Category Archives: Civil Liberties

The Christian Science Monitor reports that the Supreme Court will soon consider whether to review a lower court procedure that allowed the government to conduct a secret habeas corpus proceeding. Not only was the trial closed to the public, but all information about it was kept off the public record. Officially, it was a non-event.

A secret trial. A SECRET TRIAL. In the US. IN THE USA. Ok. Ok. I refuse to panic until the Supreme Court approves this. That means I have a few weeks at least.

If you had asked me two years ago, I would have said that secret trials were impossible in the USA. While there are special procedures for judges to consider especially sensitive evidence in camera these have historically been designed as a way of deciding whether the evidence belongs in open court; if the judges decide the evidence is important, the government must either make it public, or forgo using it — which, if the evidence is exculpatory, means forgoing the prosecution.

The idea that the government would attempt to hold entire secret star chamber-like trials, closed to the public, trials whose very existence was a secret, is repugnant to this nations's traditions and fundamental values. And if history teaches us anything about abuses of power, it is that secret trials are dangerous. This is never more true than in a habeas corpus action, the 'Great Writ' (the “highest safeguard of liberty,” Smith v. Bennett, 365 U.S. 708, 712 (1961)) which is designed to force the government to justify its detention of a person.

The government's — successful! — attempt to inaugurate a regime of secret trials and secret detentions is a really lousy signal about the state of panic among our ruling class — and about the brittle state of our liberties. What really boggles the mind is that two courts have allowed this to happen — now only the Supreme Court stands between us and a country with secret trials into which suspects (recall – they're innocent until proven guilty!) just vanish into the system.

Before you say 'terrorism is different' or 'we're at war now', note that the government says they want to use this tactic in drug cases too. Worry. Really worry about this one. We're one step closer to the day when this might not be a joke.

And in fact, the subject of this secret trial isn't some super-ninja terrorist from beyond the deep. He's an Algerian waiter. And he is obviously not that dangerous, since he's been out on a $10,000 bond since March 2002.

Secret 9/11 case before high court| By Warren Richey | Staff writer of The Christian Science Monitor

MIAMI – It's the case that doesn't exist. Even though two different federal courts have conducted hearings and issued rulings, there has been no public record of any action. No documents are available. No files. No lawyer is allowed to speak about it. Period.

Yet this seemingly phantom case does exist – and is now headed to the US Supreme Court in what could produce a significant test of a question as old as the Star Chamber, abolished in 17th-century England: How far should a policy of total secrecy extend into a system of justice?

…

Yet this highly unusual petition to the high court arising from a Miami case brings into sharp focus the tension between America's long tradition of open courts and the need for security in times of national peril. At issue is whether certain cases may be conducted entirely behind closed doors under a secret arrangement among prosecutors, judges, and docket clerks.

While secret trial tactics have reportedly been used by federal prosecutors to shield cooperating drug dealers, it's unclear whether the high court has ever directly confronted the issue. But that may change if they take up MKB v. Warden (No. 03-6747).

Continue reading →

The US Government's Office of Foreign Assets Control has told the IEEE, publishers of engineering journals that it cannot edit contributions from persons in Cuba, Iran, Libya, or Sudan. This is very hard to understand as anything but a First Amendment violation. Unfortunately, I can't find the primary sources online, and the secondary sources are not as clear as I'd like.

IEEE Web Only News:

On 30 September, the U.S. Treasury Department (Washington, D.C.) informed the Institute of Electrical and Electronics Engineers (IEEE) that it must continue to limit members’ rights in four countries embargoed by the United States: Cuba, Iran, Libya, and Sudan. The ruling means, among other things, that the IEEE, the world’s largest engineering association (and the publisher of this magazine), cannot edit articles submitted by authors in those countries, making it effectively impossible for most such work to appear in IEEE publications.

If IEEE wishes to edit and publish the work, the Treasury Department informed IEEE, it will need to apply for a special license. That ruling could in turn have far-reaching consequences for hundreds of other U.S.-based scholarly publishers and professional organizations.

In the meantime, however, IEEE members in the four affected countries are prohibited from being elevated to a higher-grade membership; using IEEE e-mail alias and Web accounts; accessing online job listings; and conducting conferences under the IEEE name [see “Services in Dispute,” p. 15]. They still receive printed journals and other publications. In January 2002, when the IEEE first imposed its restrictions, it had over 1700 members in the embargoed countries, nearly all of them in Iran; only about 200 are still members. IEEE has about 380 000 members worldwide.

…

We’ve been working with OFAC to better understand what services we can still provide,” Adler says. “But [OFAC] drew the line very explicitly on editing.” In his letter to IEEE, OFAC director R. Richard Newcomb stated that “U.S. persons may not provide the Iranian author substantive or artistic alterations or enhancement of the manuscript, and IEEE may not facilitate the provision of such alterations or enhancements.” Such enhancements include “reordering of paragraphs or sentences, correction of syntax or grammar, and replacement of inappropriate words.”

Foreign asset controls are designed in part to stop money and services from going to 'bad' regimes. The statutes and regulations I am familar with all contain exemptions for “publications”. From what I can see, the government argues that editing is some sort of prohibited service (or technology export? If so that would open a nice can of worms — a perfect topic for a student's law review note…). Whatever they may call it, I have a lot of trouble imagining a regime that requires journals to get a license to allow them to edit foreigners' submissions as anything other than a classic prior restraint on speech.

Continue reading →

The Practical Nomad blog: USA visitor fingerprint and photo database to include travel data

Bad news for many international visitors to the USA: Most visitors to the USA, arriving at airports or seaports, who require visas

… — apparently including all transit passengers changing planes in the USA en route between other countries — will have digital photographs and fingerprint scans enterred into their “travel record” in a new database, the “Arrival/Departure Information System (ADIS)”.

It's still not clear whether any of the data the DHS is now obtaining from international airlines (in violation of European Union and other countries' laws) will be included with fingerprints and photos in the ADIS database of travel records —

Continue reading →

Neil Lewis of the New York Times writes an update on what's doing at Guantánamo, U.S. Erecting a Solid Prison at Guantánamo for Long Term. In the course of a perfectly solid piece of reporting, Mr. Lewis falls into the tense of Historical Inevitability,

The camp currently houses about 660 detainees in varying degrees of security. The new prison could be where prisoners sentenced by military tribunals would serve their terms. Although the rules for tribunals include the possibility of capital punishment, Colonel Hart said there were no plans to build an execution chamber. [Funny – the BBC reported that there were “plans” last June — in the sense of contingency plans, not in the sense of a firm decision.]

None of the detainees sentenced to prison terms or execution could be taken into the United States to serve their sentences because upon arrival, they would immediately gain new rights and avenues to challenge their detentions. Officials chose Guantánamo as a location where United States constitutional protections would not apply, and two federal courts have agreed that the naval base here is not legally part of the United States.

Got that? “None of the detainees sentenced to prison terms or execution could be taken into the United States to serve their sentences….” It's inevitable! It's a law of nature! What he means, of course, is 'Administration officials are afraid to bring any detainees to the US, even those convicted in the special military courts that the American Bar Association has condemned as too one-sided, because the Adminstration rightly fears the application of the Due Process clause of the Constitution.'

In fact there is nothing inevitable about Guantánamo. It's time to demand that the detainees be patriated—bring them to the US. Show the world we are not afraid of due process.

Please see my earlier item on Guantánamo

Court Takes Police Identification Case The Supreme Court will hear arguments in Hiibel v. Sixth Judicial District Court of the state of Nevada, 03-5554, this term. The case—which is nominally about whether a state can require you to identify yourself to the police—could have important implications for the right to be anonymous, laws governing any national ID cards, and a host of other interesting things.

It seems to me that at least in some special cases, admitting to one's name could be a form of constitutionally prohibited self-incrimination. And even when it isn't, it's an intrusion on one's privacy. Choosing not to give one's name to the police ought never to be grounds for arrest on its own. And I'm having trouble coming up with a scenario when it ought to be one reason among a totality of circumstances, either. (Obviously, giving a name will sometimes rebut a suspicion that would suffice for an arrest, e.g. demonstrating one is an authorized person not a trespasser in a government building. But that's different — I am trying, and failing, to come up with a hypothetical case where it's proper to consider the failure to give a name as sufficiently suspicious in itself to permit arrest where it otherwise would not be permitted.)

The Nevada case raises this issue directly, since the law in question makes it an offense to refuse to identify yourself to police when suspected of an offense.