- Landmark laws from a century ago grant the executive extensive freedom from legal oversight in key security areas
- Normal civil liberties can be compromised
- The courts can assert their right to intervene and protect citizens and non-citizens
Responding to a perceived terrorist threat can conflict with established civil liberties, said a recently published report by James Lutz and Georgia Ulmschneider, political science academics at Perdue University Fort Wayne, and sometimes courts and the legal system, usually firm defenders of individual liberties and rights, are caught up in this process.
The challenge is not new. They quote examples going back to the Immigration Act of 1903 (often known as the ‘Anarchist Exclusion Act’). This largely gave Congress and immigration officials a free hand to determine who could be denied admittance into the country. The courts deferred to the various branches of government involved.
At various times in the 20th century – during the “Red Scare” after World War I and at other times –the executive often made full use of such powers. Individuals affected by it had fewer safeguards than normal. Often there were lower standards of evidence, such as allowing hearsay evidence. Access to legal counsel could be limited or blocked. The courts ruled that as deportation was not punishment, persons facing deportation hearings did not have the same due process rights that they would in a criminal trial.
Many of these issues have come to the fore again in the post 9/11 period, especially with passage of the USA Patriot Act and later travel bans created by President Trump.
While there is an inevitable tension between the need to protect society through restricting the activities of certain kinds of individuals and organizations and the need to maintain normal civil liberties, the writers note, there is a special situation in the current legal system. In the famous Supreme Court ruling United States v. Curtiss-Wright 1936, the concept was implanted in constitutional law that the presidency is the “sole organ” for conducting foreign policy, and ever since then courts have tended to defer to presidential authority. This has, in the view of this report, limited their willingness to protect civil liberties when foreign affairs are involved.
This has become even more the case when national security issues are caught up with immigration questions. “The court decisions and practices have accepted a toxic mix composed of deference to the other branches in foreign policy and national security decisions, plenary power in the area of immigration control, and lack of opportunities for judicial oversight due to limited information on foreign policy issues,” Lutz and Ulmschneider write.
“The lack of judicial protection has perhaps been most obvious in regard to immigrants and foreign residents in the United States, but it has affected citizens as well,” they added.
Even though Trump’s travel restrictions have encountered various legal difficulties, these did not challenge the principle of the executive’s right to act. The challenges were to do with the incomplete and poor preparation of the proposals, under the argument that some had prejudicial or discriminatory aspects. Once these were corrected, the bans were not challenged further.
Other initiatives have included increased powers of surveillance, wiretapping and other communications-monitoring warrants. The secretary of State has the authority to designate an organization as a Foreign Terrorist Organization (FTO), which has the effect of criminalizing virtually all contact with the entity. The courts thus become complicit in restricting freedom of speech and association.
The authors draw attention to a number of reasons why this may be of concern. Sometimes, decisions to proscribe or not an organization can seem to be politically influenced, as the report observes: “Governments create definitions or put violent groups on their respective prohibited lists that fit their own needs or respond to local political situations. They may avoid putting other groups on their official lists because because they do not threaten their interests or because there could be domestic or international complications should they do so.”
The IRA, even in the midst of a violent campaign in the UK, was never designated a terrorist organization and so remained able to fundraise and lobby within the United States.
Secondly, the erosion of civil liberties can play into the hands of terrorist groups, and sometimes such groups actively try to provoke overreaction, Lutz and Ulmschneider argue. This can create themes for future propaganda and the recruitment of further fighters for the cause. In particular, the report cites Spain in the mid-1980s, which used a clandestine, unofficial death squad to track down Basque nationalists. Although it was closed down when discovered and those responsible were jailed, it serves as an example of what can happen when judicial oversight is weakened or absent. Another example was the ‘Diplock’ courts set up by the UK government to try terrorist offenses in Northern Ireland during the period of the ‘Troubles.’ They had no jury and unsubstantiated reports from informers were accepted as evidence.
Another difficulty is that if an organization is proscribed, it can make it extremely difficult to initiate any kind of peace process and hold the negotiations that could lead to an eventual resolution of the violent conflict. There are examples from Northern Ireland to the Oslo Peace Accords (in spite of their later failure) where this has been crucial.
The report recommends that the courts allow themselves to have greater input into these crucial decisions. Otherwise, in their view, “the toxic blend will continue to negatively affect civil liberties for citizens and non-citizens and undermine U.S. counterterrorism efforts.”