To label lawyers a relatively unflappable lot doesn't require a leap of faith. Good lawyers and judges don't scare easy, which made the Massachusetts Bar Association 2002 Annual Conference's Bench/Bar Forum on the civil liberties implications of the 2001 USA Patriot Act all the more riveting. The tone wasn't just cautionary. It bordered upon alarm.
"This is a story that, depending upon how our government and we as lawyers and we as a bar association respond, will write its own ending," said ACLU staff attorney William C. Newman. "I think (recent opinions and statutory law) have disturbing implications."
Five panelists, along with moderator and U.S. District Court Judge Patti B. Saris, tackled the constitutional questions and overarching legal issues resulting from Sept. 11. Of particular concern was the ratification of the USA Patriot Act last Oct. 24.
Speaking on immigration rights, Boston College Law School professor Daniel Kanstroom was eloquent and informative. He opened by referencing 19th century political philosopher Alexis de Tocquville's insightful observation that "Every [American] political question in this country eventually becomes a legal one." He went on to make a far more sobering point about the Patriot Act's broad implications for immigration law and immigrant rights.
"The events of 9-11 were like the proverbial 13th ring of the clock, calling into question all of the rings that came before (regarding immigration rights)," said Kanstroom. "We're going to learn a lesson in this era that earlier generations learned: That threats to peace and safety may come from within as well as without. But that the incremental marginalization of a particular social group erodes our best legal traditions and may, in the long run, be a self-made formula for social disaster."
U.S. District Court Judge Nancy Gertner offered a measure of statutory relief by echoing attorney Walter Prince's Friday notation that most of the Act's provisions carry a 2005 sunset clause (requiring a joint resolution of Congress). But Judge Gertner also detailed a number of notable exceptions and fairly pleaded for further debate on the issues surrounding domestic terrorism.
"There is no question that a democratic society has a right to respond to terror and, in certain circumstances, suspend or limit civil liberties," said Judge Gertner. "But the critical question is when, where and for how long?
"The current definition of domestic terrorism under the law is as follows," she continued. "'Activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any state; (Acts) that appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.' 'Appear to be intended'? What criminal statute has this sort of language? What activity in this country over the past 200 years would fall into this category? The overall pattern (of these statutes) should create among us more debate than we've seen thus far. The issue is what are we fighting and for how long will we fight it."
Former MBA president and current ABA Terrorism and the Law task-force member Michael Greco followed by outlining new statutory law relating to potential monitoring of attorney-client conversations and the use of military tribunals. Regarding those tribunals, Greco explained that under the terms of the military order signed by President Bush in November, "certain non-citizens in the war against terrorism" are not permitted to seek "any remedy" or "maintain any proceeding" in any U.S. federal or state court, foreign court or international court.
"The effect of the language is to deny detainees and defendants the privilege of the writ of habeas corpus, prolong their detention indefinitely and deny their right to appeal upon conviction," explained Greco. "Military commissions under the order may function without regard to the 'principles of law and the rules of evidence generally recognized in the trial of criminal cases.' The language of the order … embraces serious constitutional and fairness concerns."
Greco went on to note that, since Sept. 11, a large number of foreign nationals have been detained. The Justice Department has confirmed that number is in excess of 1,000, but as recently as Jan. 24, announced it has no intention of releasing further information, citing national security purposes.
"The danger we run at this moment in our nation's history is that in the effort to secure the nation, which must be done, we will do harm to our way of life, our justice system and to our civil liberties in a way that the terrorists themselves could not have predicted they would have succeeded in doing," said Greco. "We cannot, we must not permit our government leaders to trample on the rights of our citizens in the name of protecting national security. Those two goals are not mutually exclusive."
Panelist Donald K. Stern, a former U.S. Attorney, also suggested that the diminution of judicial authority under the USA Patriot Act harbored potential inequities.
"It's not clear the judicial branch will have the ability of oversight, nor is it clear there will be the (necessary) checks and balances within the system," he said.
"The single biggest thing that's disturbed me about this is the willingness in some quarters to silence lawyers on the subject. Over time, good things will erode unless we have those checks and balances and that dialogue."