment rights of businesses).

  157. 18 U.S.C. §§ 2510-2522 (1994).

  158. Id. 2516, 2518.

  159. USA Patriot Act § 202, 115 Stat. at 280.

  160. See S. Rep. No. 99-541, at 1-2 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3555 (noting that the development of new methods of communication and surveillance devices has dramatically expanded the Framers' intended scope of the Fourth Amendment).

  161. Katz v. United States, 389 U.S. 347, 351-52 (1967); see also Bond v. United States, 529 U.S. 334, 338 (2000); California v. Ciraolo, 476 U.S. 207, 211 (1986); Smith v. Maryland, 442 U.S. 735 (1979).

  162. 389 U.S. 347 (1967).

  163. See Wiretap Act of 1968, Pub. L. No. 90-351, 801(a), (d), 82 Stat. 211, 211-12 (1969) (stating that wiretapping occurs frequently without the consent of the private parties to be used as evidence and concluding that, in order to safeguard personal privacy, interception should only be allowed when controlled or supervised by a court); see also Wiretap Act, Pub. L. No. 99-508, 107, 100 Stat. 1858, 1858 (1989) (codified as amended at 18 U.S.C. § 2510 (1991)) (providing that "nothing in this Act or the amendments made by this act constitutes authority for the conduct of any intelligence activity.").

  164. Cf. Katz, 389 U.S. at 361 (Harlan, J., concurring) (asserting that the Fourth Amendment requires that expectation of privacy be both subjectively held and objectively justified and that subjects take reasonable precautions to protect the privacy of their communications).

  165. See generally Mitchell v. Forsyth, 472 U.S. 511, 514-20 (1985) (discussing the lengthy history of federal wiretaps and adoption of the Wiretap Act).

  166. Id. at 514-15 (citing United States v. United States Dist. Court, 407 U.S. 297 (1972)). The Court stated that the decision "finally laid to rest the notion that warrantless wiretapping is permissible in cases involving domestic threats to national security." Id. at 534.

  167. Statistics Div., Admin. Office of the U.S. Courts, 1997 Wiretap Report 33, tbl. 7, Authorized Interceptions Granted Pursuant to 18 U.S.C. § 2519 as Reported in Wiretap Reports for Calendar Years 1990-2000 (2002), available at

  168. USA Patriot Act, Pub. L. No. 107-156, §§ 201-202, 115 Stat. 272, 278 (2001). See generally 18 U.S.C. § 2511(2)(a)(i) (2000) (permitting interception and disclosure of communications by a computer service provider to protect the service provider's rights or property, including in cases of fraud).

  169. See infra Part IV.A (discussing the end of the secrecy of grand juries).

  170. USA Patriot Act § 203(b), 115 Stat. at 280.

  171. See id. 203(d), 115 Stat. at 281 (authorizing foreign intelligence or counterintelligence to be disclosed to any federal law enforcement official to aid the official receiving that information in the performance of his official duties).

  172. See id. 105, 115 Stat. at 277 (explaining that the Director of the United States Secret Service shall take appropriate actions to develop a national network of electronic crime task forces).

  173. Id. 209, 115 Stat. at 283.

  174. See S. Rep. No. 99-541, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3566 (observing that wire communications in storage like voice mail are protected); see also United States v. Smith, 155 F.3d 1051, 1058-59 (9th Cir. 1998) (holding that company voice mail message intercepted by unauthorized co-worker violated Wiretap statute).

  175. An "electronic communication service" is a service which provides its users the ability to send or receive wire or electronic communications, including telephone companies and electronic mail companies. S. Rep. No. 99-541, at 12 (1986), reprinted in 1986 U.S.C.A.A.N. 3555, 3560.

  176. USA Patriot Act § 204, 115 Stat. at 281.

  177. Cf. Katz v. United States, 389 U.S. 347, 351-52 (1967) (explaining that "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. . . .").

  178. Cf. Katz, 389 U.S. at 358-59 (concluding that surveillance of a telephone booth should not be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause to keep individuals secure from Fourth Amendment violations).

  179. 18 U.S.C. § 2703(c)(2) (1994).

  180. USA Patriot Act § 204, 115 Stat. at 283.

  181. See Wilson v. Arkansas, 514 U.S. 927, 932 n.2 (1995) (applying the common law knock and announce principle to its Fourth Amendment reasonableness inquiry and noting that this ancient standard dates back to the Magna Carta); Richards v. Wisconsin, 520 U.S. 385, 396 (1997) (holding that not even a felony drug search creates an exception to the knock and announce requirement).

  182. Wilson, 514 U.S. at 936-37.

  183. See 18 U.S.C. § 3109 (1995) (providing that "the officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance. . . .").

  184. See Wilson, 514 U.S. at 931-33 (discussing the important historical reasons for the common law knock and announce principle, including allowing people to comply with the law and avoid property destruction caused by forcible entry and to prepare themselves by pulling on clothes or getting out of bed).

  185. See, e.g., Atkins v. City of Dallas, Civil Action No: 3:95-CV-1424-D, 1997 U.S. Dist. LEXIS 4983, at 2 (N.D. Tex. Mar. 27, 1997) (describing a situation in which officers executed "dynamic entry" with battering rams and flashbang devices, black uniforms and masks, but suspect had vacated home one month earlier); Report on the Death of Donald Scott (Office of the Dist. Attorney, Ventura, CA), Mar. 30, 1993, at 2 (documenting seizure and forfeiture operation targeting alleged marijuana growth on economically desirable property, which resulted in shooting death of sixty-one-year-old-owner and did not turn up any marijuana); Timothy Lynch, Another Drug War Casualty, CATO: Today's Comment (Cato Inst., Wash., D.C.), Nov. 30, 1998 (detailing death of Pedro Oregon Navarro in raid on wrong address), (on file with the American University Law Review); Vicki Brown, Cops Kill Man, Raid Wrong Home, Associated Press, Oct. 6, 2000 (discussing raid of home next door to correct address resulted in death of occupant); Daryl Farnsworth, Unity Plea in Slaying's Wake Victim's Kin, Friends Demonstrate Across Town, Outside Gorbachev Speech, Modesto Bee, Oct. 5, 2000, at B1 (stating that eleven-year-old boy was killed in SWAT raid); Holland v. Harrington, 268 F.3d 1179 (10th Cir. 2001) (execution of misdemeanor assault warrant involved seven SWAT members in "ninja" style uniforms, "no-knock" entrance and children held at gunpoint); Boston to Give Victim's Widow $ 1 Million in Wrongful Death Suit, N.Y. Times, Apr. 25, 1996, at A17 (documenting 1994 Boston incident in which police targeted the wrong house and their raid on a seventy-five-year-old minister's home resulted in the man's death from a heart attack).

  186. USA Patriot Act, Pub. L. No. 107-56, § 213, 115 Stat. 272, 286 (2001).

  187. Fed. R. Crim. P. 41. Rule 41 permits the issuance of a warrant,
    To search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained.

  188. 18 U.S.C. § 3103(a) (1995).

  189. See USA Patriot Act § 213, 115 Stat. at 285-86 (amending 18 U.S.C. § 3103a to create new 3103a (b)(1)).

  190. See USA Patriot Act § 213, 115 Stat. at 286 (adding new 18 U.S.C. § 3103a (b)(3)).

  191. See id. (adding new 18 U.S.C. § 3103a(b)(2)).

  192. Arguably, this kind of "notice" is not notice at all, since the owner did not have warning of forthcoming infringement in advance. Where the execution of a warrant left behind clear evidence that the property had been searched or seized, "notice" by way of a later admission that it was law enforcement authorities, not burglars, who were on the premises seems to make a mockery of the constitutional rationale for notice. To paraphrase an ancient maxim of justice, "notice delayed is notice denied."

  193. See Payton v. New York, 445 U.S. 573, 596-97 (1980) (noting that under common law, "the freedom of one's house" was one of the most vital elements of English liberty); see also Wilson v. Layne, 526 U.S. 603, 610 (1999) (explaining that private homes have enjoyed a virtually sacrosanct position in English and American law and concluding that the practice of media "ride-alongs" to film the execution of warrants at residences violates the Fourth Amendment). The Court also quoted an early English case which stated that "the house of every one is to him as his castle and fortress, as well for his defense against injury and violence, as for his repose." Id. (citing Semayne's case, 77 Eng. Rep. 194, 195 (K.B. 1604)).

  194. 18 U.S.C. § 2705 (1995).

  195. See, e.g., United States v. Heatly, No. S11 96 CR. 515 (SS), 1998 WL 691201, at 5 (S.D.N.Y. Sept. 30, 1998) (discussing the conditions justifying delayed notice of a search order).

  196. U.S. Const. amend. V.

  197. USA Patriot Act, Pub. L. No. 107-56, § 203(a), 115 Stat. 272, 278-81 (2001); Fed. R. Crim. P. 6.

  198. See generally Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 8.6-8.7 (2d ed. 1992) (discussing the grand jury's investigative authority and Fourth Amendment challenges to subpoenas).

  199. See Blair v. United States, 250 U.S. 273, 282 (1919). The Court stated that the grand jury, is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found subject to an accusation of crime. Id.

  200. See id. (discussing the investigatory and inquisitory powers of the grand jury under the Fifth Amendment and related statutes); see also LaFave & Israel, supra note 198, § 8.2(c) (discussing the history of grand juries).

  201. E.g., Andrew Miga, Court Demands to See Clinton Lawyer, Boston Herald, Aug. 5, 1998, at 4 (discussing the Supreme Court's decision to make Lanny Breuer, a member of the White House Counsel's Office, testify before the grand jury).

  202. United States v. Proctor & Gamble Co., 356 U.S. 677, 682 n.6, 684 (1958). After a criminal investigation against Proctor & Gamble for Sherman Act violations, the grand jury chose not to bring an indictment. Id. at 679. However, the Department of Justice brought a subsequent civil suit against Proctor & Gamble and, despite the absence of an indictment, used the grand jury transcripts in that suit. Id. The Supreme Court affirmed the lower court's denial of Proctor & Gamble's discovery request for the transcript, finding no "compelling necessity" to set aside the "indispensable secrecy of grand jury proceedings." Id. at 682 (quoting United States v. Johnson, 319 U.S. 503, 513 (1943)).

  203. USA Patriot Act, Pub. L. No. 107-56, § 203a, 115 Stat. 272, 280 (2001).

  204. Id. 203a, 115 Stat. at 281 (emphasis added).

  205. See generally Part IV (discussing the constitutionality of the order and its application to resident citizens).

  206. U.S. Const. amend. VI.

  207. Courts have held that a solid attorney-client relationship necessarily allows for open communication. See United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978) (stating that "free two-way communication between client and attorney is essential if the professional assistance guaranteed by the Sixth Amendment is to be meaningful"); see also Flaherty v. Warden of Conn. State Prison, 229 A.2d 362 (Conn. 1967) (holding that the right to counsel includes the right to consult in private).

  208. National Security; Prevention of Acts of Violence and Terrorism; Final Rule, 66 Fed. Reg. 55,061, 55,063 (Oct. 31, 2001) [hereinafter National Security] (amending C.F.R. pts. 500 & 501); see also George Lardner, Jr., U.S. Will Monitor Calls to Lawyers: Rule on Detainees Called `Terrifying,' Wash. Post, Nov. 9, 2001, at A1.

  209. See, e.g., 5 U.S.C. § 553 (1966) (requiring posting of proposed federal agency rules in the Federal Register with an invitation for public comment and providing that the rule be published at least thirty days before it becomes effective unless the agency can show "good cause").

  210. See National Security, supra note 55, at 55,065 (defining "inmate" to include "all persons" in federal custody).

  211. Id. at 55,062.

  212. The Attorney General claims that "we have the authority to monitor the conversations of 16 of the 158,000 federal inmates and their attorneys because we suspect that these communications are facilitating acts of terrorism. . . . Information will only be used to stop impending terrorist acts and save American lives." DOJ Oversight Testimony, supra note 21. If that is so, why did the Justice Department claim the need for such broad language, which does not restrict monitoring to suspected "terrorists?"

  213. ABA Leadership Statement of Robert E. Hirshorn, President (Nov. 9, 2001) [hereinafter Hirshorn], (on file with the American University Law Review); see, e.g., Black v. United States, 385 U.S. 26 (1966) (determining that admission that the FBI had monitored conversations between accused and counsel necessitated vacating the conviction for tax evasion).

  214. Hirshorn, supra note 60.

  215. Model Code of Prof'l Responsibility DR 4-101 (1986); Model Rules of Prof'l Conduct R. 1.6 (1992).

  216. Lardner, supra note 55, at A1.

  217. Lois Romano & David S. Fallis, Questions Swirl Around Men Held in Terror Probe, Wash. Post, Oct. 15, 2001, at A1.

  218. Peter Slevin & Mary Beth Sheridan, Justice Dept. Uses Arrest Powers Fully: Scope of Jailings Stirs Questions on Detainees' Rights to Representation and Bail, Wash. Post, Sept. 26, 2001, at A10.

  219. See Escobedo v. Illinois, 378 U.S. 478 (1964) (holding statement inadmissible where counsel and accused were prohibited from consulting); see, e.g., People v. Failla, 199 N.E.2d 366 (N.Y. 1964) (holding confession involuntary where counsel was denied access to client).

  220. U.S. Const. amend. VI.

  221. Military Order of Nov. 11, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terror, 66 Fed. Reg. 57,833 (Nov. 13, 2001).

  222. Id.

  223. Id. at 57,834.

  224. Id.

  225. Id. at 57,833.

  226. Id. at 57,835.

  227. Id. at 57,834.

  228. Id. at 57,835.

  229. Id.

  230. Id. at 57,836.

  231. Id.

  232. Charles Cane, Terrorism Tribunal Rights are Expanded: Draft Specifies Appeals, Unanimity on Death Penalty, Wash. Post, Dec. 28, 2001, at A1; John Mintz, U.S. Adds Legal Rights in Tribunals, Wash. Post, Mar. 21, 2002, at A1; Ctr. For Democracy & Tech., Implementation of Other Anti-Terrorism Measures (tracking changes in military tribunal regulations since Sept. 11, 2001 - last visited Sept. 4, 2002).

  233. Id.

  234. U.S. Const. art. III, § 2; see Reid v. Covert, 354 U.S. 1, 20-21 (1957) (holding that American civilians accused of murdering U.S. soldiers abroad could not be tried in military courts).

  235. U.S. Const. art. I, § 8; see United States ex rel. Toth v. Quarles, 350 U.S. 11, 23 (1955) (concluding that a civilian could not be retried by the military for crimes allegedly committed while serving in the armed forces).

  236. 317 U.S. 1 (1942).

  237. Id. at 21.

  238. Id. at 21-22.

  239. Id. at 22.

  240. Id. The opinion in Ex parte Quirin explains the statutory support for the president's call for military tribunals. The Court states:
    By the Articles of War, 10 U. S. C. § 1471-1593, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by court martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. Arts. 1, 2. But the Articles also recognize the "military commission" appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying. . . . But . . . [the Articles do] not exclude from that class "any other person who by the law of war is subject to trial by military tribunals" and who under Article 12 may be tried by court martial or under Article 15 by military commission.
    Id. at 26-27.

  241. Proclamation No. 2561, 7 Fed. Reg. 5101 (July 7, 1942) (emphasis added). The Proclamation was extended to permit trial by military tribunal of U.S. citizens or resident aliens found to have engaged in acts of war. Id. However, the Court did not address this provision or comment upon potential application of the President's order beyond foreign nationals. Id.

  242. Ex parte Quirin, 317 U.S. at 29.

  243. 71 U.S. (4 Wall.) 2 (1866).

  244. Id. at 108.

  245. Id. at 107-08. Milligan also had been the subject of a civilian grand jury investigation, which was discharged without returning an indictment. Id.

  246. Id. at 109. Justice Davis' explanation pertaining to the importance of habeas rings cautionary for our own times. He suggested that the concern for safety and the preoccupation with power struggles during times of political and social unrest dominate the rational decision-making process and that it is only in times of security that the rational mind necessary for sound legal judgment can operate. Id.; see also Fay v. Noia, 372 U.S. 391, 399-400 (1963) (noting the importance of the writ of habeas corpus in the growth of personal liberty and its function to secure a prompt remedy for "intolerable restraints"). The Court stated that "in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with fundamental requirements of law, the individual is entitled to his immediate release." Id. at 399-400 (quoting Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)).

  247. See Proclamation No. 7, reprinted in 13 Stat. 734 (1963). President Lincoln suspended the writ in cases in which officers of the United States:
    h[e]ld persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy, . . . or belonging to the land or naval forces of the United States, or otherwise amenable to military law, or the rules and articles of war, or the rules or regulations prescribed for the military or naval services, by authority of the President, or for resisting a draft, or for any other offence against the military or naval service.
    Id.; see also 12 Stat. 755 (limiting the authority of such proclamations in cases where citizens of Northern states had been the subject of "no bill" grand jury proceedings in the district courts).

  248. Ex parte Milligan, 71 U.S. at 115-16.

  249. Id. at 119.

  250. Id. Justice Davis further expanded on the role of precedent by stating that these precedents inform the Court of the "struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle; and secured in a written constitution every right which the people had wrested from power during a contest of ages." Id.

  251. Id. at 120-21. Once again, the Court's words ring true for our age, as it discussed the foresight of the Framers in creating irrepealable law to withstand detrimental efforts to undermine constitutional liberty. The Court stated:
    The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.
    Id. (emphasis added).

  252. Id. at 121.

  253. Id. at 122.

  254. Id.

  255. Id. Even in times of war, the regular criminal justice system offers some remedies without resort to military tribunals. See Haupt v. United States, 330 U.S. 631 (1947) (upholding the indictment and conviction of a World War II civilian conspirator for treason for knowingly aiding a would-be saboteur). Furthermore, in the post-September 11th era, the DOJ has already relied on the normal channels of established criminal law and procedure to try alleged terrorists, such as when it used a conspiracy indictment of an alleged insider of the attacks, Zacarias Moussaoui, a legal resident French Moroccan. Man Indicted in Attacks Conspiracy, Associated Press, Dec. 11, 2001.

  256. Milligan, 71 U.S. at 123.

  257. Id. (clarifying that this excludes only "cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger").

  258. Id. at 127. It is fitting to leave Milligan with another caution of Justice Davis:
    It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character, wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. . . . The illustrious men who framed [the Constitution] were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.
    Id. at 125-26.

  259. Ex parte Quirin, 317 U.S. 1, 29 (1942).

  260. Id.

  261. Id. at 30-31.

  262. Id.

  263. See id. at 45 (concluding that, since Milligan was not a member of or tied to the enemy's armed forces and was not a belligerent, Milligan was not subject to the law of the war).

  264. Id. at 28.

  265. See U.S. Const. art. III, § 1 ("The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.").

  266. Id.; see, e.g., Artuz v. Bennett, 531 U.S. 4 (2000) (affirming authority of Congress via the Anti-Terrorism and Effective Death Penalty Act to impose statutory restrictions on length of time to bring habeas petition).

  267. As to citizens, the availability of due process and civilian trials has been repeatedly confirmed by the Supreme Court. See, e.g., Duncan v. Kahanamoku, 327 U.S. 304 (1946) (holding that a civilian could not be tried in military tribunal for assaulting Marine officers). This applies to citizens of ancestry from enemy nations. E.g., Ex parte Mitsuye Endo, 323 U.S. 283, 297 (1944) (holding that the War Relocation Authority could not subject an American citizen of Japanese ancestry to detention who was concededly loyal).

  268. See generally Duncan, 327 U.S. at 304; Ex parte Mitsuye Endo, 323 U.S. at 283 (discussing problems associated with disregarding the constitutional rights of resident non-citizens). The lack of due process to be afforded to those charged in military tribunals may be compounded by difficulty in obtaining counsel to represent them, since the rules of such tribunals may not permit attorneys to provide "competent representation" in accordance with their ethical obligations. See Stephen Gillers, No Lawyer to Call, N.Y. Times, Dec. 3, 2001, at A19 (arguing that rules of professional responsibility preclude attorneys from providing competent counsel of accused in military tribunals).

  269. U.S. Const. art. I, § 9, cl. 2.

  270. U.S. Const. amend. V.

  271. USA Patriot Act, Pub. L. No. 107-56, § 412, 115 Stat. 272, 350 (2001).

  272. Id. § 412, 115 Stat. at 351.

  273. See id. (providing that judicial review of any action or decision relating to mandatory detention of suspected terrorists is available exclusively in habeas corpus proceedings).

  274. Id. § 412, 115 Stat. at 352.

  275. See id. § 412, 115 Stat. at 351 (allowing an alien to be detained for additional periods of up to six months if the release of the alien will threaten the national security of the United States).

  276. Unnecessary or lengthy detention is a problem for due process, and courts have often found such detention to be unconstitutional. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 2498-99 (2001) (holding that the indefinite detention of a deportable alien beyond six months without benefit of a judicial hearing is a denial of due process); see also Patel v. Zemski, 275 F.3d 299, 314 (3d Cir. 2001), in which a long-term permanent resident of the United States was convicted of harboring an undocumented alien who was his employee. Id. at 303. After serving his sentence, Patel was taken into custody by the INS pending a deportation hearing on the ground that the conviction constituted an "aggravated felony." Id. Although a bond hearing was provided, it addressed only whether Patel's offense was an "aggravated felony," which under the statute automatically deprived Patel of an individual determination of the necessity of his detention. Id. at 303-04. The Third Circuit Court of Appeals held the automatic detention provision of the Immigration Act unconstitutional as applied to Patel. Citing the Supreme Court's declaration in Zadvydas that "freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that [the Due Process] Clause protects," id. at 309 (quoting Zadvydas, 121 S. Ct. at 2498), the Court of Appeals held that "mandatory detentions of aliens after they have been found subject to removal but who have not yet been ordered removed because they are pursuing their administrative remedies violates their due process rights unless they have been afforded the opportunity for an individualized hearing at which they can show that they do not pose a flight risk or danger to the community." Id. at 314.

  277. 50 U.S.C. § 1702 (1977).

  278. USA Patriot Act § 106, 115 Stat. at 277.

  279. Id. The Act further provides that:
    all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.
    Id. (emphasis added).

  280. Homeland Defense Testimony, supra note 20.

  281. See supra Part I.D (discussing the constitutional rights of non-citizens).

  282. See A. Jeff Ifrah et al., Casting a Wide Net, Legal Times, Nov. 19, 2001, at 30 (documenting the signing of an Executive Order on September 24, 2001 that identified twenty-seven people with whom all financial activities with the United States were prohibited because of their connection with terrorist activities); see also Stewart M. Powell & Dan Freedman, Foreign Banks Urged to Freeze the Assets of Terrorists, Seattle Post-Intelligencer, Sept. 25, 2001, at 1 (threatening foreign banks with shutdown of their American operations unless they freeze the financial assets of 12 individuals, 11 organizations, 3 charities, and 1 business, all of which were linked to terrorist activity).

  283. USA Patriot Act § 106, 115 Stat. at 278.

  284. Id.

  285. Id. 316, 115 Stat. at 309.

  286. Id.

  287. U.S. Const. art. I, § 9, cl. 3; see Cummings v. Missouri, 71 U.S. 277, 323 (1867) (defining a bill of attainder as a legislative act which inflicts punishment without a judicial trial). If the punishment is less than death, then the act is a bill of pains and penalties. Id. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. Id.

  288. 381 U.S. 437 (1965).

  289. 328 U.S. 303 (1946).

  290. 71 U.S. 277, 317, 320 (1866).

  291. Id.

  292. Lovett, 328 U.S. at 313-15.

  293. Brown, 381 U.S. at 439-40; see also 29 U.S.C. § 504 (Supp. IV 1958).

  294. See id. at 441 (explaining that attainders were devices often resorted to in sixteenth, seventeenth, and eighteenth-century England for dealing with persons who attempted or threatened to attempt to overthrow the government).

  295. See id. (noting that the attainders historically carried with them a "corruption of blood," providing that the attained parties' heirs could not inherit his property).

  296. Id. at 441-46. The Court explained that the clause was intended to ensure that the legislature would not overstep the bounds of its authority and perform the functions of other departments. Id. at 446.

  297. See id. at 458-59 (explaining that English bills of attainder were enacted for preventive purposes, where the legislature made a judgment most likely based on past acts and associations that a given person or group was likely to cause trouble).

  298. Id. at 447.

  299. E.g., id.; Cummings v. Missouri, 71 U.S. 277 (1866).

  300. Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

  301. USA Patriot Act, Pub. L. No. 107-56, §§ 355-356, 115 Stat. 272, 324-25 (2001).

  302. Id. § 355, 115 Stat. at 324.

  303. Id.

  304. 12 U.S.C.S. § 3412 (1978).

  305. USA Patriot Act § 358, 115 Stat. at 327 (emphasis added).

  306. 15 U.S.C.S. § 1681 (1968).

  307. 20 U.S.C.A. § 1232g (1974).

  308. Id. § 1232g(a)(1)(c).

  309. Amendments to the Elementary and Secondary Education Act of 1965, Pub. L. No. 93-380, 88 Stat. 484 (1974).

  310. Id.

  311. Id. § 405, 115 Stat. at 345.

  312. Id. § 414, 115 Stat. at 353-54.

  313. Id. § 1008, 115 Stat. at 355.

  314. Declaration of Independence para. 2 (U.S. 1776).

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