Civil Liberties & National Security: Are They in Conflict?

How should the United States protect itself against terrorist attacks and at the same time protect basic constitutional rights? Must Americans accept limits on some of these rights in the name of personal and national security? Such questions have been debated since 9/11 and are raised in "Civil Liberties and Terrorism," a set of still-relevant lessons posted on this website. Since then, a host of controversial cases bearing on these questions have come up.

 

Below are several brief case studies that raise questions about civil liberties in the wake of 9/11. Each case study offers students a chance to study, discuss, debate, and write about civil liberties in a time of peril. Choose the case study that seems most useful for your class (or choose more than one). Following the case descriptions are suggested teaching approaches and activities.

 

In considering the cases, students will probably find it useful to have a copy of the sections of the Constitution available in the "Civil Liberties and Terrorism" activity on this website.

 

Please note that we have added updates to the end of the student reading.
 

 

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Student Reading:

Case Study 1

 

Yasser Esam Hamdi, 22 and an American citizen, was born in Lousiana but brought up in Saudi Arabia. He may have joined a Taliban unit in July 2001 in Afghanistan, was captured by Northern Alliance allies of the U.S., and turned over to American military officials. They have imprisoned him since April 2002 in a Navy brig in Norfolk, Virginia. His family says that he went to Afghanistan for humanitarian reasons and only accidentally became involved in the fighting. The Bush administration defines him as an "enemy combatant" and says it has the authority to imprison him indefinitely without charging him with any crime or allowing him to have a lawyer.

 

In October 2002 Frank Dunham, the public defender assigned to represent

Mr. Hamdi, complained at a federal appeals court hearing in Virginia

that if the judges agreed with the government, they would be endangering

"fundamental constitutional protections guaranteed to every citizen" and

creating "a vast power to imprison American citizens almost without

review by the courts" (New York Times, 10/28/02). The government, he

said, had not even allowed him to meet or talk with Mr. Hamdi. The Bush

administration maintained that such captives, even if American citizens,

are a threat to U.S. security.

 

On January 8, 2003 the appeals court ruled for the government. It said

that "Hamdi's detention conforms with a legitimate exercise of the war

powers given the executive by Article II, Section 2 of the

Constitution." This broad authority,it said, means that courts should

show great deference to it. "One who takes up arms against the United

States in a foreign theater of war, regardless of his citizenship, may

properly be designated an enemy combatant and treated as such." The

court said it would be improper for it to inquire into the exact

circumstances of Mr. Hamdi's capture or to consider whether the war was

over. Those matters were up to the president and his advisors.

 

Attorney General John Ashcroft hailed the decision as "an important

victory for the president's ability to protect the American people in

times of war." But the Lawyers Committee for Human Rights said, "The

court seems to be saying that it has no role whatsoever in overseeing

the administration's conduct of the war on terrorism. That is

particularly disturbing in the context of a potentially open-ended,

as-yet-undeclared war, the beginning and end of which is left solely to

the president's discretion."

 

Mr. Hamdi's lawyers will almost certainly appeal to the Supreme Court,

but there is no guarantee that it will review the case.

 

Case Study 2

 

Jose Padilla, an American citizen who has lived in Chicago, is also known as Abdullah al-Muhajir and is a convert to Islam. He was detained at a Chicago airport in May 2002 after a flight from Zurich. U.S. authorities said he had met in Pakistan with Al Qaeda members who had helped him plan how to explode a radioactive bomb in the United States. He is being held at a Navy brig in Charleston, South Carolina, as an "enemy combatant" but, like Hamdi, has not been charged with a crime or allowed access to a lawyer.

 

Lawyers for the American Civil Liberties Union filed a brief in support of Padilla's rights with U.S. District Judge Michael Mukasey. The judge ruled in December 2002 that Padilla can have his "enemy combatant" status reviewed in federal court and that he must have access to a lawyer before that status is decided.

 

"This ruling is a crucial rejection of the Bush Administration's claim of almost unbridled power to unilaterally detain American citizens and hold them indefinitely and incommunicado," said Lucas Guttentag, Director of the ACLU's Immigrant's Rights Project. He added, "The decision is a crucial first step to providing a check on the government's use of the enemy combatant designation" (www.aclu.org, 12/4/02). The government's argument in this case is the same as that in the Hamdi case. Among the differences between the two cases is that Padilla was arrested on U.S. soil, Hamdi in Afghanistan.

 

Case Study 3

 

U.S. officials learned in the spring of 2002 from Afghan war prisoners that underwater attacks on American targets were a possibility. The FBI then began surveying hundreds of dive shops and organizations for information on several million people. "It certainly made sense to help them out," said Alison Matherly of the National Association of Underwater Instructors Worldwide. "We're all in this together."

 

But the owners of the Reef Seekers Dive Company in Beverly Hills, California, refused to turn over their clients' records even after they were served with a subpoena. The government's subpoena asked for "any and all documents and other records relating to all noncertified divers and referrals from July 1999, through July 16, 2002."

 

One of the owners said, "I do not relish the idea of standing up against the FBI. But I think somebody's got to do it." Reef Seekers did not want their client records passed to other agencies and its owners said that in any case terrorists would need much more training than recreational scuba diving lessons.

 

Prosecutors withdrew the subpoena, and the FBI was unwilling to discuss whether it sought divers' names or how it might use any information about them. (New York Times, 12/10/02)

 

Case Study 4

 

A new Pentagon agency, the Office of Information Awareness, has begun a program called Total Information Awareness. The government says the object is to have available instantly information on terror suspects.

 

According to William Safire in the New York Times, the program will create a giant database that will include "every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every website you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend...every piece of information that government has about you—passport application, driver's license and bridge toll records, judicial and divorce records, complaints from nosy neighbors to the FBI" (New York Times, 11/14/02).

 

The American Civil Liberties Union calls Total Information Awareness a "privacy leeching" program that seems to indicate a "cult of surveillance" in the Bush administration.

 

The director of the new Office of Information Awareness, John Poindexter, says that "the privacy of individuals not affiliated with terrorism" will be protected via "technologies for controlling automated search and exploitation algorithms and for purging data structures appropriately."

 

Poindexter was President Reagan's national security advisor. In the 1980s he was convicted of five felonies that included two counts of lying to Congress about his participation in the Iran-Contra affair. It involved secretly selling arms to Iran and using the money to get around a congressional ban on funding the Contras, a right-wing guerrilla group that fought the Sandinista government in Nicaragua. Poindexter was sentenced to six months in prison. An appeals court ruled, however, that his trial had been tainted by testimony he gave before a congressional committee given under a grant of immunity, and his conviction was overturned.

 

Case Study 5

 

After 9/11, hundreds of non-citizen immigrants were rounded up. Courts held secret deportation hearings based on the government's position that those detained might have some link with terrorism.

 

In August 2002 the federal appeals court in Cincinnati ruled on a case brought by four Michigan newspapers and Representative John Conyers Jr., Democrat of Michigan. They wanted to attend deportation hearings concerning Rabih Haddad, a Muslim clergyman who had overstayed his tourist visa.

 

"Democracies die behind closed doors," wrote Judge Damon J. Keith for a unanimous three-judge verdict. "A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution," he said. The judges also said that they shared the government's fear that information valuable to terrorists might be revealed in deportation hearings. But, they said, the government needs to explain "on a case-by-case basis" why the hearing should be closed.

 

But in October 2002 the federal appeals court in Philadelphia contradicted the Cincinnati court's judgment. In this case, New Jersey newspapers filed a suit arguing that they should be allowed to attend the deportation hearing of Malek Zeidan, a Syrian citizen who had overstayed his visa. This time, the court said the Bush administration had acted lawfully in holding secret deportation hearings.

 

The chief judge of the court, Edward R. Becker, writing for the majority in a 2-1 vote, said, "We are keenly aware of the dangers presented by deference to the executive branch when constitutional liberties are at stake, especially in times of national crisis. On balance, however, we are unable to conclude that openness plays a positive role in special-interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimensions."

 

It seems likely that the U.S. Supreme Court will at some point consider one of these cases and resolve the contradiction.

 

Case Study 6

 

More than 800 prisoners from more than 40 different countries who were captured in the Afghan fighting are imprisoned at Guantanamo Bay Naval Base, a U.S. outpost on the tip of Cuba.

 

"These are among the most dangerous, best-trained, vicious killers on the face of the earth," Secretary of Defense Donald Rumsfeld declared soon after the facility was opened. The Bush administration has refused to declare these men "prisoners of war," calling them instead "unlawful enemy combatants."

 

The difference is important. "Prisoners of war" are covered under the Geneva Convention, a set of rules that most of the nations in the world—including the U.S.—have agreed to. The Geneva Convention says that POWs have the right to be treated humanely; to gather in groups; to elect leaders; to prepare their own food; to have knives; to work for pay; to withhold information from their captors beyond name, rank and serial number; to be released at the end of a war and, if they are charged with crimes, to be informed of the charges against them.

 

The International Red Cross and U.S. officials say the prisoners at Guantanamo are being treated humanely. However, the international human rights group Amnesty International says the Guantanamo conditions "may amount to cruel, inhuman or degrading treatment in violation of international law" and that interrogations should stop until the prisoners have a chance to consult lawyers.

 

The U.S. says the prisoners at the Cuban camp are not entitled to the rights given POWs in the Geneva Convention. It says they are not charged with any crimes and are not being "investigated" but rather "interrogated." The U.S. maintains that the Constitution also does not protect the prisoners because they are on "foreign soil"— even if it is a U.S. naval base. A federal district judge has ruled in favor of the administration's position, but there may be reviews of it by higher courts.

 

The war in Afghanistan is more or less over. When will the "war on terrorism" be over, if ever? The men imprisoned at Guantanamo are not there for any prescribed length of time, but indefinitely. Deputy Secretary of Defense Paul Wolfowitz has said, "I think that's probably a good way to think about it." The U.S. position is that the unique threat of terrorism overrides normal international standards.

 

Case Study 7

 

Police in Washington, D.C., are constructing a centrally monitored, citywide closed-circuit TV surveillance system that is the first of its kind in the nation. When completed, the police department will have linked 1,000 cameras to watch streets, schools, the transit system, federal facilities, and a business improvement district. Surveillance images for a portion of this system are already being recorded and logged by the police, Secret Service, FBI and other agencies. When the entire system is finished, police will be able to read newsprint from hundreds of feet away, track cars, zoom in on individuals and send such images to 1,000 patrol cars outfitted with laptops.

 

The American Civil Liberties Union is very concerned. It wants to know: Who will monitor the video? How long will the tapes be kept and by whom? What agencies will have access to them? What steps will be taken to prevent video voyeurism or racist and anti-homeless profiling? Another concern is the past use of surveillance cameras in Washington, D.C. They were used in 1999 to film thousands of anti-NATO demonstrators, in 2000 to watch activists during large protests against the World Bank and International Monetary Fund meeting, and in 2001 on those protesting the disputed election of George W. Bush.

 

An attorney with the Partnership for Civil Justice says, "We believe there is a very strong legal case for the elimination of these cameras. People have the right to traverse the streets and parks of DC without being under the scrutiny of Chief Ramsey and the FBI." But recent opinion polls show over 60 percent public approval for stepped up surveillance of streets and public space.

 

NOTE TO THE TEACHER: UPDATE

 

On June 28, 2004 the Supreme Court ruled on three of the situations described in the above case studies. For both the Hamdi and Guantanamo cases, the court ruled by margins of 8-1 (Hamdi) and 6-3 (Guantanamo) that "a state of war is not a blank check for the president," and, therefore, that the detainees have the right to argue in American courts that they are being held illegally. By a margin of 5-4 (Padilla), it ruled that the detainee must refile his case in a lower court because his original application was not filed properly.
 

After the Supreme Court decision on Hamdi, the Bush administration decided not to give Hamdi a hearing. Instead, it negotiated an agreement with his lawyers 1) to free him to go to Saudi Arabia (Hamdi has been a citizen of both the U.S. and Saudia Arabia) and 2) to require that he give up his U.S. citizenship. His lawyer, Frank W. Dunham Jr., said, "He has always thought of himself as a Saudi citizen, and he wasn't willing to spend an extra day in jail over it."

 

The U.S. Justice Department said, "As we have repeatedly stated, the United States has no interest in detaining enemy combatants beyond the point that they pose a threat to the U.S. and our allies." Antony Romero, executive director of the American Civil Liberties Union, said, "this clearly shows that the government was not able to meet the burden of proof that the Supreme Court had set for it, and rather than risk further embarrassment in a failed prosecution, they've decided to just send him out of the country. The whole case makes you wonder why was he really being held in the first place." (New York Times, 9/23/04)

 

Excerpts from the Hamdi and Guantanamo decisions:

 

Case Study 1: Writing for the majority, Justice Sandra Day O'Connor declared in favor of Hamdi that "as critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others....We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law....It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

 

Case Study 6: Writing for the majority, Justice John Paul Stevens quoted an earlier Supreme Court decision which declared, "Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint." Judge Stevens went on to declare that the Guantanamo prisoners "are not nationals at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

 

1. What constitutional issues are involved in the case?

 

2. What differences are there between the government position and that of civil rights groups?

 

3. Which position makes the best sense to you? Why?

 

4. Which is more important: a potential terrorist threat or the privacy of your computer, your credit card, your e-mail? Why?

 

5. Which is more important: a potential terrorist threat or your right to be informed of any charges against you, your right to a lawyer, your right to a fair and public trial? Why?

 

See "Teaching Critical Thinking" on this website. "The believing game" and "the doubting game," which are detailed in that activity, could be used to help students grapple with any of the case studies.

 

 

A "fish bowl" is a way to engage the entire class in one small group dialogue. This technique is especially useful when emotions are heated or when students bring vastly different perceptions to a controversial topic.

 

Invite five to seven students to begin the conversation on a case study issue. Ask them to make a circle with their chairs in the middle of the room. Try to ensure that this group reflects diverse points of view.

 

Ask everyone else to make a circle of chairs around the fish bowl, so you will have a smaller circle within a larger circle. Only people in the fish bowl can speak; thus, the process facilitates a kind of sustained, focused listening. One way to facilitate a fish bowl is this:

 

a. Ask a question and invite students in the fish bowl to speak to it in a "go-around." Each student in the fish bowl speaks to the question without being interrupted.

 

b. Designate a specific amount of time for clarifying questions and further comments from students in the fish bowl.

 

c. Invite students in the large circle to participate after about 15 minutes. A student who wishes to can tap a fish bowl student on the shoulder and move into that student's seat.

 

d. Continue this same procedure with additional questions or topics.

 

The fish bowl might also be used for a nine-person Supreme Court role-play on a constitutional issue raised by a case.

 

2. Group Go-Arounds

 

This is a way to multiply the number of conversations and to ensure that students will hear multiple points of view.

 

Divide students into groups of four to seven. Each group sits in a circle facing each other. You can either ask all groups to discuss the same issue or question or invite groups to choose which two or three questions they want to discuss.

 

In each group's "go-around," one student in the group responds to the chosen question without being interrupted. This process continues until all students who wish to speak have had their turn. At this point, groups can move to another question.

 

3. Mock Court

 

This gives students the opportunity to play the role of a judge on one of the cases.

 

Divide students into groups of three to consider a verdict on a case. They are to consider both constitutional issues and the threat that terrorism poses. After 15 minutes of discussion, they are to vote for a particular decision and report it to the rest of the class along with a brief summary of the majority's reasoning.

1. Ask students to respond in writing to one of the following quotes:

 

"We just have to be very, very careful that we don't misread some things we see, that we don't jump to conclusions. Our basic freedoms must be protected."

—General Ralph Eberhart, head of the Northern Command, which oversees the Pentagon's counter-terrorism efforts (New York Times, 12/13/02)

 

"National security officials are working tirelessly to address the profound challenges posed by an unconventional enemy whose deadly attacks rely upon stealth and surprise. But professional activists have fiercely resisted every legitimate attempt to aggressively target terrorists and their supporters for information. These ideologues employ the same tired rhetoric they have for decades—any effort to enhance intelligence gathering, without exception, is an assault on everybody's 'civil liberties.'"

—Daniel J. Popeo, Washington Legal Foundation

 

"If we are going to decide as a country that because of our worry about terrorism that we are willing to give up our basic privacy, we need an open and full debate on whether we want to make such a fundamental change."

—Cindy Cohn, legal director of Electronic Frontier Foundation, an organization that represented the Reef Seekers, New York Times, 12/10/02

 

2. Ask students to write an opinion on the fairness and legitimacy of one of the judicial decisions in a case study.

 

3. Ask students to write a letter to President Bush, a representative or senator expressing an opinion on a civil liberties issue since 9/11.

 

1. Compare the civil liberties treatment of the Guantanamo prisoners to that of eight German saboteurs who, early in World War II, were put ashore by a submarine on Long Island.

 

2. Examine the work of the American Civil Liberties Union or the Center for Constitutional Rights.

 

3. Study the Geneva Convention and how its provisions apply or don't apply to the Guantanamo prisoners.

 

4. Compare the civil liberties treatment of people in the case studies to that of people caught up in the Palmer raids after World War I or condemned by Senator Joseph McCarthy in the early 1950s.

 

See additional "further inquiry" suggestions in the "Civil Liberties and Terrorism" activity on this website.

 

American Civil Liberties Union—aclu.org

Newsweek, 7/8/02

The New Yorker, 12/9/02

The New York Review, 11/7/02

New York Times (various issues)

The Nation, 6/3/02

 

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This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.