Winter 2003

Section Proposes Policies on Intelligence Surveillance Oversight and Rights of Enemy Combatants

At the ABA 2003 Midyear Meeting in Seattle, Wash., the ABA House of Delegates will a consider a Section-sponsored resolution urging Congress to conduct regular oversight of government surveillance activities undertaken pursuant to the Foreign Intelligence Surveillance Act (FISA) to help ensure that such surveillance is carried out consistent with constitutional safeguards. In addition, the Section is co-sponsoring a proposal of the ABA Task Force on Treatment of Enemy Combatants calling for legal representation of individuals designated as "enemy combatants" under the government's new anti-terrorism procedures.

The first proposed resolution also calls for clarification of procedures to ensure that FISA is used only for legitimate "foreign intelligence-gathering purposes and not to circumvent Fourth Amendment requirements applicable to domestic law enforcement investigations," and calls for "an annual statistical report regarding the use of FISA authorities," to be made available to the public.

In 1978, the Congress enacted FISA in response to concerns about governmental abuse of its foreign intelligence-gathering powers and the need to protect individuals from improper government intrusions upon their privacy. Following the terrorist attacks of September 11, 2001, Congress enacted the USA Patriot Act which significantly altered FISA's purpose, making the requirement for foreign intelligence gathering a much easier process to have approved by the Foreign Intelligence Surveillance Court (FISC), created under the original FISA statute.

In March 2002, the U. S. Department of Justice proposed new procedures that would have eased further restrictions on law enforcement officials conducting FISA searches and surveillances. In May 2002, the FISC rejected the new proposals, marking the first time the Court had ruled against the government. However, in November 2002, the Foreign Intelligence Surveillance Court of Review, ruling on a FISA appeal for the first time, upheld the DOJ's proposed new powers.

While fully cognizant of the national security imperative posed by the terrorist attacks, the resolution addresses the dangers to fundamental constitutional rights posed by the loosened surveillance standards and their potential misuse.

The FISA proposal originated with the Section's Privacy and Information Protection and First Amendment Committees, particularly Privacy Co-chair Marc S. Rotenberg and First Amendment Committee Vice Chair Mikal Condon.

The second proposed resolution, involving persons lawfully present in the United States who are designated as "enemy combatants," urges that individuals detained under this designation be afforded the opportunity for meaningful judicial review of their status; that they not be denied access to counsel; that Congress work with the Executive Branch to establish standards and procedures governing their designation and treatment; and that Congress and the Executive Branch consider how the policy adopted by the United States may affect the response of other nations to future acts of terrorism.

The report accompanying the resolution highlights the cases of two U. S. citizens, Yaser Hamdi and Jose Padilla, who have been designated "enemy combatants" and detained incommunicado without access to counsel or meaningful judicial review. Under current procedures, they can be detained indefinitely without charges or counsel.

"We recognize the government's responsibility to do everything possible to prevent another attack on our nation, but we worry that the methods employed in the Hamdi and Padilla cases risk the use of excessive government power and threaten the checks and balances necessary in our federal system," the report states.

The impetus for the resolution began in March 2002, when then-ABA President Robert Hirshon created a Task Force on Treatment of Enemy Combatants, chaired by IRR Council Member Neal R. Sonnett, to examine issues concerning treatment of persons lawfully present in the United States suspected of terrorist activity while ensuring that safeguards exist to protect the innocent and prevent possible abuses of power. Following the release of its Preliminary Report in August 2002, the Task Force developed the policy proposed to address concerns identified in the report. The IRR Section and the Criminal Justice Section (CJS), which have separate task forces on related issues, assisted with the policy development. Participants included IRR Section members John Payton, Michael Greenberger, John Podesta, and Jeffrey Robinson, and CJS members Margaret Love, Kenneth Bass, Frank Bowman, R. J. Cinquegrana, and Marc Jones.

The lead drafter of the proposal was IRR Council Member Neal R. Sonnett.

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