Civil Liberties Issues

Due Process

Since September 11, 2001, the federal government has taken steps to greatly diminish the due process rights of terrorism-related suspects and witnesses.

Military Commissions

The Bush administration authorized the use of military commissions to try non-citizen "enemy combatants." While courts have consistently held that "the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent," the Bush Administration’s policy unjustly singles out non-citizens. Military commissions have significantly different procedures than standard judicial proceedings. For instance, military tribunals prohibit the right of appeal to a civilian court and use appointed military counsel for the defendant. They also do not follow judicial rules of evidence; thus, hearsay evidence, evidence obtained by torture, and evidence collected in violation of the Fourth Amendment search and seizure protections may be admitted, and evidence against a defendant may be withheld from a defendant and his or her lawyer.

In May 2009, President Obama announced he would reinstate these military commissions, with somewhat expanded detainee rights, to try detainees still held at Guantánamo Bay detention center. See BORDC's statement on the revival of military commissions.

Material Support

Additionally, nearly all of the DOJ's prosecutions under the USA PATRIOT Act have relied on Section 805: "Material Support for Terrorism." The DOJ has been using this controversial section to charge people without having to show they knowingly contributed to terrorist acts or plans for such acts. Parts of Section 805 have been held to violate the Due Process Clause of the 5th Amendment. In January of 2004, a federal judge in the Central District of California ruled that a ban on providing "expert advice and assistance" to terrorist groups violates the First and Fifth Amendments to the Constitution because it is so vague that it "could be construed to include unequivocally pure speech and advocacy protected by the First Amendment." In a related case, the U.S. Court of Appeals for the Ninth Circuit ruled in December 2003 that two other prohibitions contained in that law, prohibitions on providing "training" and "personnel" to designated terrorist groups, were unconstitutionally vague. These cases enjoined the DOJ from using these parts of Section 805 against the plaintiff human rights organizations. For more information on the Material Support provision, read Georgetown law professor and volunteer Center for Constitutional Rights attorney, David Cole’s testimony before the Senate’s Judiciary Committee.

Material Witness Statute

Another controversial law that the government has increasingly been using in terrorism-related investigation is the material witness statute, 18 U.S.C. 3144. The DOJ has used this law to detain individuals whose testimony is "material" to a criminal proceeding and who are likely to flee. The DOJ has refused to say how many individuals the agency is holding under the statute for terrorism-related investigations, which has lead some to question whether the law is being abused. Many argue that the government is using the material witness statute as a means to detain suspects when they do not have evidence to criminally charge them. The statute does not set a maximum time for detention of the witness.