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January 01, 2002


by Renee M. Jones and Kathi J. Pugh

We are grateful to Human Rights editorial board members, Renee M. Jones and Kathi J. Pugh, for their work on this special edition on justice issues in the aftermath of terrorism.

The events of September 11 have forever altered our nation’s self-image. We have been forced to acknowledge that the sense of safety and security that we have taken for granted was largely illusory. Neither our airports nor our national monuments can be made wholly secure from a committed enemy.

As we adjust to this new and stark reality, as Americans we also face a threat to the freedoms and liberties that we cherish as a nation. In the months ahead, we face the challenge of striking the proper balance between protecting our national security and protecting the very freedoms that inspire the patriotism so evident these days. We also struggle with the notion of exacting justice. How can we bring those who perpetrated these heinous acts to justice? What does justice mean in this scenario? And what is the proper venue for seeking justice: the battlefield, the U.S. courts, an international venue or, as the president has recently authorized, a military tribunal?

This special issue of Human Rights addresses these questions. Our authors write about the civil rights, civil liberties, and due process implications that have arisen in the wake of the recent terrorist attacks. Many of our authors present issues related to the application of the provisions of the USA Patriot Act and other anti-terrorism legislation and policies.

John Podesta focuses on the Patriot Act and argues that many of the expanded powers authorized by the new law are necessary to combat terrorism. Mr. Podesta argues that despite the need for the broader surveillance powers authorized by the Act, some aspects of the law unnecessarily infringe on civil liberties or lack protective mechanisms necessary to prevent abuse of power by the executive branch.

Kate Martin also examines intelligence issues. She argues that it is important to maintain separation of intelligence and law enforcement functions, and that such lines have been blurred in recent weeks and months.

James Dempsey argues that the purported trade-off between security and freedom is a false assumption. Although there is clearly a need for greater security, there has not yet been thoughtful analysis demonstrating that civil liberties were an impediment to the intelligence agencies’ failures to detect and prevent the September 11 hijackings. Mr. Dempsey also argues that the intelligence agencies already have more information than they can effectively synthesize and that granting them greater powers may further muddy the picture.

Professor David Cole explores the impact of anti-terrorism legislation on the most vulnerable among us: immigrants and Americans of foreign descent. Most insidious of the provisions, he argues is the concept of guilt by association embodied in the legislation. He also addresses due process concerns in conjunction with the INS’s expanded detention authority.

Elisa Massimino and Maryam Elahi warn of the danger in relying on the proposed military tribunals as a forum for seeking justice in the aftermath of the September 11 attacks. Ms. Massimino, in particular, argues that convictions under such tribunals will lack credibility in the Muslim world and run contrary to our country’s long-standing opposition to military tribunals in cases when our own citizens’ civil and human rights have been at stake. She offers suggestions for alternative forums for trying those suspected of involvement in terrorist activities.

Anthony Romero, executive director of the American Civil Liberties Union, expresses the ACLU’s concerns about the recently enacted anti-terrorism legislation. He warns of the unprecedented encroachments on civil liberties, due process, and basic freedoms authorized by the legislation. He also reviews some of the lessons of history that show that times of national crisis often lead to regrettable retrenchments in personal freedoms and liberties.

Professor Philip Heymann shifts the focus away from the USA Patriot Act and instead discusses the use of investigative powers already within the discretion of the executive branch. He thoughtfully considers the strategies that may be employed in the effort to prevent future terrorist events, and the impact of the various options on civil liberties of different groups within our country.

Roger Pilon examines the money laundering provisions of the recent anti-terrorism legislation. He argues that the expansive seizure powers authorized by the International Money Laundering Abatement and Anti-Terrorism Act are unnecessary and unjustified in the circumstances, and unlikely to aid in the fight against terrorism.

Finally, Frank Mankiewicz discusses the dissemination of information by the government during wartime and other times of crisis. He draws comparisons between the Bush administration’s current communication strategy and those used during World War II and Vietnam.

This collection of articles points out that our nation faces difficult challenges in protecting our safety and security by preventing terrorist attacks and punishing those responsible for such attacks, while preserving the freedoms and liberties that define our nation. We hope that these articles will inspire further debate and discussion and help us all think critically as our nation responds to these recent and devastating tragedies.