Civil LIberties Issues Raised by War on Terror

The events of September 11th shocked our nation and shattered our sense of security. Americans learned that day that terrorism is not a threat distant in time or place, but a present reality. 

As Jews, we understand the need to combat terrorism aggressively and to provide law enforcement with the tools to combat this complex threat. We have witnessed too many terrorist attacks in Israel to count, and have been horrified by the unimaginable toll they have taken in human life. We recognize that there are ruthless and implacable foes who seek to harm Americans in any way and to whatever extent they can. We understand that terrorism, including the specter of chemical, biological, and nuclear attacks, calls for an approach that is not “business as usual.” 

The JCPA applauds the Bush Administration for its overall efforts to make our nation and our world safe for us and for our children. America has led not just an international mobilization, but is also creating a better understanding that terrorism is always wrong and can never be justified by political or other concerns. 

Some of the efforts to investigate and prosecute suspected terrorists, however, have raised civil liberties concerns. We recognize that the target of the attacks on September 11th, perhaps even more than the thousands of victims and their loved ones, was our pluralistic and democratic way of life. As Jews, we cherish the values that the terrorists sought to destroy, and we are committed to protecting them. The JCPA Mission Statement says, “our community has a direct stake – along with an ethical imperative – in assuring that America remains a country wedded to the Bill of Rights and committed to the rule of law, whose institutions continue to function as a public trust.” 

The JCPA believes it is essential that a proper balance be struck between combating terror and protecting civil liberties. We understand that failure to intercept a terrorist plot may lead to very significant loss of life. Preventing acts of terror may indeed lead to different determinations about how to apply civil liberties principles than might be made in other circumstances. We recognize that persons of good faith may differ as to what constitutes the proper balance between combating terror and protecting civil liberties, and we believe that the debate on this issue should be free of rancor, invective and partisanship. Further, we believe it is important that, in making decisions which may impinge upon civil liberties, our government not allow legitimate and urgent concerns to lead us to act without taking the time to assess and debate fully the civil liberties implications of proposed steps. That, to our later regret, has too often been the case in the past. 

We are particularly concerned about three instances in which we believe the government has apparently failed to strike the proper balance:

1. The Department of Justice directive allowing federal officials, without judicial approval, to listen in on conversations between certain detained individuals and their lawyers. This sweeping measure, which was instituted without congressional approval or public deliberation, undermines the due process protections in existing law that prevent such eavesdropping from taking place without a court order. The directive has the effect of weakening not only the protection of attorney-client privilege, but the basic right to competent legal counsel altogether. Lawyers cannot advocate for their clients effectively if they must constantly fear undermining their cases by merely speaking with the individuals whom they are sworn to represent. 

1. An order by Attorney General John Ashcroft allowing immigrants to be detained without charge for an unspecified “reasonable time” during a “national emergency.” This order gives the Justice Department effectively the same power of indefinite detention that it sought – and was specifically denied – in the anti-terrorism legislation. There may be a need to detain certain individuals who have been determined by a court to be suspects or potential witnesses in cases of terrorism and who might flee if released. However, many feel this regulation violates not only the due process protections of the Sixth Amendment, but the will of Congress as well. 

1. The proposed use of military tribunals to try suspects. Our government should have some flexibility in the manner in which suspected terrorists are prosecuted. Open military tribunals, bound by the traditional protections that govern both our civilian and military courts, might be an important tool in prosecuting the exponents of terror. However, as they are described in President Bush’s executive order, these courts would operate behind closed doors and without many of the constitutional and procedural safeguards we believe are vital to protecting our nation’s cherished commitment to civil liberties and equal justice under the law. As the Defense Department finalizes guidelines for the tribunals, it should take steps to preserve the principles that make both justice and freedom essential values of America’s legal fabric. 

Finally, we strongly support the use of sunset provisions that Congress has included in many of its actions in addressing this crisis. They require us to evaluate the successes and failures of the anti-terrorism provisions and, accordingly, we call upon the community relations field to study and examine the various measures that are being used or proposed to investigate and prosecute suspected terrorists. We believe that the best way to ensure that these measures comport with the Constitution and the values enshrined in it is, where possible and practical, for such measures to be discussed, debated, and legislated utilizing our cherished system of checks and balances. We commit ourselves to playing a leading role in that vital effort.