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Criminal Justice Magazine
Summer 2002
Volume 17 Issue 2

Terrorism and the Citizenry’s Safety

By Andrew E. Taslitz

In 1995, Timothy McVeigh exploded an incendiary device that demolished the Murrah Federal Building in Oklahoma City. ( See Alan Calnan & Andrew E. Taslitz, Defusing Bomb-Blast Terrorism: A Survey of Technological and Regulatory Alternatives, 67 Tenn. L. Rev. 177, 180–84 (1999).) Popular outrage at this tragedy, involving what the media dubbed the worst act of terrorism on United States soil, prompted congressional action. Among the actions taken was the creation of a National Research Council Committee on bomb-blast terrorism, on which I was lucky enough to serve. ( See National Research Council, Containing the Threat from Illegal Bombings: An Integrated National Strategy for Marking, Tagging, Rendering Inert, and Licensing Explosives and Their Precursors 1–19, 167–72 (1998).) Our committee recognized that increased security comes at an increased cost, both to the economy and to civil liberties. Accordingly, we recommended escalating degrees of antiterrorist safeguards as the levels of real and perceived danger rose. We left the assessment of threat levels to the nation’s political institutions. Nevertheless, we chose a graded approach because, despite the Oklahoma City tragedy, many of us believed that costly change was then not politically feasible. We simply did not believe that the politicians or the public were worried enough about terrorist threats to take actions that might require serious and imminent sacrifice. We also understood that the burden of meeting bomb-blast terrorism—the only sort of terrorism within our committee’s charge—might pale in comparison to the costs of addressing bioterrorism, cyberterrorism, chemical terrorism, nuclear terrorism, and the other enormously destructive "isms" in the terrorist arsenal.

All these assumptions changed on September 11, 2001, when al-Qaeda terrorists crashed two passenger jets into the World Trade Center Towers, destroying them, taking about 3,000 lives, and causing untold economic damage. That same day another group of al-Qaeda terrorists crashed a third hijacked jet into the Pentagon. This twin assault on the nation’s political and financial capitals was followed by an anthrax attack by an as-yet-unknown assailant. ( See Andrew E. Taslitz, The Fourth Amendment in the Twenty-first Century: Technology, Privacy, and Human Emotions, 65 L. & Contemp. Problems 102, 157 (2002).) President George W. Bush declared a war on terrorism—a war that he said would require much sacrifice and take many years to win. This war was to be fought on multiple fronts, preparing us to repel any of the horrific "isms" to which terrorists might turn. Poll after poll showed the American public to be fully supportive of the president’s vision of sustained warfare. The al-Qaeda attacks came to be seen as a wake-up call, spurring us into action to avoid what could be far worse future assaults. The threat level seemed, and still seems, to be at its highest. Given the massive danger to human lives, the costs of safety now seem small.

Heeding the president’s call, Congress adopted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, popularly known as the "Patriot Act." The Patriot Act is a lengthy and complex piece of legislation, but its provisions create significant changes in the federal criminal justice system. Those changes include: (1) authorizing the detention for questioning for up to seven days of individuals who are certified by the U.S. attorney general or the commissioner of immigration as immigrants suspected of involvement in terrorism; (2) "roving wiretaps," permitting law enforcement authorities to obtain from a special intelligence court taps on any telephone used by a person suspected of involvement in terrorism; (3) the availability of nationwide search warrants for terrorism investigations; and (4) the sharing among intelligence and criminal justice officials of certain information on investigations. ( See Highlights of New Antiterrorism Law, www.fedbar.org/antiterrorism.html.) Other provisions permit officials to subpoena the addresses and times of e-mail messages sent by terrorism suspects and enable the Treasury Department to act more decisively against money laundering. Another provision authorizes national security investigators to obtain wiretap authority in terrorism cases if foreign intelligence operations are a significant purpose of the investigation rather than, as was previously true, the only purpose of the investigation. ( Id.)

Meanwhile, President Bush signed an executive order permitting trial before a special military tribunal, rather than a civilian court, of members of al-Qaeda; of people involved in acts of international terrorism against the United States; and of people knowingly harboring such terrorists. (Office of the Press Secretary, President Issues Military Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, www.whitehouse.gov/news/releases/2001/11/print/20011113–27. html.) Under the terms of an implementing order of the Department of Defense, the due process safeguards operating in such tribunals will be attenuated relative to civilian courts. For example, flexible evidentiary rules will potentially admit far more hearsay than would be the case in a civilian trial, and less-than-unanimous votes can support a conviction in all non-death-penalty cases. (Department of Defense, Military Commission Order No. 1.)

Furthermore, Attorney General John Ashcroft issued an order permitting the attorney general to monitor communications between a client-inmate and his or her attorney when the attorney general has "reasonable suspicion" to "believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of violence or terrorism." ( See Att’y Gen. Order No. 2529–2001, National Security: Prevention of Acts of Violence and Terrorism, 25 C.F.R. 500–01 (2001).) The order provides a number of limitations on who may use these communications, for what purpose, and how they may be obtained. The order’s perceived authorization of an incursion into the traditional attorney-client relationship sparked significant protest in the legal community.

Further legal and attitudinal changes were sparked at the local level as well. Notably, protests against the growing use of video surveillance in public places, which had been loud before September 11, now became more muted. ( See Taslitz, Twenty-first Century, supra, at 102 n.90). Consequently, Washington, D.C., joined the list of cities embarking on such surveillance programs. ( See Statement of Ronald Goldstock on Behalf of the American Bar Association Before the Subcommittee on the District of Columbia of the Committee on Government Reform, U.S. House of Representatives, on the subject of Video Surveillance in the District of Columbia.) Similarly, as a later article in this symposium makes clear, the growing sentiment against racial profiling reversed course with many Americans, including a significant percentage of the African-American community, supporting the profiling of those of apparent "Middle Eastern" ancestry as a helpful tool in the war on terrorism.

Informed citizens

Few dispute the daunting challenges facing the nation in this war. The potential dangers to the safety of the persons and property of American citizens are vast. The debate, therefore, is not over whether to act, but how to do so. What changes in the legal landscape will be required to protect our safety? Ultimately, answering that question is a fundamental goal of each of the essays in this symposium. Safety, though, is not only physical but also political. In the process of protecting our persons and our homes we must also protect our constitutional spirit, the rights-based culture that partly defines the American people and that safeguards individual liberty. ( See Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40 B.C. L. Rev. 739, 765–66 (1999).) Just as the bomb-blast terrorism committee on which I served in the wake of the Oklahoma City bombing recognized the need to weigh costs and benefits, including the cost to civil liberties, so must we now continue our cost-benefit analysis. Only then do we protect the safety not only of our individual citizens and residents but of our nation as a collective political whole.

I take no position here on whether we have yet struck the proper balance. But the question must be asked, and, though answered differently by each of the authors in this issue, those differences should contribute to the healthy debate that also defines the American character. "Americans," historian Kermit Hall has said, "perhaps more than any other people on earth, live by the law. This is because in America the law is a form of civic religion, a set of values, ideals, and processes to which the American people have been as committed as they have been to any spiritual code." (Kermit Hall, Introduction, The Oxford Companion to American Law vii (2002).) The Framers indeed understood that the Constitution would be but a flimsy "parchment barrier" to tyranny absent a citizenry imbued with the character traits and culture required of a freedom-loving people. ( See generally Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution (1997).) Indeed, James Madison, who originally opposed a Bill of Rights, came to support the idea partly because its mere existence would teach "maxims, by which every wise and enlightened people will regulate their conduct . . . ," maxims that, "as they become incorporated with the national sentiment, counteract the impulses of interest and passion." (11 Papers of James Madison 298–99 (Robert A. Rutland et al. eds., 1983).) Madison continued, explaining that, "[whenever] usurped acts of the Government [occur] . . ., a bill of rights will be a good ground for an appeal to the sense of the community." ( Id. at 299.) The people, in other words, aware of their rights, would monitor the government for abuses and act to correct them. Said Madison: "The people who are the authors of this blessing [the Constitution], must also be its guardians." (14 The Papers of James Madison 218 (Robert A. Rutland et al. eds., 1983).)

Madison expressed a widely accepted ideology among the Framers that an informed and enlightened citizenry was central to the success of a republic. ( See generally Andrew E. Taslitz, Slaves No More: The Implications of the Informed Citizen Ideal for Discovery Before Fourth Amendment Suppression Hearings, 15 Ga. St. L. Rev. 709 (1999).) The Bill of Rights itself created institutions necessary to making an informed citizenry a permanent part of the constitutional landscape. The First Amendment most obviously did so with its protections for the freedoms of speech and of the press, freedoms understood ever more expansively over time. ( Id. at 727–28). Such freedoms enabled information to flow to citizens so that they could choose and monitor their leaders wisely. First Amendment rights of petition, assembly, and association similarly empowered the people to hear and learn from one another, to seek to hold the government accountable, and to expose abuses to the light of day. ( Id.)

Too often ignored, however, is the critical role played by the Bill of Rights’s criminal procedure provisions in promoting an informed citizenry. Many of these provisions cluster around two specific protections: the rights to a public trial and to a trial by jury, rights that, broadly understood, will take center stage in the essays comprising this symposium. ( See id. at 728–34.)

A public trial involves the citizenry more actively in the daily monitoring of governmental abuses than do periodic elections. ( See Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 116–19 (1997).) The open nature of the trial proceedings makes it hard for judges to give in to partiality. ( See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 110–14 (1999).) Public scrutiny of witnesses makes it harder for them to lie, but also harder for government officials to hide their own misbehavior. ( Id.)

The Confrontation Clause was similarly designed to aid, by public disclosure, in "making crucial workings of the Government visible and keeping the overwhelming prosecutorial powers of the government in check." (Margaret A. Berger, The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model, 76 Minn. L. Rev. 557, 562 (1992).) Cross-examination accomplishes this because it helps to bring out more information than the government would otherwise make available. ( See Andrew E. Taslitz, Catharsis, the Confrontation Clause, and Expert Testimony, 22 Cap. U. L. Rev. 103, 122–26 (1993).) William Blackstone, perhaps one of the leading legal scholars on which the Framers relied, clearly linked the Confrontation Clause and public trial ideas as serving related purposes:

This open examination of witnesses’ viva voce, in the presence of all mankind, is . . . conducive to the clearing up of the truth. . . . Besides, the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled: and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial.

(3 William Blackstone, Commentaries on the Laws of England 372–73 (1765).)

The Compulsory Process Clause serves a similar function by allowing the defendant to use his or her own witnesses "to tell the jury and the gallery what the prosecutor’s witnesses had left out." (Amar, supra, Bill of Rights, at 115.) The right to counsel was, of course, necessary to make any of this work, for there is no reason to believe that even the most intelligent of defendants will be skilled in witness examination or learned in courtroom procedure and rules of evidence. ( See Amar, supra, First Principles, at 138–39). The modern Supreme Court has similarly extended the Sixth Amendment right to the assistance of counsel so that an indicted defendant’s uncounseled statements may not be induced by the government, thus demonstrating a concern as well with the government’s ability to shape evidence in secret through inquisitions. ( See Massiah v. United States, 377 U.S. 201 (1964); Berger, supra, at 588–87; Taslitz, Catharsis, supra, at 123.) Similarly, the Court has held that there is a Sixth Amendment right to counsel at a postindictment lineup because of the danger that an improperly conducted lineup arranged by the government will result in a secretly induced suggestive identification. ( See United States v. Wade, 388 U.S. 218 (1967); Taslitz, Catharsis, supra, at 123.)

The modern understanding of the Fifth Amendment also extends to the preindictment phase precautions against the state’s secret shaping of evidence. In Miranda v. Arizona, 384 U.S. 436 (1966), the Court required the police to give warnings that educate the suspects about, and show respect for, their privilege not to speak. ( Id.) Those warnings have been widely effective in educating the public more generally about their rights. ( See Lawrence M. Friedman, Crime and Punishment in American History 303–04 (1993).) The Miranda decision also created a Fifth Amendment right to counsel during custodial interrogation, even in the preindictment phase. ( See Andrew E. Taslitz & Margaret L. Paris, Constitutional Criminal Procedure 666 (1997).) In the Court’s view, counsel would, in part, serve as a monitor who could bring to light any police abuses. The mere shining of that light would deter police misconduct. "With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised, the lawyer can testify to it in court." ( Miranda, 384 U.S. at 470–71.)

Lawyers, of course, also play a critical role in at least part of a second cluster of provisions that promote an informed citizenry: those centering on the petit and grand juries. For the Framers, the criminal petit jury was fundamentally a political institution, embodying republican self-government. ( See Akhil Amar & Alan Hirsch, For the People: What the Constitution Really Says About Your Rights xii-iv (1998).) Jury service teaches citizens their rights and duties, while requiring their active participation in government. ( Id.) The Anti-Federalists, whose efforts led to the addition of the Bill of Rights, put it thus in the Federal Farmer essay: "[The people’s] situation, as jurors and representatives, enables them to acquire information and knowledge in the affairs and government of the society; and to come forward, in turn, as the sentinels and guardians of each other." ( Letters from the Federal Farmer (IV), reprinted in 2 The Complete Anti-Federalist 250 (Herbert J. Storing ed., 1981).) Jurors must be fully informed at trials to make wise judgments. ( See Amar, supra, Bill of Rights, at 83–84, 93–94.) But, via the public trial protections, what the juries learn will educate the general public as well. ( Id. at 93–96.)

The grand jury, at least as originally conceived, played an even greater informational function. ( See U.S. Const. amend. VI.) The grand jury could thwart unfounded prosecutions, especially those used by incumbents against their critics. ( See Amar, supra, Bill of Rights, at 84–85). Colonial grand juries twice refused to indict publisher John Peter Zenger, who was later acquitted by a petit jury when the government instead proceeded by information. ( Id.) Grand juries of the 1760s and 1770s also refused to indict Stamp Act protestors and other rebellious speakers. ( Id.)

Most importantly, the grand jury had the power of presentment—a document publicly stating its accusations. ( Id. at 85.) Through this document, the grand jury could publicize suspicious government nonprosecution decisions. ( Id. at 85–87.) Furthermore, "[t]hrough presentments and other customary reports, the grand jury in effect enjoyed a roving commission to ferret out official malfeasance or self-dealing of any sort and bring it to the public at large." ( Id. at 85.) James Wilson said of the grand jury:

All the operations of Government, and of its ministers and officers, are within the compass of their view and research. They may suggest publick [sic] improvements, and the modes of removing publick inconveniences: they may expose to publick punishment, publick bad men, and publick bad measures.

(2 The Works of James Wilson 537 (Robert Green McCloskey ed., 1967).)

If the modern grand jury often fails in these noble goals, the goals remain, and the failures, as an article in a recent issue of this publication recognized, may stem from the absence of defense counsel and the inattention to reminding the grand jury of its independence from the prosecution. (Michael Waldman, Grand Jury Ripe for Reform: Council for Court Excellence Study Suggests Changes, 16 (No. 4) Crim. Just. 4–7 (Winter 2002).)

Reconstructing the citizenry

The original Bill of Rights limited only the powers of the federal government. But the Fourteenth Amendment incorporated most of the Bill of Rights provisions against the states. ( See Taslitz & Paris, supra, at 24–25, 396–404.) In doing so, the Fourteenth Amendment often mutated or amplified the meaning of particular provisions. ( Id. at 396.) The Framers of the 1860s sometimes had very different understandings and goals than did those of the 1780s and 1790s. The Fourteenth Amendment was part of the 1860s Framers’ effort to eradicate racial slavery and its badges and incidents. ( See Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. Rev. 1193, 1266, 1275–81 (1992).) The Bill of Rights criminal procedure provisions must, therefore, in a post-Reconstruction world, be seen as centrally concerned with the eradication of racial discrimination in the criminal justice system. An informed citizenry must thus be aware of such discrimination and be committed to agitating toward its end. ( See Taslitz, Informed Citizen Ideal, supra, at 771–75.)

One particular concern of the 1860s Framers was with the connection among free speech, Fourth Amendment, and equality values. ( See generally Andrew E. Taslitz, Hate Crimes, Free Speech and the Contract of Mutual Indifference, 80 B.U. L. Rev. 1283 (2000).) Slavery was, in part, defined by the deprivation of Fourth Amendment rights to freedom of movement, privacy, and property. ( See Andrew E. Taslitz, Stories of Fourth Amendment Disrespect: From Elian to the Internment,__ Fordham L. Rev. ____ (forthcoming 2002).) Slaves who sought to flee or move about without passes were stopped and rudely punished by slave patrols. Even on the plantation, how a slave moved in doing his or her work was heavily regulated, a control sanctioned and enforced by the law and the state as well as the overseer. Slaves had no freedom, even in their cabins, from the prying eyes of their owners, who also could take away possessions upon a whim, again with the imprimatur of the state. (Taslitz, Informed Citizen Ideal, supra, at 740–51.)

But the old South extended these controls to abolitionists and other slave sympathizers. Dragnet sweeps were made of suspected fugitive-slave harborers, outside agitators were excluded, and dissenters were banished. ( Id. at 738–39.) Search warrants were issued to search for antislavery books; statutes allowed the whipping of ministers advocating an antislavery gospel. ( Id.) Search and seizure powers were, in short, brutally used to suppress dissenting speech, precisely the sort of speech necessary to an informed citizenry. ( Id.; Taslitz, Mutual Indifference, supra, at 1338–51, 1368–79.) Even after the Civil War and the passage of the Thirteenth Amendment abolishing slavery, state officials, under cover of mask and night, and Confederate veterans, often in uniform, beat and killed newly freed slaves and their white sympathizers. (Taslitz, Informed Citizen Ideal, supra, at 746–49; Taslitz, Mutual Indifference, supra, at 1379–90.) Black Codes adopted by Southern states authorized labor contracts prohibiting blacks from leaving their employers’ premises, provided for the arrest and return of blacks breaching labor contracts, required blacks to have passes to travel from one county to another, and otherwise sought to recreate de facto slavery. (Taslitz, Informed Citizen Ideal, supra, at 746–48). The 1860s Framers, thus, saw unwarranted race-based and viewpoint-based seizures of persons as critical tools for undermining the goals of an informed citizenry. ( Id. at 748–51). This observation will be critical to appreciating two essays in this symposium that explore the logical and constitutional infirmities of racial profiling.

Monitorial citizens

Modern life has become enormously complex and, as a consequence, specialized. In a world of rapid technological change, rising populations, and spreading market competitiveness and decentralization, no one is a jack-of-all-trades. Similarly, no citizen can reasonably be expected fully to track or understand events in the stock market, foreign affairs, racial-, gender-, or other group-based discrimination, and the myriad matters of concern that bombard us in daily media reports. A specialized citizenry is the only practical modern conception. (Taslitz, Informed Citizen Ideal, supra, at 757–61.)

Simultaneously, the informed citizen ideal has been supplemented by a rights-bearing citizen ideal. Citizens need not wait for elections to be active in their roles as citizens, nor need they limit between-election activities to calls and letters to representatives or the occasional random call to jury service. They can turn to courts and administrative agencies, and do so on a daily basis, for recognition and enforcement of a generous notion of their rights. ( Id.) Citizens have different rights in their different roles, locations, and activities. Rights govern what happens in schools, the workplace, the home, environmental protection, higher education, the professions, and the political process. ( Id.)

In such a world, no individual can routinely be an "informed citizen." Instead, as Michael Schudson has argued, each of us better functions as a "monitorial citizen." (Michael Schudson, The Good Citizen: A History of American Civil Life 310–14 (1998).) Monitorial citizens do not expect to be fully informed about the issues of the day. Rather, they scan their environment, read newspapers, watch television, listen to the radio or the sermons of the clergy, and observe discord and injustices in their everyday lives. ( See Taslitz, Informed Citizen Ideal, supra, at 759.) When they spot issues that match their interests, needs, and demands, they study further and act in the specialized aspects of their lives in which they can have the most impact. ( Id.)

Criminal defendants, though among the most despised of society’s members, thus have a special role to play as monitors of police abuse. Their incentive to challenge abuses—avoiding the stigma of criminal conviction and the resulting loss of liberty—is high. ( Id. at 759–61.) Furthermore, because even the indigent are constitutionally entitled to counsel, they have a special expertise, through their lawyers, to uncover official wrongdoing. ( Id.)

None of these observations mean that any of the government’s actions in the war on terrorism are wrong. Every constitutional right must bend, where necessary, in the face of countervailing state interests, protecting the physical safety of the citizenry being an especially weighty such interest. ( See Kate Stith , The Government Interest in Criminal Law: Whose Interest Is It Anyway? in Public Values in Constitutional Law 137, 137–61. (ed. Stephen E. Gottlieb (1993)).) But the ideology of an informed citizenry committed to monitoring governmental abuses, and the critical role of lawyers in aiding the citizenry, requires caution and a quest for the least intrusive of alternatives for protecting our citizenry’s physical safety.

Safety for persons and their rights

Each of the essays in this symposium implicitly explores aspects of the informed citizen ideology and how its safety should be balanced against other concerns. Several of the essays consider what to do when, because of wartime passion or secrecy needs, the citizenry is unlikely to be informed or deliberative. Others turn to lawyers as necessary to making the power of specialized citizen subgroups felt in the halls of Congress and the chambers of the judiciary. Still others see no way to protect individual rights effectively in times of high passion other than by exhorting the courts to do right.

Though many of the essays are critical of government policy, some merely suggest fine-tuning, while at least one essay zealously defends a wide range of the administration’s policies. One theme in some of the essays is that the changes in the legal landscape have implications well beyond cases specifically involving terrorism and thus require special attention. Several of the essays also deplore limitations placed on the sanctity of the attorney-client relationship. Most of the essays offer very practical advice to the practicing criminal lawyer on how to deal with a wide array of problems, from grand jury representation, to computer fraud, to invasion of the attorney-client privilege. Indeed, part of the point of all these essays is that the everyday minutiae of legal practice and the daily struggles of lawyers to effectively represent clients implicate much of what is best about America. Some essays reflect a healthy skepticism, finding sounder approaches to achieving the citizenry’s physical safety precisely in those alternatives to the current legal regime that give the safety of constitutional rights equal priority.

David Harris’s essay on racial profiling fits into this last category. Harris emphasizes that, before September 11, 2001, the courts had all but abandoned any efforts to deter racial profiling by the police. That abandonment was especially unfortunate because new data that became available in the late 1990s show that racial profiling had been an ineffective means of criminal investigation. "Hit rates"—the rates at which police find the drugs, guns, or whatever else they seek—are significantly lower for race-based stops than for nonprofile policing stops. The profiling of African-Americans and Latinos promoted distrust of the police, cynicism about the law, and increased skepticism about police officer credibility. The pre-9/11 racial profiling problem had, however, begun to be addressed, despite the courts’ abdication of any real oversight role, because concerned, activist citizens successfully revealed abuses, mobilized public opinion, pushed for legislative solutions, and pressured police departments to adopt administrative reforms. Harris argues that the "new" racial profiling of persons supposedly of Middle Eastern appearance is likely to be as ineffective as the older forms, for similar reasons. Focusing on persons of a certain race or ethnicity also expands the suspect pool so that police resources are spread thin while heightened distrust of the police among Middle Eastern communities in the United States cuts off valuable sources of information. Inadequate resources are left to investigate the most likely suspects based upon behavioral cues. Yet, without directly saying so, Harris hints that the same citizen activism that broadened public support for the African-American and Latino victims of racial profiling may not come to the rescue of Middle Eastern victims in a wartime atmosphere. If true, the great pity, he suggests, is that the public as a whole will be less safe, rather than more so, from terrorist intrigue.

Sara Sun Beale and James E. Felman find a need for heightened judicial oversight of the executive branch when citizenry oversight is weak in the specific context of the modern grand jury. Today’s grand jury, contrary to the Framers’ optimistic aspirations, is more a powerful arm of the executive branch than a restraining force of the people. Indeed, "the grand jury is the most powerful investigative agency in the federal criminal justice system." Individuals who might refuse to talk to the FBI must testify on penalty of punishment for contempt once subpoenaed to appear before a grand jury. Grand jury subpoenas enable prosecutors to obtain documents otherwise outside their reach because of the absence of probable cause. Immunity can be given to witnesses, depriving them of any claim of a right to silence based upon the privilege against self-incrimination. The grand jurors hear neither from defense counsel nor a judge, but only from the prosecutor, who usually selects the witnesses to be called and instructs the grand jury on the law. Yet all this is done outside the public eye because of the duty of grand jury secrecy. That duty, subject to certain statutory exceptions, prohibits anyone but grand jury witnesses (who are aware only of their own testimony) from disclosing anything that happens before the grand jury. Even under the exceptions, disclosure of grand jury material to those not directly involved in the criminal investigation is largely permitted only upon a court order supported by particularized findings demonstrating a specific need for the information.

There are, of course, the authors explain, good reasons for the secrecy rule. Absent secrecy, many witnesses might be reluctant to come forward or to testify frankly, fearing retribution by those against whom they testify. Furthermore, secrecy protects accused persons who are later exonerated by the grand jury from avoidable public ridicule.

The Patriot Act, however, for the first time permits disclosure, without a prior court order, of grand jury material involving "foreign intelligence" information to many federal agencies whose duties are unrelated to law enforcement. The authors think it unlikely, however, that these provisions will encourage witnesses to flee because there is no reason to believe that the information will make its way back to those who might wish to wreak retribution on the witnesses. Moreover, the authors conclude, the danger of additionally deterring witness candor before the grand jury is small, though not nonexistent, given that there are already a number of technical exceptions to the secrecy rule that laypersons are unlikely to understand. However, agencies not traditionally involved in enforcing criminal law, the authors believe, are less likely than law enforcement to appreciate the need to protect reputations. Given national security needs, the authors conclude, on balance, that disclosure of some grand jury material regarding foreign intelligence should be permitted to certain federal agencies not directly involved in law enforcement. But they worry that the current approach under the Patriot Act is too broad, primarily because of the absence of judicial review.

Without prior judicial review, the executive branch decides in the first instance what may be disclosed and to whom. Furthermore, disclosure is permitted without any showing of a need for the information. Additionally, disclosure for some purposes might encourage prosecutors to use the grand jury’s power for purposes other than criminal investigation or to expand grand jury inquiries beyond their current scope, adding to the expansive investigative power of the grand jury. Moreover, closer links may form between foreign intelligence and domestic law enforcement communities, leading to a dangerous militarization of law enforcement culture. But, because the Patriot Act’s grand jury secrecy exception extends only to other government agencies, the citizenry can play little role in monitoring prosecutorial and police abuses:

Few if any means exist to challenge such an expansion [of the grand jury’s power], or even to learn whether it is occurring. The general rule of grand jury secrecy leaves the press and public with almost no available information about grand jury investigations. No reporter, interest group, or member of the public may attend the proceedings to get an overview, and even after the fact, no information is made available to the public regarding the subject and scope of the grand jury investigation, the names of those called as witnesses, or the results of the investigation. . . .

Absent an effective citizen watchdog, prior judicial scrutiny of disclosure is a sorely needed restraining influence.

Eric Freedman, in his essay about military tribunals, also worries that the courts may abdicate their oversight role in an atmosphere of war hysteria in which the public at large may fail to serve as an adequate guardian of rights. The tribunals, in Freedman’s view, permit continued detentions contrary to basic principles of due process, whether those principles are rooted in domestic or international law. Freedman’s primary concern is that the "Great Writ" of habeas corpus remains available to those persons facing military tribunals or to illegal immigrants otherwise wrongfully detained in the war on terrorism. The writ enables courts to release individuals found to have been imprisoned unlawfully, "thus enforcing the rule of law and frustrating governmental oppression." For Freedman, the history of the battle against such oppression must be understood to include "[a]ttempts to extend the range and efficacy of the writ," which has "accordingly been inseparably connected for centuries with attempts to secure justice for those who at any moment find themselves execrated by the dominant forces in society. . . ." Such execration denies the oppressed groups’ real political power or a public voice. Where that is so, Congress cannot be trusted to protect the downtrodden. Only the courts remain.

Any justice system inevitably makes mistakes, and those mistakes will grow without vigilant guardians against error. Freedman, therefore, urges courts to reject narrow understandings of the constitutional provision for the Great Writ, which view the provision as merely exhorting Congress to pass legislation providing for the writ. A more generous interpretation, giving courts inherent power to issue the writ absent affirmative congressional action suspending the writ, action itself subject to later judicial review, should be embraced. This more expansive interpretation is especially needed now to protect a group deeply despised by the broad American public: those suspected or accused of, though not yet proven to be, engaging in terrorist acts. Lawyers have a critical role to play in this process, for lawyers can help to rally specialized subsets of the citizenry to safeguard due process. Says Freedman, "The first and best defense against regressive congressional legislation is for concerned individuals and groups to take every opportunity to drive home to our representatives the message that due process is not optional, nor are its advocates apologists for terrorism."

Frank Wu makes a similar point about the role of lawyers and the need to protect hated groups in his return to the subject of racial profiling. Wu ties the analysis of current profiling of Arab-Americans to the World War II internment of Japanese-Americans and the subsequent Supreme Court case law concerning the internment. Wu does not argue that current profiling efforts are as widespread or invasive as the massive, years-long roundup and detention of over 100,000 Japanese-Americans. But he does see analogies between present circumstances and the curfews and detentions of hundreds of Japanese-Americans in the process leading up to the internment. ( See also Taslitz, Stories of Fourth Amendment Disrespect, supra.) More importantly, he sees a similar logic underlying the internment process and the current detention of Arab-Americans. The flawed logic is this: Because those who attacked the United States shared a particular perceived immutable quality (being "Japanese" or "Arabic" in appearance), then most or all members of the group having that characteristic are equally dangerous to the nation.

Most importantly to Wu, however, is that the internment cases, particularly Korematsu v. United States, 323 U.S. 214 (1944), condemned racial animus toward a group as a basis for detention, laid the groundwork for the doctrine of "strict scrutiny" of laws seemingly discriminating against "discrete and insular minorities," but denied that the challenged government actions involved racial hostility. Recently, in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the Court cited the internment cases for the proposition that strict scrutiny need not be fatal to legislation’s constitutional validity, yet the internment was then "the only instance extant of an invidious racial classification affecting a minority group being subjected to strict scrutiny and surviving the test." This resurrection of the internment cases troubles Wu because all seem to concede today that the internment was morally wrong without clearly specifying why it was wrong. The modern Court’s apparent approval of the internment cases’ logic may lead to an understanding of the internment that justifies current profiling.

If the internment was wrong because the racial generalizations made were wrong, says Wu, that opens up the possibility of (unsupportably, in his view), the government arguing that current generalizations about Arab-Americans are empirically right. If the internment was wrong because it denied minimal due process, then today’s detained Arab-Americans are entitled to a modicum of due process but not to equal protection. On the other hand, argues Wu, if the internment was wrong because its use of racial generalizations imposed unacceptable social costs, then such costs merit heavy weight in assessing the validity of racial profiling today. Those costs include reduced, rather than enhanced, physical safety, unnecessary emotional pain, hostile Balkanization of the American public, and governmental domination of politically powerless groups whom an ill-informed public might be unwilling to save. In Wu’s words:

Some Arab-Americans and Muslim-Americans, like anyone else, might be more eager to cooperate with patriotic efforts if they did not have the sense that war was being waged on a racial or religious ground. Even the suggestion that people should tolerate modest impositions is galling, because it is only some persons, already marginalized, who are imposed upon. What looks like a light touch to observers can feel like an awfully heavy hand to those who feel it.

Lawyers, Wu later implies, can choose to resist the marginalization of Arab-Americans by challenging racial profiling via arguments that endorse a social cost, rather than an alternative and less liberating understanding of the internment and the internment cases.

Ellen Podgor is also concerned about the unchecked expansion of governmental power in our fight against terrorism. Podgor focuses not on the impact on marginalized groups, but the perhaps unintended impact on members of a wide range of groups in one area: computer crimes. Podgor explains that the Patriot Act provisions concerning these crimes are broadly phrased, likely extending beyond cyber-terrorism to include allegations of "fraud, identify theft, and other activities that are common forms of computer crimes." Changes are both procedural and substantive. Procedural changes include provisions expanding when service providers can give information to law enforcement, adding felonies related to computer fraud to the list of predicates for receiving wiretap authority, and permitting intercepting under certain circumstances communications to and from a computer trespasser. The Act also expands the list of situations in which the Secret Service may participate in the investigation of computer crimes and authorizes the U.S. attorney general to establish regional computer forensic laboratories to train federal, state, and local law enforcement in investigating computer crimes. Substantively, the Act expands the scope of key money laundering statutes; includes computer fraud and abuse as part of the grounds for charges of terrorism; and modifies the computer fraud statute, including permitting extraterritorial jurisdiction, redefining "damage" and "loss," and increasing penalties for those who cause damage to protected computers. Podgor expresses the view that with changing technology, even more expansive legislation is on its way. Podgor does not expressly address whether, over time, the political or judicial process will address any excesses. But she does wonder whether, given the haste with which the Patriot Act was passed, it was wise to include provisions that are so far-reaching yet are applicable well beyond terrorism. If such action was indeed unwise, much pain might be caused before the political system or judicial interpretation fixes the process.

Given the recurrent theme in many of these essays of the importance of the lawyer’s role in protecting individual liberties, it should come as no surprise that Paul Rice, in his piece, considers the attorney general’s order permitting the monitoring of certain attorney-client communications involving inmates as aimed at the heart of adversarial justice: "In substantial measure, the fairness of an adversarial criminal justice system, be it military or civilian, depends on the attorney-client privilege." The privilege is meant to promote the free flow of information to enable the attorney most effectively to represent the client. More than this, however, argues Rice, the privilege promotes both the reality and perception of fairness. American history has made the privilege a cornerstone of American justice so that the people see the privilege as among those things that lend legitimacy to the entire justice system. "An adjudicatory system without the respect of the people," says Rice, cannot succeed.

Rice lists numerous ways in which he believes that the attorney general’s order falls short of meriting the people’s respect. For example, the monitoring is to be done by a "privilege team," who will have no contact with law enforcement involved in the case. That team cannot disclose any conversations it overhears, absent either a court order by a federal judge or a determination by the privilege team leader that acts of violence or terrorism are imminent. But the order does not identify who will serve on the team, the term "federal judge" includes judges on the prospective military tribunals for suspected terrorists, and privilege team leaders may have substantial discretion to determine when terrorist acts are imminent. Moreover, one major justification for monitoring is that the attorneys will unwittingly be used by their clients to communicate messages to terrorist cells or teams to act. Rice sees this fear as rooted in an unfair distrust of attorney character and competence: "[W]hy should we assume that court-appointed attorneys would either be willing to assist suspected terrorists or be capable of being fooled into serving criminal purposes?" Moreover, outside checks on the prosecutor’s power are unlikely to work: "The central concern remains that, under the text of the order, the executive branch of government is defining its own needs, striking its own balance, and sitting in judgment of its own actions." Relatedly, Rice argues that there are important reasons for courts to suppress much of the seized evidence: "[S]uppression would serve as a check against the executive branch attempting to overuse national security powers. If the government knows that no evidence obtained under the order may be used in the prosecution of any defendant, then the government will only monitor inmates under the order when it truly believes such monitoring may result in leads that may prevent future terrorists’ acts." To do otherwise, argues Rice, permits untrammeled executive branch tyranny with no countervailing political forces, substituting vengeance for true adversarial justice.

Finally, John Elwood, counselor to Assistant Attorney General Michael Chertoff at the Justice Department’s Criminal Division and a significant draftsperson for the criminal provisions of the administration’s antiterrorism proposals that became the Patriot Act, rejects the assumption of most of the authors in this symposium that there has been an unwarranted expansion of executive power without adequate political safeguards against abuses. To the contrary, says Elwood, the administration has thought "outside the box . . . [but not] outside the Constitution."

For example, notes Elwood, the order concerning the monitoring of attorney-client communications affects only a tiny minority of inmates, requires notification to the client and his or her attorney absent a prior court order, and requires a court order to permit after-the-fact disclosure of monitored communications to any entity. Elwood rejects the criticism that the monitoring is less likely to uncover investigative leads than would a clandestine court-approved wiretap. "The purpose of the amendment is not to develop leads on attacks that have already occurred, but to prevent attacks from happening in the first place." Moreover, clients will continue to offer full information to attorneys because clients will understand the value of these safeguards in protecting legitimately privileged attorney-client exchanges.

Similarly, detention of persons as part of the terrorism investigation has affected, contrary to popular belief, only a small number of persons. In criminal cases and for material witnesses, detention has been done only pursuant to an order by a neutral magistrate, and, even then, for no longer a period than is necessary and with full protection for the detainee’s right to the assistance of counsel. Furthermore, detainees and their attorneys remain free to speak to the press and to describe what happened.

Likewise, military tribunals serve important goals, including safeguarding classified information and better dealing with the security issues surrounding the trials of suspected terrorists. The tribunals again provide for counsel’s assistance and provide for numerous other due process protections, such as the rights to cross-examination, presenting witnesses on their own behalf, pretrial discovery, and appeals to a three-member review panel that includes civilians serving as temporary military officers. The tribunals are presumptively open, and the White House intends to keep the trials "as open as possible, consistent with the needs of national security."

Elwood’s bottom-line conclusion, therefore, is that judicial and citizen oversight of all antiterrorism efforts remains strong and has gone only so far as security needs demand. Whether readers of this symposium agree with Elwood or with the administration’s critics, all authors to this symposium agree that ensuring such oversight and the qualified legal assistance necessary to making that oversight effective are goals of which we must never lose sight.

Andrew E. Taslitz is a professor of law at the Howard University School of Law in Washington, D.C. He is also the vice-chair of the Criminal Justice magazine editorial board and a former member of the National Research Council’s Committee on Marking, Rendering Inert, and Licensing of Explosives and Their Precursors. In addition, he has written several law review articles on terrorism and is the special editor of this symposium issue. NOTE: The topic of this symposium—terrorism and criminal justice—is one of ongoing interest to practitioners of criminal law and will be further addressed


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