Civil libertarians bemoan legal impotence

BY LEE ROWLAND

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Three prominent civil libertarians visited Harvard Law School on Tuesday to plug a new book titled, The War on Our Freedoms, a collection of essays by leading scholars about current threats to civil liberties. The three panelists spoke on the legal status of terrorist detainees, the extreme difficulty of being a civil liberties lawyer in the current climate and the effect of the Patriot Act on biochemical research. All three spoke with a mixture of legally-confident outrage, and, unfortunately, wistful defeatism that the American public has yet to become outraged itself.

Two-L Mushtaq Gunga introduced the panel: Pulitzer prize-winning New York Times journalist Anthony Lewis, renowned litigator and ACLU assistant legal director Ann Beeson and author/journalist Patricia Thomas, formerly the editor of the Harvard Health Letter. The three scholars were jovial and engaging speakers, and spoke about both their contributions to the book and their journalistic and legal experiences.

Anthony Lewis spoke first, focusing on the plight of detainees held by the United States in Guantanamo Bay, Cuba. Lewis used as an example the case of Jose Padilla, who he says now endures a “conviction by government pronouncement.” Padilla’s court-appointed lawyer, Donna Newman, received a call from the Justice Department one day before his scheduled arraignment informing her not to bother coming in: Padilla had been transferred to a detention cell in South Carolina.

Donna Newman began a spate of legal challenges to his detention, becoming in the process, Lewis told his audience, “a model for all of you as future lawyers.” She filed a habeas corpus petition, and began challenges in the second circuit to his detention without trial or access to counsel. Her efforts, however, led to a formalization of the government’s policy. When a circuit judge ruled that Padilla had a right to limited access to counsel – only for him to answer the charges – the government objected that any access whatsoever would spoil its goal of “creating an atmosphere of dependence and trust upon his interrogators,” and the appeals court stopped Newman in her tracks. As such, Padilla’s 17-month detention has been left unmonitored by the outside world, and condoned by the courts.

Like others in Guantanamo Bay, Padilla’s status has yet to be determined. Although the Third Geneva Convention, to which the United States is a signatory, requires that the status of detainees be determined by a competent tribunal, the American government has taken no steps in the past two years to make any such determinations. Lewis summed up his talk by stressing the danger of the government’s claimed “right to unilaterally – and I stress the word unilaterally – determine the status of someone it wishes to detain.”

Litigator Ann Beeson began with an anecdote about a recent event in Fresno, California. Many municipalities have recently begun passing statutes opposing the PATRIOT Act, and taking whatever steps legally possible to minimize its impact in their communities. The committee formed to draft such a resolution in Fresno recently got a shock when one of its members died in a car accident and his obituary listed his occupation: FBI agent with a counter-terrorism unit. Thus, Beeson said with a smile, not knowing if there was “a similar plant in the HLS audience,” she would not be divulging any strategy secrets from the ACLU’s current legal challenges. The crowd laughed uncomfortably.

Beeson spoke from the viewpoint of a civil liberties lawyer, detailing the procedural methods that most courts have recently used to avoid ruling on substantive civil liberties issues, largely stemming from the PATRIOT Act. Echoing Lewis, she noted that challenges to Guantanamo Bay detention have been sidestepped procedurally because the detainees are not on U.S. soil – a ruling that may have haunting ramifications.

Beeson also told a story about the upgraded wiretap powers under the PATRIOT Act. Since the passage of the Foreign Intelligence Surveillance Act (FISA) in the 1970s, the special FISA court has permitted 15,000 of 15,000 requests, all unpublished rulings. Yet, in August of last year, the government sought to have the FISA court confirm the new Act’s constitutionality. Not only did the court refuse to do so, but for the first time ever the court published its ruling finding the new wiretap regulations unconstitutional.

Naturally, the government appealed. And an appeals court that had never sat before agreed to hear the challenge. The ACLU, excited by the challenge, sought to submit an amicus brief (one has to ask: amicus to whom?), which Beeson noted was “almost hilarious, because we literally couldn’t find the court to file it in.” Although the ACLU was able to track down the individual judges and get permission, the appellate panel met in secret without notifying them or the public, and struck down the FISA court’s original ruling. “Because the government was the only party, there was no one to appeal,” so Beeson filed a Motion to Intervene with the Supreme Court, which was denied. Beeson related these procedural nightmares with an incredulity sustained through two years of these obstacles, but acknowledged that a career in civil liberties is getting harder and harder to sell to law students, due to consistent legal frustration from all sides.

The final panelist, Patricia Thomas, added diversity by speaking about the effect of the PATRIOT Act’s new restrictions on biochemical research and upon individuals involved in the sciences. She claimed that scientists are being marginalized by an administration that “chooses ideology over expert opinion.” The PATRIOT Act vastly expanded restrictions on biological ‘select agents’ and their researchers. Thomas mentioned two scientists lambasted by the government and press – Steven Hatville and Wen Ho Lee – whose lives and careers were ruined by government investigations. The lack of knowledge about which research and what scientists will be targeted has led the National Academy of Sciences to recently suggest that researchers “simply stop asking certain questions.”

Importantly, the PATRIOT Act also greatly restricts international researchers’ access to U.S. facilities, in spite of the fact that American universities cannot now fill Ph.D. quotas with American students. Thomas continued that “visa denials will imperil the future of U.S. science,” as well as squander the diplomatic power gained through “educating professionals for the rest of the world.” Her main point was that the harsh and unpredictable treatment of scientists – particularly minorities – will deter crucial infectious disease research in a time when it is most crucial.

The questions of both moderator Mushtaq Ganga and the audience struck a familiar, frustrated refrain. Two-L Jesse Tampio asked for the “best strategy for communicating to the general public that the PATRIOT Act could concern them.” Ms. Beeson replied that the ACLU debates that question “every week in trying to figure out what the hell we’re going to do.” Unfortunately, no one seemed to have a more satisfying answer. Beeson did note, however, that affinity groups drawing parallels to past experiences were starting to come around (for example, the NAACP, which was bullied into divulging membership lists in the 1960s, is helping to challenge the PATRIOT section 215 provisions authorizing the seizure of membership lists).

Comments from 1L Elizabeth Arora, leaving the panel, echoed this same weariness. Arora loved the panel, and heard “nothing surprising, but it’s always nice to have a pep rally for the seventeen of us who think civil liberties matter.”

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