CHAPTER-IV
CHALLENGES TO CIVIL LIBERTIES
The enactment of USA PATRIOT Act, 2001 has been claimed to have
resulted in challenges to numerous essential civil liberties of the citizens and noncitizens. The Act has started a new "game rule" between the individuals and the state.
Pronouncing the new rules, the act should have placed both the conflicting parties on
equal footing; it should have treated and respected both individuals and the state on
the same parameter, but instead of, empowering.individuals, the act has empowered
the state. The history tells us that the Anglo-American people are known for their love
of liberty. For example, "although the English were in no sense a democratic people,
they prided themselves on being a free people and on the security given to private
citizens through trial by jury and the independence of judiciary" (Parkes 2005 : 11).
In this respect, Larry Gostin says, " Anglo-American society has a strong
individualistic concept of civil liberties, influenced by the philosophy of John Locke
and J.S. Mill. Under this libertarian view, rights belong to individuals , not groups.
Our most cherished rights to liberty, free expression, and the practice of religion and
conscience were essentially conceived as applicable to individuals." (Gostin 1988 :
7). So, it has clearly given importance to individual liberty, even at the cost of
national security. Right from the signing of Magna Carta in 1215, the tradition has
been maintained that citizens had certain legal rights which the Crown could not
violate. So, " the Englishmen who settled the early American colonies brought with
them all these English traditions, limitation of executive power, a bicameral
legislature, trial by jury, protection of individual rights by the common law ... "
(Parkes 2005 : 11 ). But the Patriot Act seems to have done just the opposite of that.
Such a move of the US administration has not only cut the individual freedom into
minimum size but has been able to violate many essential civil liberties in a massive
scale. They can be summarized in the following heads.
Civil Liberty Explained:
Its important to understand the meaning of liberty before attempting
to
explain the concept of civil liberty. Liberty is derived from a Latin Word "Liber"
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which means free. In other words, liberty denotes freedom or "a state of being free."
(Hornby : 1987 : 486). The Human Rights Dictionary defines liberty as, "The quality
or state of being free; the power to do as one pleases; the positive enjoyment of
various social, political, or economic rights or privileges; freedom from arbitrary or
despotic control; and freedom to be subject to and follow the rule of law"(Cartwright
and Conde 2000 : 145). Thus, liberty connotes an absence of restraints or in other
words, it is freedom from all the restraints. It is said that the government is
empowered to protect the citizens from crime and unlawful elements. So, the
government should not engage itself in criminal activities towards its citizens. The
famous English Political Philosopher, Thomas Hobbes elaborated that liberty means
absence of all restraints. But G.D.H Cole explains that liberty is freedom of every
individual to express without external hindrance to his personality. In the words of
Basanquet, liberty is the absence of physical menace or coercion on the part of the
other persons. And Bums defined liberty as liberty to grow to one's natural height to
develop the one's abilities. In this respect H.J. Laski's view on liberty is more
important. Laski says that liberty means the power to expand the choice by the
individual in his own way of life without imposed prohibitions from without. As it has
been said, "Free men and women have the right to not to do what they should, so they
may not be forced by others to comply with their moral responsibilities other than to
respect everyone's rights."(Machan 2006: 14). John Rawls in this regard says, when
fairness is done justice is well delivered. Liberty, thus, is the condition for making
one's all round development. Its, an act of freedom to exercise one's rights as human
being without any restrictions or limitations. As "a right designates a sphere of
freedom, a circumstance or environment in which one is authorized to act in a certain
way~"(Machan
2006 : 13). But, liberty as a condition of human progress is not
absolute, even though, the liberty-lovers (anarchists) put it high amongst all other
things. The "Anarchists are commonly regarded as extreme libertarians on the ground
that they seek freedom above all else." As while, "Godwin praises freedom as 'the
most valuable of all human possessions'. Proudhon acclaims it as his 'banner and
guide'. To Bakunin, who once described himself as 'a fanatic lover/of ,liberty' it is
'the absolute source and condition of all good.' And Kropotkin seeks a form of society
which 'will leave to the individual man complete and perfect freedom' .(Ritter 1980 :
9). However, it is subjected to certain conditions and reasonableness. As without
reasonableness, liberty becomes a license. When liberty is defmed as freedom from all
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the restraints, it not only becomes a licence. But also spoils the rational approach of
liberty. As what is liberty for one person may be restraint for another person. For
example, while, " the defenders of the Bush Administration say the President has
acted well within his authority as commander in chief-and in accordance with
Congressional Resolution (S.J. Res 23) calling for a forceful response to the Sept 11
attacks and future acts of terrorism." (Palmer and Bettelheirn 2001 : 2821). But to
others, " an assault of civil liberties. Others see a dynamic that has played out many
times since the nation's beginning without eroding the country's fundamental freedom
or altering the way its citizens view civil liberties." (Palmer and Bettelheim 2001 :
2821). However, civil Liberties are defined as " Civil Liberties are legal guarantees
established by the governed of a democratic society and are assurances that the basic
freedom
of the
individual
will
not
be
curtailed
or
reduced
by
the
government."(Cartwrite and Conde 2000 : 26). This means that when we are talking
about civil liberties we are talking about Basic Legal Protection of persons from State
Actions. It ensures us that the personal freedom can not be subjected to second
importance. As Lowi and Ginsberg defined it as "Protections of citizens from
improper government action"(Lowi and Ginsberg 2000 : 75). Tom Ridge, after
joining as the new Secretary of the Homeland Security said, "Liberty is the most
precious gift we offer our citizens"(Thompson 2002). But sometimes, civil liberties,
human rights and civil rights are confused· and interpreted as the same things which
are definitely mistakes. As while, civil liberties are political terms and referred to
legal protection of individual freedom against any actions of state. But civil rights are
non-political and legal terms. They are legal rights of citizens and also of noncitizens. "These rights are found in the Constitution's Bill of Rights and the so-called
Federal Civil Rights Acts. The purpose of civil rights is to ensure the respect of
persons in a civil society; they are granted by the sovereign(person state) through
legislation, such as the US Congress passing the Civil Rights Acts"(Cartwrite. and
Conde 2000: 27). On the other hand, human rights are inherent qualities of all human
beings by virtue of being human beings. They are bestowed on them by their creator
with birth which can not be taken away by any state and authority on the earth. They
are certainly not given and taken by the state and government actions and rules and
regulations.
However, It is always necessary to understand different aspects of liberty. For
example, (1) Negative Liberty and (2) Positive Liberty. Negative aspect of liberty is
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that when we call liberty a freedom from all the restraints. This is negative liberty. It
argues that the state should not impose any restraints on the action of individuals.
Because "the state is that it is limited, not absolute." (Wayper 1995 : 76). Such a
view of liberty was put forward by advocates of liberty in 17th and 18th centuries in
Europe. This is the liberal view of liberty which, believes in the tenet of
individualism. As Thomas Aquinas in this regard says, "a man is said to be just
because he respects the rights of others." (Machan 2006: 13).The merchant-industrial
class had to establish a Free Market society. They wanted to set up a policy of
individualist orientation in the state. The idea of 'Let Me Alone' or 'Lassez Faire' in
other wards is associated with negative aspect of liberty. It believed in the principle of.
non-intervention of the state in the personal and economic affairs of the individuals.
Noted thinker on the subject, Proudhon in this respect says, "Government was the
antithesis of Freedom." (Rose 1999: 69). Other thinkers like Adam Smith, Bentham
and Spencer were most prominent in this regard. It was the influence of negative
liberty which helped to establish capitalist society in the 19th century and became an
important reason of destruction of feudal state which was otherwise rigid and
conservative. So, social order got realized in the form of law of nature and no
interference in the law of nature was allowed. Such a belief of non-interference was
understood by the middle section of society for instance the trade class and
industrialists who later thought it fit to talk of a principle of non-interference of the
state in their business. Thus, starts the idea of free-market which encompasses both
social and economic features/. The state was viewed as a just a political forum and it
was made sure that the state should not interfere in the business of businessmen. The
right to propertywhich evolved a greatdeal during this time, became an indispensable
idea of individualism. It was this way of thinking which made the state as necessary
evil. This means that the state would be necessary for the protection of individuals
and individual rights and would be responsible for various social progress but it
would be evil if, it meddles into the affairs of individuals and if it breaks the idea of
"Laissez Faire" system of society.
Thinker who supported such an idea of society and the state is Adam Smith
who is considered to be the "father of economics" and the author of Wealth of
Nations (1776) believed that the goodness of human beings and the goodness of
nature all have derived from the bosom of nature. So, the state and government must
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conform to such law of nature. But he considered liberty as natural to the human
beings. He emphasized a 'natural liberty' to be indispensable for wealth of nature.
When men are allowed to enjoy their natural, liberty then, only they can produce
goods in a free environment and the state and government should not put a ban
against their free-thinking. He explains, every person is free so long as he does not
violate the natural liberty and government can not come to restrict him to pursue his
personal and self interest in a certain way. The government can not impose it on any
individuals and suppose it to be fit. The important functions of the government is to
(i) defend the nature against any foreign aggression (ii) to protect every citizens of the
state (iii) to do public works such as roads and sanitation and run public institutions
for the individuals. And besides these, the government is not supposed to do any
thing. Thus, he was a believer of freedom of individuals and said that the state and the
government should not interfere into the affairs of the individuals rather they should
confine themselves to public works, and maintenance. Only in an atmosphere of
freedom and no restriction not only self interest would be able to make profit for the
individual but it would also produce wealth of the nature. So, natural liberty of human
beings are as natural as water and air and they can not be restricted in any way by any
person or organizations such as state and the government.
But Jeremy Bentham, the great advocate of Victorian jurisprudence was a
noted thinker of Laissez Faire and utilitarianism, has portrayed liberty in a different
wave length. Benthamite philosophy believes in the idea. of greatest good of greatest
number. This means that a society has to be judged whether it is good or bad not from
the stand point of its doctrine of state and government but from the stand point of
various social and economic indicators of development. A society has to be judged on
the basis of utility it produces for the individuals. The absolute justice and absolute
state have no meaning unless they have produced something which has got utility for
the individuals. The "theory of felicific calculus" reveals that in a given society, when
the greatest numbers of people are happy then, the society is said to be a happy
society and it's the primary responsibility of the state to provide greatest good to the
greatest number. The idea of pain and pleasure is also based on that very principle. To
Bentham, the nature has placed mankind under the governance of two sovereign
masters such as pain and pleasure. It upheld that desire is the cause of happiness and
thus, produces pleasure, so men always desires for pleasure and averse to pain. A
society that is full of pleasure is happy as against a society which is with pain remain
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unhappy. The utilitarianism defines utility also in that term as human being always
desirous of pleasure and averse to pain. Therefore, a good government is to provide
necessary environment for the growth of socio-economic condition of society. It has
to count every individual as one person and give no special privileges to anyone. The
equality of treatment is to be followed and makes it sure that no one is discriminated
in any way. This means that government has no right to curtail the happiness of men
unless, its against the social welfare of all. So men born with liberty and liberty is the
basis of his happiness which can not be taken away by the state or the government.
The state and government are formed by the individuals for the happiness in the life
of individuals. Bentham believes that state is an instrument of providing happiness
and promote pleasure among the individuals. The most important function of the state
is to make law/legislation and the objective of legislation is to remove restrictions on
individual liberty.
Nevertheless, the advocacy of John Stuart Mill on liberty is hardly comparable
to any one. The English political philosopher is known for his argument on individual
freedom. He asserted that there is a difference between political freedom and
economic freedom. While, constitutional government is the way through which
political freedom is realized, economic freedom is realized through welfare state. He
argued that for individuals that freedom of thought and expression is indispensable for
man's living. Every society is based on the rational knowledge and such rational
knowledge is the test of its social welfare. The freedom of thought and expression is
not only personal right but a matter of human dignity in the society also. So without
freedom to opt between right and wrong, man loses his moral and rational capacity as
a human being. J.S. Mill was also very kin to discuss about freedom of conduct of
man. For this, he makes a distinction of actions of man in the society. ·The first one is
"self-regarding actions" and the other is "other-regarding actions". A self regarding
action is man's personal conduct which does not affect the community and
community welfare. But other-regarding action is that conduct which affects the
community. Mill is of the opinion that men's self-regarding action should not disrupt
the welfare of the community or else, he will be punished by the society. Man's
personal prejudices should not in any way obstruct the progress of the community.
There is a freedom of conduct for every individual but that conduct should not
adversely affect the interest of community. He was a believer of human emancipation
and human freedom but that freedom must be regulated in the interest of social
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welfare and general will. Such a thinking of Mill, makes him a supporter of positive
liberty as well. The primary function of the community and the state is to provide
social welfare even at the cost of a few person's privileges. For example, the
exorbitant rent earned by landlords is the fit case of taxation for the welfare of the
community. It's the responsibility of the state protect the interests of real authors of
riches (the working class) in the state. It has been argued that the so called rich person
would not have been in position to gather wealth if, the workers would not worked in
his factory relentlessly. The workers work so hard to produce the wealth for the
masters. Or a salesman would not have been in a position to sell his products if, he
would not have been given protected market place.
Another witness of liberty was T.H. Green who is in no way less as a thinker
on human freedom. Even though, he was basically an idealist thinker on rights and
liberty still, his sense of good will, encompasses both liberty and social morality. His
idea of moral freedom is that every human being acts according to his desire and
sweet will. This is so liberty enjoyed in passion. But when he acts according to reason
he realizes something positively and called his positive freedom and this positive
freedom is the basis of "good will". A person is known for his identity, his reasonable
action or positive freedom which subsists in the "good will". Liberty can only be
realized when a person has realized his 'good will'. Green doest not believe on this
that freedom can be "absence of restraint". Its rather in the presence of beauty and in
the absence of ugliness. When a positive freedom exercised a good will is well done.
Freedom thus, emanates form the moral character of man. But Green does not make
any difference between right and liberty. He asserted that rights and liberties are same
things but described and prescribed differently. The objective of both the right and
liberty are the same. So they do not conflict against one another. In the absence of a
well-framed social system, there can be no rights as well as liberties and so also there
can not be good will in that society. Society needs to be upon good will to recognize
various rights and liberties of individuals, the basis of which is morality rather than
law, he asserted. But regarding the state, Green thinks that state is an "instrument of
perfection". It's the basic duty of the state to clear the difficulties on the path of men's
realization of freedom. He says the state hinders the hindrances on the path of
individual freedom. This is the reason why he assigns negative functions to the state
and positive function to the community. In this regard, the view expressed by H.J.
Laski is different. He has opted for a markedly departure from the thinking of Green.
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Laski says that the state is not an instrument of class power or domination. And if, any
state does it in reality, then it is not a state to be called so. However, the view
expressed by social scientist R.M. Maciver is worth mentioning here as he was a
believer in the evolutionary theory of state which emerged from primitive structure to
the well-developed modem sovereign state. He thinks that the state is subservient to
the community and so it has no more power than just to regulate the rights and
liberties of individuals. The state neither can interfere into the affairs of various
associations nor it can declare them unconstitutional. The state is not supposed to
impose its will upon individuals on the. pretext of national interest. He visualize the
state to be a "service state" or compare the state with hundreds of other organizations. ·
It's the community which serves the individuals better than state. The interests of
individuals such as emotional, personal, moral, spiritual, material as well as
intellectual are better attended and well-served by the community. The individuals
first think of their own community than the state. Thus, Maciver was of the opinion
that the authority of state should be limited to the objective of its own and nothing
more than that.
Positive aspect of liberty is that enjoying one's freedom through the law.
Positive liberty is when we realize ours freedom, we take care and give chance to
others to realize their freedom. Positive aspect of liberty insists on freedom with
restrictions. Human being must enjoy freedom but within the frame works of law and
order of the state. In the common interest of the people, state is allowed to inference
in the affairs of the people. As Locke says, "where the law ends, tyranny begins."
(Rose 1999 : 76). This way of thinking clears that the enjoyment of private property
is not absolute liberty but they are restricted to welfare of all. Important thinkers like
J.S. Mill, H.J. Laski, Habhouse, T.H. Green and Isaiah Berlin etc. are known as
advocates of positive liberty. Thus, while, negative liberty argues for freedom from all
the restraints so that the state shall remain abstained from imposing restrictions on the
activities of individuals. But positive liberty subsists in freedom with restraints. In
positive liberty, individuals enjoy their personal rights but with reasonable
restrictions. When liberty is realized as freedom to do undesirable things or in other
words to do those things which go against the common interest of society is realized
with reasonable restrictions in the interest of society that becomes positive. This
means that positive liberty is regulated liberty. It is the some total of general will and
" that General Will is the real basis of State." (Rose 1999: 180). Nevertheless, in
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order to realize liberty appropriately it is important to have the following prerequisites
present in system. They are a democratic form of government, Fundamental Rights of
the individuals must be given emphasis, there should be a separation of powers,
Judiciary must be separated, rule of law and not the rule of man should be the basis of
justice, the press must be free from the clutches of ruling party and influential persons
and groups. The socio-economic aspects must be taken into condensation and a
standard system of human rights must be maintained. The existence of party system,
knowledge of political system and eternal vigilance of individuals on the activity of
the state are too important conditions of realizing liberty properly. Unlike the
prerequisites of liberty are indispensable to realize liberty properly, so are the
classification of liberty to understand it under proper situations. Liberties are
classified into civil liberty, political liberty and economic liberty. Of these civil liberty
is considered most important. Civil Liberty is freedom of individual person in his civil
capacity as a member of human society. It's a set of those basic liberties in the
absence of which men can never be at their best selves. As Malaysian philosopher,
Syed Md. Naquib al-Attas once said," Freedom is to act as one's real and true nature
demands and so only the exercise of that choice which is of what is good can properly
be called 'free choice'. A choice for the better is therefore an act of freedom ...
Whereas a choice for the worse is not a choice as it is grounded in ignorance ... it is
then also not an exercise in freedom because freedom means precisely being free of
domination by the powers of the soul that incites to evil." ( Allawi 2009 : 186). Thus,
when we are talking about civil liberty, we are taking about three important freedoms
such as: (1) The Physical Freedom, (2) The Mental Freedom, (3)
The
Contractual Freedom.
First, Physical Freedom comprises of two important freedoms such as (i)
Freedom from Injury to human body or threat to the life or health (ii) Freedom of
Movement. Its an all agreed and well-accepted worldwide fact that no physical injury
can be inflicted upon anybody except in the interest of law as a punishment for a
crime duly proved and in accordance with provisions prescribed by law. So any
physical injury on anybody without due process of law is considered to be
unconstitutional and against the established principle of justice. Such acts are against
valued human rights. Any unlawful injury to human body, a threat to one's life, a
threat to one's health etc all come under this category. This includes right to life, right
to liberty and pursuit of happiness. It also provides for right to keep fire arms for the
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self protection in the case of an attack on one's life and liberty. Protection with
respect to conviction for any offence is laid down in the constitution. The Second
Amendment deals with guarantee of the right of individual citizens to possess
firearms. The Third Amendment in the same way prohibits the government from
using private homes as quarters for soldiers during peace times without permission
from the owners. While, the Fifth Amendment prohibits for any double jeopardy, ie,
no person can be liable to trial for more than once for the same crime. A criminal can
not be compelled to testify against himself. This is what is called the rights of the
accused or also called as the Miranda Provisions. But Sixth Amendment protect the
citizens from delay in the trial of a case. This means that in the case of a criminal
offence, the trial will have to be conducted without any delay and be expedited. It also
guarantees the right to legal counsel for the accused. The Eight Amendment prohibits
any kind of excessive bail or fines. It also explained that the authority can not be
resorted to cruelty or any unusual punishment on the convicted. The law of the land
clearly states that no person can be given a punishment which is not prescribed by law
at the time of commitment of that crime, neither the punishment can be more than
what is prescribed by the law. This implies that no criminal law can be retrospective
in effect. As an act to become an offence, has to be an offence legally, other wise not.
In the same way, no person can be compelled to be a witness against himself. That is
to say, the authority can not compelled a person to agree or dis agree. As compulsion
in this regard is referred to physical injury, beating, hitting, terrorizing, unlawful
locking behind bar and make him to accept or reject certain thing. Self-Incrimination
is against established procedure of law. The Physical Freedom is regarded as the
most important freedom for human life and liberty in the absence of which no man
can be at his good. The right to clean air, right to clean drinking water, right to food,
right to shelter, right to education, right to information and right to live peaceably and
in dignity are several basic rights which are associated with life. There can not be any
doubt or question unless they are disputed with the law. No person can force
somebody to be a Beggar or Slave or a Prostitute. There is a right against exploitation
which prohibits any kind of trafficking in human beings such as bonded labour or
child labour or taking undue advantage of minors or disadvantaged persons.
But Freedom of Movement implies free mobility of person without any
restrictions. The right to move freely comes under personal liberty and a person can
live temporarily or permanently anywhere else, within the territorial limits of the state
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in which he is a citizen. Unless a restriction or prohibition is made legally against
such movement, he is free to move around the country. The right to movement not
only allows a person to move freely within the state of his origin but it also includes
right to buy a piece of land and right to build a home for his family. The right
comprises of the freedom to assemble peaceably and without arms, freedom to form
associations or union, Freedom to move freely throughout the territory of the state,
freedom to reside and settle in any part of territory of the state. The freedom of
movement can only be restricted in the interest of public safely, and law and order.
However, such a liberty is dishonored very often and for frivolous reasons. As a
person is rightfully free to move within the state of his own, he is also free to travel to
other countries and thus, such a right falls under his right to personal liberty. A citizen
can move freely in the state and also can go to abroad at his will. He is free to work in
abroad can come back to his native place at any time and has the basic right of settling
in abroad as well. Some countries are there which recognize certain rights of
immigrants and the US is one of them. The right to move to abroad for work and
come back to one's original state is acknowledged as a basic right through out the
world. However, there can be restrictions on the movement of persons on account of
war, penal law, parole, probation, registration or even epidemics as well. The Right
to Movement also comprises of the right to purchase land areas and right to make a
home. But certain states are there which are critical to such rights or deny them to
others. As such no person is allowed to purchase a piece of land in the state of J&K of
India, unless he is a permanent resident of that state( Art. 370, The Constitution of
India). While, in some states freedom of movement is
not allowed to place of
worship on the ground of racial difference, some other states do not allow certain
persons on the ground of colour of the skin and religion or even women are not
allowed by some states, especially the Muslim states to move freely. Nevertheless, the
.
right to freedom of movement has been a great is.sue of debate through out the world
as to who should be denied entry into which state at what time. But the right to
movement is not construed as an absolute right so far as the private property is
concerned. It has its limitations when it comes to private lands or premise of a person.
A person is not authorized to entered into the private premise of a another or else, it
will amount to be a violation of personal right. No person is encroached or trespass in
to the private home, landed property or prohibited areas, or state. An immigration
which has taken place without proper legal way is unlawful and thus, draws
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punishment. But the question arises not with private premises but with public places
such as roads, schools, colleges, offices, temples, parks, tanks, states, and other places
of public importance, where in others are not allowed. When persons are
discriminated on the grounds of their place of birth, descent, language, culture, creed,
colour, sex, caste and so on, the concept of right to movement freely is hampered. As
all are equal in the eyes of law and all needs equal protection of law, so everybody
has the right to move freely without any restrictions. In this respect example can be
cited as the United Nations through the Universal Declaration of Human Rights
under Art.13 declares that ( 1) Everyone has the right to freedom of movement and
residence within theborders of each state. (2) Everyone has the right to leave any
country, including his own and to return to his country. And the International
Covenant on Civil and Political Rights under Art.12 states that (1) Everyone lawfully
within the territory of a state shall within that territory, have the right to liberty of
movement and freedom to choose his residence. (2) Everyone shall be free to leave
any country including his own. (3) The above mentioned rights shall not be subject to
any restrictions except those which are provided by law are necessary to protect
national security public order, public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in the present covenant. (4)
No one shall be arbitrarily deprived of the right to enter his own country.
Appreciating and upholding
the right to movement as a basic right, the United
Nations Human Rights Committee, in its General Comment No.27, states that the
Liberty of Movement is indispensable condition for the free development of a person
and no restrictions can be put against the right to movement without proper reasons.
However, different countries follow different rules pertaining to right to movement
and restrict it owing to many and some times absurd reasons. In the case of the US,
the freedom of movement is considered as part of Fundamental Rights of the citizens
and they can not be restricted in any manner. 1 The US Constitution states clearly that
the privileges and immunities clauses of the constitution are to be enjoyed by the
citizens of each state without any limitations. Every citizen has the right to enter into
and leave from a state lawfully. The Supreme Court has also defined the freedom of
movement as "the right of free ingress into other states and egress from them." 2But at
the same time, there are no dearth of laws restricting the right to movement such as
2
Corfield v. Coryell, 6 Fed. Cas. 546 (1823).
Paul v. Virginia, 75 U.S. 168 (1869).
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the Mann Act of 1910, which is also known as the White-Slave Traffic Act, prohibits
freedom of movement of persons with loose character. It prohibits the transport of
females from one state to another for sexual purpose; the Trading with Enemy Act
also restricts citizens to move to other places like Cuba and spend money there. No
one can move to Cuba without a proper license issued by the authority. In recent time,
the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and
Aviation and Transportation Security Act of 2001 too contain some sort of restrictions
on free movement. While, in the former case the right to freedom of movement is
restricted on the ground of nonpayment of child support debts, in the latter case it was
made mandatory for all the passengers of a flight. to go through proper checking
before boarding the flight and a person who refuses to do so may be held back. His
right to movement can be suspended as per law. Thus, the right to travel is seen as a
basic right and constitutional provisions are there to protect it. But before 1978, there
was no need of a passport to travel to abroad and only those who were cheating or
suppressing about facts of their journey were put under criminal misconduct, other
wise there was no trouble. Thus, the right to travel is considered as a basic human
right on only in the US but through out the world and no restriction is made on it
without due process of law. No state can obstruct or prohibits its citizens the right to
travel, right to movement and right to build home in any part of the country. But when
laws are observed half-heartedly or with maliciousness towards a particular caste or
community, or funneled by racial discrimination or selfishness, then, the entire idea of
freedom of movement gets plugged. At the same time, a right to move freely can also
be a licence in the hands of an affluent person.
Secondly, Mental Freedom deals with freedom of mind. That is to say freedom
conscience, freedom of speech and expression, freedom of thought, intellectual
freedom and freedom of belief. "The framers put freedom of conscience first, and
then moved to freedom of speech and the press ... because they were concerned with
spiritual liberty-freedom to think, to believe, and to worship" (Cox 2000 : 1). Even
though, the right to speech and express freely are birth rights of human beings
bestowed on them by their creator and goes with them for life still, it has not been
recognized by the state and authority or restricted in its own convenience. In ancient
India, speaking and writing against the religion was met with dismemberment of
limbs or death. In England," A 1555 law made the penalty for speaking seditious and
slanderous words of the king and queen the loss of both ears or fine of 100 pound,
156
plus three months in prison"(Foerstel 1999 : 5). In this connection Federalist feeling
about freedom of speech and expression clear the fact that freedoms are always
restricted by the government for its own advantage for example, "James Madison
recognized that if the press were to assume responsibility for informing the people
about their government, it would frrst have to overcome the stifling effects of federal
power. Prominent among the government's weapons was the common law crime of
"seditious libel" which punished the press or individual citizens for criticizing the
government. Madison regarded laws against seditious speech as a threat, not just to a
free press, but to American democracy"(Foerstel 1999 : 4 ). As "Freedom of speech is
amongst our most cherished rights, yet it has always been a contested domain. 3 For
most of this century it has been the subject of countless judicial battles and has
sharply divided the Supreme Court."( Fiss 1996 : 1). And in the words of Larry
Gostin," Freedom of expression is a central civil liberties tenet, but it is not
absolute."(Gostin 1988 : 145). This is a universally accepted fact that men are best
judges for themselves and so they should be left free to decide about themselves.
They are bestowed with reasoning power by the nature and they can detect right from
wrong. They do not need any outside interference in their private affairs and lives.
Mental freedoms implies free expression of thought and belief and such expressions
can be in the forms of writing, speech, criticizing, or even silent, as "one man's
vulgarity is another man's lyric" 4 J.S. Mill argues, "The permanent interests of man as
a progressive being is depending upon or at least can be furthered by the advancement
ofknowledge, which best flourishes in an atmosphere of free-discussion. In order to
direct social policy wisely, it is necessary that there should be freedom to criticize
existing institutions and to put forward unpopular opinions, no matter how offensive,
they may be ( Mill 1992). Therefore, silencing a dissent or an opinion is equal to
silencing the process of justice. It is not only an evil deed but a sinister activity as
well. It has been widely accepted in the criminal justice system that dissenting from
the opinion is not a crime. As, if the opinion would be right then the dissenting person
·would lose the benefit of exchanging wrong for the right. But if, the opinion would be
wrong, then he would lose what is almost as great a benefit. In fact, the clearer
perception of truth can come about by the collision with truth. Before arriving at
conclusion, its very important to have seen opinions and counter opinions. So, when
4
Garrison vs Louisiana, 379 US 64 (1964).
Cohen vs. California, 403 US 15 (1971).
157
we are talking about mental freedom we are talking about freedom of speech, freedom
of expression, freedom to practice any profession or occupation, trade or business,
freedom of thought and freedom of belief etc. While, the freedom of speech is called
freedom to speak without any limitations or censorship, but freedom of expression
denotes verbal and written communications. It does not have a definite medium of
expression. Because of this universal nature, the freedom of speech and freedom of
expression are recognized as fundamental rights worldwide. "The late Justice Hugo
Black was particularly notable in defending freedom of speech from government
restriction on the basis of the First Amendment of the Constitution"(Rothbard 1973 :
105). "Justices Black and Douglas declared that ever to permit any prior restraint
upon the publication of any news would make a shambles of the First
Amendment"(Cox 2000 : 7). As such Art. 19 of the Universal Declaration of Human
Rights, Art. 19 of the International Covenant on Civil and Political Rights, Art.lO of
the European Convention on Human Rights,and Art. 13 of the American Convention
of Human rights mentioned them as essential human rights. However, Mental
Freedom is not considered as Absolute freedom. They are subjected to reasonable
restriction on the grounds of national security, public order and morality as well. Not
only in the US but in many countries upon such cases, the court of law may seek a
Judicial Review of the case in question to ascertain the very reasonableness of the
case. In many religious communities such as in Islam and countries such as Chinese
Republic the freedom of speech and expression are viewed differently. The right to
freedom of speech and freedom of expression are seriously restricted in the interest of
either religion or nation. In Russian state the right to free speech and expression are
obstructed and a violator may be seriously punished. The rule of Joseph Stalin in
Russia and Adolf Hitler in Germany had suppressed the voice of people. They argued
that the the freedom of speech and freedom of expression are to be done by the people
for the state only and no one can have a right to speak and freedom of expression
against the state and government (Achbar and Wintonick 1992). In the case
democratic country like India, the right to freedom of speech and right to freedom of
expression are blackmailed in the ethos of tolerance and non-violence.
The freedom of thought is that right which is considered to be a fundamental
right not only in the US Constitution but acknowledged globally. When we are talking
about freedom of thought we are talking about an act of mind to do some thing
independently without any hindrances. It is an act of thinking freely on an issue
158
without any restrictions and holding an opinion or idea or view point even though,
others do not like it or reject it. So, to deny a person to have the freedom of thinking is
not only a sinister activity in religion but a
crime equal to homicide. When a
limitation is put on free thinking and independent thinking of men, then, they are
refrained from enjoying freedom of thought and freedom of belief and fail to progress
in their life in any way. It is, however not to be mixed with freedom of expression. As
while, freedom of thought is the root of expression, it goes with cooking of ideas in
the mind, an imagination, a desire and then giving them to shape in expression. So,
right to freedom of thought is an essential condition of human growth and in the
absence of whichthere can be no formation and creation in the society. An erosion of
freedom of thought can erode freedom of expression and freedom of belief also.
Declaring the freedom of thought to be most basic human right, the Universal
Declaration of Human Rights states under Art.18 that "everyone has the right to
freedom of thought and conscience and religion." And seconding the article, the
Human Rights Committee states, "distinguishes the freedom of thought, conscience,
religion or belief from the freedom to manifest religion or belief. It does not permit
any limitations whatever on the freedom of thought and conscience or on the freedom
to have or adopt a religion or belief of one's choice. Thus, these freedoms are
protected unconditionally. (Human Rights Committee, General Comment No.22)
There is no dearth of "societies that permitted, in varying degrees, deviations from the
state-sanctioned and enforced religion; but such toleration depended upon the whim
of the majority or of the rulers and could be withdrawn as easily as it had been given"
(Urofsky 2002 : 19). But so far as implementation is concerned the freedom of
thought has always been suppressed or denied not only historically to the people by
spiritual and religious commandments but by laws and regulations as well. While, in
religious texts and scriptures the freedom of thought has been restricted and sever
sentence of punishments have ·been pronounced against the evil doers or thinking
other wise including death, in modern days, it is suppressed with charge of antinational and sometimes charged and punished with drug-addicts or also can be
declared as an unsound mind and lunatic by the authority and vested interests. An
independent thinker is always subjected to harassments and ill-treatments at the
hands of state and main stream politics, if his thinking, does not suit their
temperaments and way ofthinkings. What a pity! A person with freedom of thought is
leveled as either a depressed personality or criminal or a maniac or even, a
159
psychological disordered case by the authority and majority. The intellectual freedom
is another aspect of mental freedom and thus falls in the category of civil liberty and
hailed as a basic human right worldwide. This right is interlinked to rights to freedom
of thought and freedom of expression. It is supposed that without freedom of thought
and expression no professional can deliver his best in the society. As Art. 19 of the
Universal Declaration of Human Rights states that "everyone has the right to freedom
of opinion and expression, this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any media
and regardless of frontiers." This means that a person can think and act independently
and express his feelings without any obstructions. This is a right by virtue of which a
professional such as doctor, engineer, scientist, professor etc can think, act and
express freely without any restrictions and repercussions. A research scholar can seek
an information from the library or authority and share it with his friends or study it
for further development etc can be an essential intellectual freedom and termed as a
basic human right.
The freedom of belief is another issue which needs debates and discussions.
The origin of religious freedom however traces back to the time of separation of state
from the domain of church in Europe. As "The Western tradition of church-state
separation and religious freedom is often and properly, traced back to the dualistic
teaching of the New Testament, succinctly express in Jesus's admonition to render ...
unto Caesar the things which be Caesar's and unto God the things which be God's" (
Smith 2008: 1873). Thus, the demands made by both Caesar and God conflicted with
one another giving rise to a debatable issue in Europe. But the debate did not last
long, for the very reason that both the king and the priest had been creation of the God
and there was no dispute about it. Both these demands were synthesized in the
Freedom of Conscience and the dispute was brought to an end. Probably this is the
reason why, the fomiding fathers of American Constitution thought it indispensable to
include freedom of belief as fundamental right because Jesus Christ has been the Lord
of Conscience. The constitution thus, declared that every citizen has his freedom of
religion, freedom of conscience, freedom to propagate and freedom to profess any
religion of his like. The US follows a secular tradition of not supporting any religious
sect and allowing the people to observe it as per their own conscience. The state has
no business in the religious affairs of individuals and thus, it is left as a personal
matter of individuals lawfully. However, the freedom of belief and religion has been a
160
most debatable issue right from ancient period till today. While, to theocratic states,
the freedom of religion is highly restricted, in the case of authoritarian states, it is
suppressed. But when we are talking about freedom of religion we are talking about
tolerance to other religions basically which is definitely a later addition and modem
policy of assimilation. Otherwise, there has always been contrary ie. Intolerance. The
situation of freedom of religion is no less clumsy in the case of the US. Only recently,
the idea of religious freedom has gain ground. As in the case of the US " Puritans,
Evangelicals, Republicans, and Enlightenment exponents- these four groups of
founders held up the four corners of the wide and swaying canopy of opinion on
religious liberty in eighteen century America. Beneath this canopy were gathered
what they called the essential rights and liberties of religions: (1) liberty of
conscience; (2) free exercise of religion; (3) religious pluralism; (4)
religious
equality; (5) separation of church and state; and (6) disestablishment of religion"(
Witte 2000: 37). But the US has the distinction of blending both the freedom of belief
and freedom of worship into one and declaring it as a basic human right of all the
citizens. It is mandatory in the US to not to compel a person to follow a particular
religion or way of worship rather it is left up to the people to decide by their own
choice and inclinations. In fact, "The painful memory of religious persecution in
England and Europe and the experience of religious intolerance in certain states in
colonial America generated a strong sentiment against any union of church
state"(Henkin and Rosenthal1990: 105).
Mental Freedom is thus, a set of special freedom in the absence of which no
man can be at his best. Mental Freedom is valuable for human progress to that extent
that it is included in the fundamental rights section of constitutions of many countries
throughout the world. The right to information, right to believe, right to freedom of
religion, freedom of conscience, profession, practice and propagation of religion,
freedom to manage religious affairs, freedom as to the payment of taxes for the
promotion of any particular religion, freedom to attend any religious instruction or
religious warship in certain educational institutions, protection of interests of
minorities, right of the minorities to establish and administer educational institutions
right to culture and right to education etc. are all part of mental freedom. So, to
suppress the voice of people is to suppress the voice of god as Rousseau has said very
slightly, "the voice of people is voice of God." (Wayper 1995 : 146). Acknowledging
the value of mental freedom, the founding fathers of the US Constitution also felt it
161
indispensable for the growth of American people. They recorded such freedoms in the
very First Amendment itself which addresses the rights to freedom of speech, freedom
of press, freedom of assembly, freedom of petition, and freedom of religion. As " The
libertarian view- that the First Amendment is a protection of self-expression- makes
its appeal to the individualistic ethos that so dominates our popular and political
culture. Free speech is seen as analogous to religious liberty, which is also protected
by the First Amendment" (Fiss 1996 : 3).
Thirdly, the Contractual Freedom connotes freedom of contract. The law of
contract is in fact not only the offerer and offeree relations rather, comprises of terms
and conditions, promises and executions. It talks about an agreement of a deed which
is signed between parties to do certain thing or remain absent from doing certain
thing. This is thus, a promise made before each other to perform the obligation as per
the agreed term and conditions. So, when two persons promise to do certain thing or
remain abstained from doing certain thing for their mutual advantage, a contract takes
place. But, when people enter into contract for their mutual advantage, the trouble
arises when the freedom of contract is exploited by a stronger party. When the
str•:mger party imposes certain disadvantageous terms and conditions, on the weaker
party, then, the weaker party fails to carry out his part of promise. Thus, arises
conflict and the idea of freedom of contrast is violated. In the interest of justice, the
contractual parties must be equal, when coming forward to promise before one
another and sign the contract. They have their rationale choice either to sign the
contract or to leave it. They can reject it, if it fails up to their expectation. And, when·
no such equality exists, the parties sign the contract made a compulsion or force.
Thus, the modem judicial system, considers the freedom of contract as a personal
liberty and
so why
part of civil liberty which must operate under reasonable
restrictions. The right to property, even though has not been included in the section of
1
fundamental rights, it seems to be a fundamental right for the very reason that right to
property is associated with right to life. Because of its conflicting nature, the
contractual freedom is subjected to various interpretations. As for example, an
employer would interpret it (the freedom) to secure maximum profit out of the
contract. But a worker would plead for reasonable restrictions or terms. In such a
situation, if the stronger party is not curbed to safeguard the interests of weaker party,
the principle of justice will be done away with and the idea of liberty would be
suppressed. It will reduce to be a mockery of justice. The rationale behind "Justice as
162
Fairness"(Rawls 1972 : 12) is that the most disadvantaged persons should get the
benefit of the state and justice than the others. The proper way of 'distributive justice'
is not retributive but an adjustment between the two. Speaking about liberty John
Rawls said, "thus, persons are at liberty to do something when they are free from
certain constraints either to do it or not to do it and when their doing it or not doing it
is protected from interference by other persons"(Rawls 1972 : 202). Nevertheless,
even though, the history of freedom of contract is as old as the human civilization
itself, but in modern sense it dates back to the 191h c phase of individualism and and
growth of libertarianism. It is basically related to salary and economic transactions of
the individual. When the state put a limitation such as on minimum salary payable or
restricts the individual's economic freedom as guaranteed by the constitution, it
comes in to the forefront. Thus, when we are discussing about the freedom of
contract, we are discussing about right to equality, that is to say, equality before the
law, equal protection of law, equal access to the public places, equality in the matter
of employment. It implies that everyone has the right to equality and equal treatment
of law. The law of the land can not treat two citizens differently in the same situation.
That no discrimination can be made on the basis of colour of the skin, creed or
community etc. As "The Civil Rights Act of 1964 under Title VII of the act banned
employment discrimination based on race, color, sex, or national origin and created a
permanent Equal Employment Opportunity Commission to enforce its provisions"
(Urofsky 1991 : 17) has explained properly about equality before law. The right to
property, even though, mostly regarded as a civil right is also fundamental right of the
US citizens. The right to property implies the possession of property rightfully. This is
an act of ownership of physical and tangible things to which the owner can use,
consume, rent or sale it at his own will without any restrictions on it. The right to
property thus, comprises of possession of property at the disposal of the owner. It is
an act of ownership of physical and tangible things. But in the case of the US right to
property is a constitutional right and can not be abrogated in any manner except under
the due process of law. The 141h Amendment and the 5 1h Amendment deal with private
property and prohibit the state to take away private property of citizens for any public
purpose or if, there is compelling cause to take over then, such a take over will have
to be compensated properly by the state. The right to marry is another freedom of
contract recognized by the constitution. The union of marriage is viewed in the US
not as a religious rite but as a civil right, even though, right from the ancient time,
163
marriage of two opposite sex persons for social union has been seen as a religious rite
and a sacrosanct obligation, but in the case of the modern US it is seen as a civil right
and thus, has been included in the basic rights of citizens constitutionally. It is
regarded as a legal bonding of two persons for establishment of family and bringing
up of children born out of such wedlocks. However, the interference of the state and
religion into the right of marry has made the issue complex. In old days a marriage
has to be recognized by the state authority ie, state registration and the church ie,
church consecration. But the US constitution has done away with it and guarantees the
right to marry as fundamental right. This means the state can put a ban or disrespect a
marriage without the intension of the parties and due process of law. Thus, the law
recognize marriage as a social activity of rights and duties of two persons agreed to
perform their side of contractual obligations. The right to procreation is though, a
basic right recognized by the constitution, is considered indispensable for human
reproduction. The constitution states it clearly that the right to procreate irrespective
of marital status. The term procreation connotes reproduction of individual. But the
US constitution has not only accepted the man-made customs and traditions of
marriage in which such an activity is done only in a union of persons of opposite sex.
The constitution has approved the natural law also in this right. As reproduction is a
biological process, certain plants and trees reproduce individual without the help of
others, ie, asexual reproduction. The US constitution guarantees the right to procreate
irrespective of marital status, that is to say reproduction of individual without the
cooperation and help of partner or others. A person if free to do reproduction without
any limitations from the state and church and can also enjoy the right to direct a
child's upbringing in the way he thinks it fit. However, in the absence of adequate
social policy and social responsibilities freedom cannot be curbed. Thereby, not only
negative freedom will be
exped~ted
but also positive freedom will be suppressed and ·
freedom will be licence at the hands of haphazard and hooligans. So, civil liberty is
the liberty which man enjoy in his social capacity as human being in a society. It's a
condition for making one's all round development. It is thus, freedom from all the
restraints and to let the human beings free like birds and bees. For instance, it has
been said very rightly that what can an individual citizen do, when the system in
which he lives does not allow him to do. So, when they will be set free, they will of
course, become rational and human and there is no doubt about it.
164
The Patriot Act and Violations of Civil Liberties
Patriot Act and Physical Freedom:
The Patriot Act has substantially curbed not only the right to move freely but it
has also restricted right to protect one's body at the hands of authority. The Writ of
Habeas Corpus is a procedural device guaranteed by the constitution at the disposal of
the Judiciary. The "Habeas Corpus" is a Latin term which implies, "You may have
the body''. That is to say, so long as you have the body, you have the right to protect it
from any injury. It is "a writ or legal inst:Iilment developed in England to bring an
imprisoned person to court and explain the legal basis for the person's
detention"(Maddex 1998 : 491). It is thus, a legal procedure to force the government
to prove to the court that a person has been lawfully taken in custody and has been
deprived of his personal liberty and if this condition is absent then, the person is
allowed to be free from custody. This is not only a constitutional prescription but
considered as a violation of human rights. But Patriot Act has suppressed this
constitutional tool as well. However, Physical Freedom is related to the Due Process
of Law in the US and the human rights dictionary defines due process
as, "Fundamental legal fairness and justice in both substance and procedure. Most
often used in the human rights context, meaning fairness in legal procedures,
particularly in criminal procedures" (Cartwright and Conde 2000 : 66). This means
that while, dealing with the legal process, the government and the state must follow
"fairness" as principle of administration of justice. As in a recent International
Conference of Jurists on Terrorism, Rule of Law and Human Rights in New Delhi, the
Chief Justice of India said about taking up cases of terror suspects, "how heinous their
crime be, but refusal to represent them affects the right to a free and fair trail. It
violates the principle of law"(The Indian Express, December 14, 2008 : 4 ). However,
idea of due process though seems to be of a recent origin in the US Constitution, it
had its link with the Magna Carta of 1215. When the king John of England said," No
freeman shall be taken or imprisoned or disseised of his freehold, or liberties or free
customs or be outlawed, or exiled, or any otherwise destroyed, nor will we go upon
him nor send upon him except by the lawful judgment of his peers or by the law of the
land."5 Then the idea of due process came in. The Due Process, thus, is associated
5
Chapter 39, The Magna Carta, 1215.
165
with the 'Law of the Land'. It was rule of law and not the rule of man. And the
primary intention behind it was to limit the power of the executive i.e, monarchy and
give way to freedom of land owners. In the US too due process was used as " law of
the land". Both these terms were used for similar purposes. 6 Since then, due process
has been given an important place in the US. 7 It was the state of New York which was
the first and the only state to plead for inclusion of due process to the US
Constitution. In 1788, however, the state of New York ratified the constitution and
proposed for an amendment that " No person aught to be taken imprisoned or
disseised of his freehold , or be exiled or deprived of his Privileges, Franchises, Life,
Liberty or Property but by due process of law ."8 However, it was Madison who later
added "Without" to due process of law. So, when we talk about due process of law
in the American context, it means we talk about some thing that the American people
think to be right for themselves. The due process of law of a society implies those
laws of society which are thought to be right. They are established laws of a people
and when they are codified and written, they become Constitution. Due process
therefore, refers to the fairness, regularity, equality, justice and rule of law. It is that
established procedure of law which guarantees that justice will have to be delivered in
a certain established process. No body can obstruct the course of action of law. So
Due Process can be defined as "the exercise of governmental power under the rule of
law with due regard for the essential and fundamental fairness rights of individuals". 9
Due process of law is thus, the procedure established by law in the US Constitution .
Interpretation of Due Process: Constitutionally, due process of law is viewed in two
different ways, such as, "Procedural Due Process" and "Substantive Due Process". 10
While, in the former case, due process is explained as how the law is just and the
source of fairness is constitution i.e., "announcement before hand" but in the later
case, due process is explained as why the law is just and the source of fairness is
beyond constitution i.e., "depending on situations or requirements".The Fourteenth
Amendment basically deals with substantive due process. u Though, due process is
exclusively mentioned in two places such as the Fifth Amendment and the Fourteenth
6
9
10
11
The Constitution of Maryland, 1776.
The New York Bill of Rights, 1787.
The New York Ratification Resolution, 1788.
Due Process Issues, Retrieved From http://faculty.ncwc.edu/mstevens/410/410ect06.htm
Ibid,p.2.
United States v. Carolene Products Co. 304 US 144, 1938.
166
Amendment in the U.S. Constitution, a number of inalienable rights of Americans
which have been enshrined in the 'Bill of Rights' in the Constitution has been
seriously violated by various provisions of the USA-PATRIOT Act, 2001. However,
the issue of conflict between security and liberty from the stand-point of due process
of law is viewed primarily in two ways of flawed process and the civil liberties
concerns. 12 The act passed through a "flawed process" under heavy pressure from the
Bush Administration and Office of the Attorney General. The act became law before
any real effort was made to determine what intelligence and law enforcement
breakdowns had failed to prevent the attacks. 13 The Senate judiciary committee held
. only 011e hearingwith a single witness Attorney General John Ashcroft who left the
senate before answering any questions from the Senators.
14
Again, the act has
surpassed many constitutional provisions and has infringed upon civil liberties of
citizens. The U.S. Constitution is the primary source of law in the United States. Thus
none of the other types of law may stand if it is in conflict with the constitution. (Carp
and Stidham 2001 : 5)
The Due Process in the Constitution : The USA-PATRIOT Act, 2001 has been
designed in such a manner so that a number of important amendments have been
violated. First, the US Constitution provides that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press, or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances"
15
Secondly,
the Constitution declares that "The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures, shall not be
violated and no warrant shall issue, but upon probable cause, supported by oath or
affmnation, and particularly describing the place to be searched, and the persons or
things to be seized" 16; There is a case which must be reminded here that during the
colonial period, the British administration was empowered to search and seize any
homes and persons with a search warrant. But after the country got independence on 4
July, 1776, this practice has been stopped and privacy of people has become a matter
12
13
14
15
16
People for the American Way- The Issue: USA-PATRIOT Act, Retrieved from
http://www. pfaw. org/pfaw/general/defaul t.aspx?oid=9394&print=yes&uni ts=all
lbid,p.l.
lbid,p.l.
First Amendment, The US Constitution.
Fourth Amendment, The US Constitution.
167
of civil liberties and fundamental rights which could not be abrogated. The American
"Declaration of Independence is a statement of grievances and a demand for justice,
ending in a declaration ofwar"(Myers 1959: 4) which can not be denied. The Fourth
Amendment protects a person's right to privacy against any unauthorized and
unlawful search and seizure. However, Patriot Act has done away this and authorized
the law enforcement to go for search and seizure even without a probable cause, a
destination, a person and a warrant. As such ''The use of Backscatter, a device that
allows officials to virtually strip search air travelers, has become a cause of concern
worldwide"( The Times of India: December 14, 2006). Gary Cook(a graphic designer
in Britain), who was screened by this machine says, "It was shocking. I felt a bit
embarrassed looking at the image"(The Times of India : December 14, 2006).
Thirdly, the Constitution of the United States declares; "No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war or public danger, nor shall any
person be subject for the same offence to be put twice in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation" 17 ; Fourthly, The
constitution guarantees defendants, "The right to a speedy· and public trial, by an
impartial jury and to be informed of the nature and cause of the accusation; to be
confronted with the witness against him; to have compulsory process for obtaining
witnesses in his favour, and to have the Assistance of Counsel for his defense'' 18 ;
Fifthly, the constitution in the Eight Amendment states, "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishment inflicted" 19
;
and Sixthly, the constitution prohibits the government from denying "to any person
within its jurisdiction the equal protection of the laws" 20 . It is claimed that various
provisions of the USA-PATRIOT Act, 2001, either has clashed with constitutional
provisions and laws or have abrogated them violating the due process of law.
17
18
19
°
2
Fifth Amendment, The US Constitution.
Sixth Amendment, The US Constitution.
Eighth Amendment, The Constitution.
Fourteenth Amendment, The US Constitution:
168
Abuse of Due Process cases: The following is a short list of examples of alleged
abuse of due process cases. In the city of Las Vegas, the police used a FISA warrant
to monitor the activities of a strip club owner. The FBI ordered all journalists that
have ever written about computer hacker Adrian Lamo to turn over their information
under the auspices of act. 21 In September, 2003, the 'New York Times' reported that a
study by Congress showed hundreds of cases where the act was used to investigate
non-terrorist crimes. 22 In April, 2004, a Muslim Idaho man went on trial on charges of
supporting terrorism by maintaining some websites that supported violent activities.
23
This type of 'guilt by association' was resurrected by the 1996, 'anti-terrorism' act
signed by President Bill Clinton, but later was further expanded by the act. In May,
2004, the FBI cordoned off the entire block of a University of Buffalo, Associate Art
Professor's house, impounding his computers, manuscripts, books, equipments for
further analysis. The Buffalo Health Department temporarily condemned the house as
a health risk after suspicious vitals and bacterial cultures were discovered at his house.
The Professor's art involves the rise of biology equipment as part of a project
educating the public about the politics of biotechnology was charged with section-175
of the US Biological Weapons Anti-Terrorism, which was expanded by the Act. 24 A
man was arrested at a college library in New Mexico on 131h February, 2003. Andrew
J.O'Connor was arrested at St. John's College Library in Santa Fe, New Mexico, after
Secret· Service agents accused him of making threatening remarks about. President
Bush in an Internet Chat room. He was arrested by the security officer while, talking
to a woman in Internet, however, he was released after 5 hours. 25 A reputed
organization ACLU was prevented from releasing the text of its law suit challenging
aspects of the act. Its because the authority claimed it would violate secrecy
provisions of the act. 26The maintainer of a TV show for website was charged with
copy right infringement after the MPAA directed the FBI to obtain records from the
sites Internet services provider about the site under the act. 27 Another important issue
wherein it is alleged that the due process of law has been violated is the suspension of
21
22
23
24
25
26
27
Available at http://www.theregister.co.uk/2003/09/29/tbi_bypasses_first_amendment/
Available at http://www.jointogether.org/sa/news/summaries/reader/O, 1854,567051 ,OO.html
Available at http://www. washingtonpost.com/wp dyn/articles/ A13072-2004Apr 14.html
Available at http://www.caedefensefund.org/
The USA-PA1RIOT Act and you, Act/React. Available at
http://libraries.uta.edu/actreact/privacy.asp
Available at http://www. washingtonpost.com/wp-dynlarticles/A51423-2004Arp28.html
Available at http://www.sg1archive.com/nightmare.shtml
169
habeas corpus as guaranteed by the US Constitution. While, the Constitution has
warned against any suspensions of the habeas corpus in the interest of individual
liberty and privacy, (the 'habeas corpus' can only be suspended by an act of the
Congress and in the event of an emergency). But the procedural questions have been
raised in relation to those who were non-citizens, at least two cases are there wherein
US citizens are involved, one is Yaser Hamdi, and the other is Jose Padilla. They are
not allowed to access to the courts violating provisions of habeas corpus and NonDetention Act, which provides "no citizen shall be imprisoned or otherwise detained
by the U.S. excepts pursuant to an Act of Congress" .28
Extraordinary Detention: When a person is taken into cust()dy by authority without
a proper ground and on the basis of law, such an arrest is known as arbitrary arrest
and thus, prohibited by the law. The human rights dictionary defines detention as
"The exercise of physical restraint upon an individual depriving him or her of liberty
and holding him or her in government custody for reasons other than to face criminal
charges."(Cartwright and Conde 2000 :59). Such a detention is strictly prohibited by
the human rights law but the Patriot Act has gone to the extent to detain innumerable
persons in custody without valid reasons and grounds of detention. The USA
PATRIOT Act, 2001 has been extensively criticized due to its provisions relating to
enhanced police powers and detention. As per various provisions of the act,
extraordinary detention is permitted without any limitation of time as part of
investigation and an unnecessary suspension of habeas corpus without valid reasons. 29
The expanded power of government has endangered rights of individuals before the
courts. It crushes the right of privacy in the process of investigation the treatment of
those individuals, especially non-citizens who have been detained for an indefinite
period of and in unknown location as part of investigation after the 9111 terrorist
attacks." Detention of suspects for indefinite periods without trial and when criminal
charges are brought, the government's attempt to limit the access of the accused to
important evidence." (Kidwai 2003 : 5). have been on the rise.
Though, the
Department of Justice states that those detainees have been accorded "procedural
protections" due to them, many libertarians claim that not all detainees are accorded
procedural problems due to them. A number of detainees have been held without any
wrongdoing or without the knowledge of the crime they committed. They are not
28
29
Title 18 United .States Code Sec. 4001(a) (2000).
The Writ of Habeas Corpus can only be suspended by an act of US Congress.
170
allowed to access to the court of law and legal counsel as well or if at all they were
allowed to access to counsel, they were allowed with government supervision i.e.,
without 'attorney-client' privacy. A number of detainees have been held under
extraordinary detention. "Ethnic profiling, it is alleged, is also responsible for the
unjustified harassment and occasional detention of Arab and Muslim visitors to the
US." (Kidwai 2003 : 5). Those detainees who have been held for minor immigration
violations were charged with trivial criminal offenses or were held on 'material
witness' ?0 Such warrants are issued only for 'mafia trails' but in the minor
immigration violations they have been used. 31 The right to protest and the right to
assemble have been drastically limited. As the partof war on terrorism, theUSAPATRIOT Act, 2001 has gone far with a policy without any congressional approval to
designate citizens of America as "Enemy Combatants" who are suspected of having
any link with terrorist activities. 32 In a landmark decision, the Supreme Court upheld
that the detention of persons as enemy combatants who were "part of or supporting
forces hostile to the U.S. or coalition partners" in Afghanistan and who "engaged in
an armed conflict against the United States". 33 But the court ruled the detention of
Hamdi invalid in an 8-1 decision. 34 In another notable case, the Supreme Court, rules
in 6-3 decision that foreign detainees held at the U.S. naval base in Guantanamo Bay,
Cuba, are entitled to file petition for writs of habeas corpus when they feel they are
detained illegally. 35 And the administration is adamant on its policy and claim its
designation is legal and constitutional as well.
Though, the procedural question is raised in relation to non-citizens. But there
are no dearth of cases in which even the citizens of America are implicated. There are
at least two eye borrow raising cases wherein citizens of America too are not spared.
They are Y aser Esam Hamdi and Jose Padilla, Yaser Hamdi is accused of
involvement with Al Qaeda, was born in Louisiana to Saudi Arabian parents. But Jose
Padilla was a man of New York born to Puerto Rican parents. Both Hamdi and Padilla
were captured in different situations but were accused of involvement of terrorism.
Yaser Hamdi is allegedly a Taliban fighter who was captured and detained in
30
31
32
33
34
35
Sec. 411, The USA PA1RIOT Act, 2001.
Sec. 412, The USA PA1RIOT Act,2001.
Sec. 802, The USA PA1RIOT Act, 2001.
Hamdi v/s Rumsfeld, 124 S.Ct.2633, United States Supreme Court, 28 June, 2004.
Ibid.
Rasul v/s Bush, 124 S.Ct. 2686, United States Supreme Court, 28 June, 2004.
171
Afghanistan by the "North Alliance" forces in Afghanistan (Caron 2004 : 782) in
2001. He however, was transferred to US. Military Custody and again transferred
along with other prisoners to a Naval base in Guantanamo Bay of Cuba in 2002.
(Caron 2004 : 782). But when his American citizenship was established, he was
removed from the naval base of Guantanamo Bay to another naval base in Norfolk,
Virginia. Subsequently, transferred to a naval base. In Charleston, South Carolina. It
was this place where he held in solitary confinement. He challenged his case on the
ground that no American can be detained without Congressional Authorization,
which states,"No citizen shall be imprisoned or otherwise detained by the United
except pursuant to an act of Congress."36 Yaser Hamdi appealed to the
States
honorable US Supreme Court and "the Supreme Court on June 28, 2004 held it that
Hamdi was entitled to counsel and to challenge his detention." (Zayas 2005 : 25).
Hamdi was successful and later on Oct, 2004 he was released from detention and
"deported to Saudi Arabia" (Zayas 2005 : 25). When another accused called John
Walker Lindh (was the first to be captured in Afghanistan) was sent to civilian
custody and also allowed to access to counsel, but Yaser Hamdi was never allowed
these facilities as prisoner, like John.
Jose Padilla who was arrested on 81h March, 2002, when he arrived at O'Hare
airport in Chicago, was arrested on a material witness warrant.(Edgar 2002). He was
detained without any charge. And "the Bush Administration has circumvented his
constitutional right by labeling him as an 'enemy combatant' although he was not
captured in Afghanistan or Iraq but at O'Hare airport in Chicago" (Zayas 2005 : 25).
Soon after his arrival he was arrested and detained. But Padilla was assigned counsel
under the material witness statute. ·While, a hearing was fixed on 11 June for his
challenge to his detention by a federal court judges but the administration, instead of
contesting· his case transferred him to a military custody. He was not allowed to
access to any court of law or his counsel, hence. Later on declared that the judge no
longer had jurisdiction to try the case. In defense of his action, Attorney General John
Ashcroff said in a national televised program that Jose Padilla was involved in a
conspiracy to detonate a conventional bomb that would have spread radioactive
material.
36
18 US Code, Sec. 400 (a).
172
Attorney General Ashcroft proved that the detention of Padilla was inevitable
to disrupt a terrorist plot; Padilla has been confined in a military custody in Goose
Creek of South Carolina since then. It is claimed that except Padilla, all other accused
were held on federal or state criminal charges, but Padilla was never allowed these
procedures. The act provides to expand the indefinite detention of American citizens
in the military custody if they found to be involved in any sort of terrorist activities
defined in the act. As per a report, the administration is planning to constitute a highlevel commission of Secretary of Defense, Attorney General and the Director of CIA
to determine the Secret and without hearing cases in which American citizens will be
designated as 'enemy combatants". (Jess :Brevin 2002). And such 'enemy combatants'
will be subjected to military custody. "Tens of thousands of persons throughout the
world are subjected to indefinite detention frequently incommunicado, and
government try to justify such irregular imprisonment on the basis of national
security, state of emergency, illegal migration and other so called extraordinary
circumstances." (Zayas 2005 : 16). Those citizens and non-citizens who have been
sent -to military custody will be imprisoned without any charge, access to counsel,
without judicial review and without any rights to be released until the govt. has
stopped
fighting the 'war on terrorism'. This means that such detention will be
indefinite. Tom Ridge, the Homeland Security Director has said that the 'war on
terrorism', like the 'war on drugs will not come to any real close. (Salant 2002 ). It is
also said that the President has not received and not subjected to seek the approval of
the congress in executing this plan. This means the administration can go single
handedly to execute the plan of deputation of "enemy combatants" to the military
custody. Second thing is that the indefinite detention without charge of American
citizens has been against the constitutional provisions. The constitutional provisions
are applicable during norrrial time or war or even during national emergency. Thus,
constitutional guarantees include the right to a trial by jury in criminal cases and the
privilege of the writ of 'habeas corpus' which shall not be suspended except under
laws made by the congress i.e., in the case of foreign aggression or rebellion, when
safety of citizens will be at stake. 37 The act of suspension of habeas corpus can only
be done by the congress. The Congress only can determine that an 'invasion or
rebellion' has taken place and authorized to take measure of indefinite detention
37
Art I, Sec.9, The U.S. Constitution.
173
without judicial process and suspending the basic right of habeas corpus? 8 The
congress can only declare war, detention and trial of "enemy combatants" by the
military tribunals. 39 The rationale behind detention and suspension of habeas corpus
was to put the constitutional provisions into practice. The founding fathers of the
constitution never intended to give the Executing Branch any extra power to curtail
individual liberties, they wanted that the basic fabric of the constitution in no case be
abridged. The powers of the President as the Head of the State comprise of his power
as Commander-in-Chief and his duty to take care that of law of the land i.e., the
constitution be faithfully executed.40 In the capacity of President of the USA, he is
required to act in accordance with the constitutional limitations. So it is not the
President but the Congress is empowered to declare war and make laws regulating the
armed forces, constitute tribunals inferior to the Supreme Court and so also can
suspend the habeas corpus. As James Madison has said, ''The accumulation of all
powers, legislative, executive and judiciary, in the same hands, whether of one, a few,
or many and whether hereditary, self appointed, or elective, many justly be
pronounced the very definition of tyranny. 41 In this respect, Alexander Hamilton said,
"the power of the Commander-in-Chief would amount to nothing more than the
Supreme Command and direction of the military and naval forces; while, that of the
British king extends to the declaring of war and to the raising and regulating of fleets
and armies, "all of which, by the constitution under consideration, would appertain to
the legislature. 42 So, the president had the power to command the armed forces but he
can not determine the legal aspects of conducting war and who is enemy. Whether to
order for military tribunals to try offenders or to suspend habeas corpus is certainly
not at the disposal the President. In 1801, Chief Justice Marshall had made it clear
that the Executive Branch did not have free-floating war power, which exceeded the
power prescribed by the Congress. When an undeclared war against France was going
on, in a number of cases involving the seizure of vessels, the Supreme Court clarified
that it is the Congress which is the ultimate authority to order military and not the
38
39
40
41
42
Ex Parte Milligan, 72 US 2, 121, 122, (1866); Ex Parte Marryman, 17 F. Cas. 144, 149 (D. Md
1861).
Ex Parte Quirin, 317 US 1 (1942); IN re Yamashita, 327 US I, 11-12, (1946).
Article.2, Sec.2, The US Constitution.
The Federalist No. 47, James Medison.
The Federalist No. 69, Alexander Hamilton.
174
president. 43 When, President Abraham Lincoln tried to use his power of President and
suspended the writ of habeas corpus, Chief Justice Taney, obstructed him and showed
him his limitations to accede the power of Congress. And again, when President
Truman ordered for the seizure of steel mills to settle a labour dispute during the time
of Korean War, the Supreme Court struck down the seizure order for the reasons that
the order was not passed by the Congress. 44 In such a situation, its doubtful whether
such an action can be constitutional or if at all constitutional, can be passed by the
Congress. For a simple question that there is no clear cut definition of either 'enemy'
or 'combatant'. And whether American citizens can be labeled as 'enemy combatants'
and detained in what standard and evidence has been an answered question. The
Supreme Court, had made it clear that 'enemy combatants' were those individuals
"who associate themselves with the military arm of the enemy government and with
its aid, guidance and direction enter this country bent on hostile acts ... "45 The makers
of the U.S. constitution were well aware of the fact of executive tyranny in the
absence of congressional checks. The writ of habeas corpus can only be suspended by
the congress during invasion and rebellion. And Federal Statues has the authority over
emergency powers such as detention of non-citizen enemies and seizure of
communication facilities, business and property etc when congress has declared war}6
The Supreme Court has cleared that the president can invoke extra ordinary power at
the time of no war or emergency.
Thirdly, detention of American citizens in Military Facilities violates Federal
Law. The detention of US citizens as "unlawful combatant" violates Federal Statute.47
The statute prohibits clearly any indefinite detention of American citizens without
charge. Such a provision will definitely provoke American citizens. Recently, the
Bush Administration has tried it vigorously to legislate on indefinite detention of noncitizens in which the accused would not be allowed the judicial review and writ of
habeas corpus.48 But the congress rejected it and clarified that charges should be filed
within seven days. Even for non-citizens who have been detained indefinitely but
have been found removable but could not be deported, subject to reviews each six
43
44
45
46
47
48
Uttle v. Barreme, 6 US 170 (1804); Talbot v. Seeman, 5 US I, 28 (I80I); Bas v. Tingy, 4 US, 37
(I800).
Youngstown Sheet and Tube Co. v. Sawyer, 343 US 579 (1952).
Ex parte Qurin, 3I7 US, I, 38 (1942).
Title 50 United States Code Sec- 2I; TitleiO United States Code Sec- 2538.
Title 18 United States Code Sec- 4001.
Title 28 United States Code, Sec- 2442.
175
months to determine whether there was a continuing threat to national security such as
non-citizens would be detained indefinitely and would be allowed to judicial review
through writ of habeas corpus. Fourthly, military detention of American citizens
violates 'Assurances' of President Bush, made personally to the Congress. When
President George Bush assured to members of the congress that John W. Lindh who
.
was captured fighting with Taliban, would be allowed to fair trial in the civilian court,
people applauded the President for his foresight but when he signed a Military Order,
in November 2001, approving the detention and trial of non-citizens by military
tribunals it became a matter of serious debate on national security. 49 A great champion
of liberty, Thomas Paine once said that he that would make his own liberty secure
must guard even his enemy from oppression; for if he violates this duty he establishes
a precedent that will reach himself. The indefinite detention of American citizens in
military facilities may be counter productive for administration, if the US would not
~
.
..
learn anything from its past mistakes and expert advices. However, Obama
Administration seems to be kin on releasing those persons who have been detained in
various detention centres and without any legal addressability to their cases is a
notable development in recent times. The new administration has started giving full
legal assistance to terrorists and suspects to defend their cases in the US court of law,
which was never allowed and possible in Bush era. If the statement given by the new
Attorney General Eric Holder to be believed when he said with regard to transfer of
Ahmed Ghailani, the first terrorist-detainee," The Justice Department has a long
history of securely detaining and successfully prosecuting terror suspects through the·
criminal justice system, and we will bring that experience to bear in seeking justice in
this case."50 The remark paves the way for civil liberty implications in many ways.
The US Embassy officials killer "Ahmed Ghailani who has been transferred from
Guantanamo Bay, Cuba to New York court for his prosecution,"51 is a promise wellexecuted by the Obama Administration as a precursor to his policy of detention of
foreign nationals. But this is tip of an ice-berg. A lot many work has to be done to
bring the difference between security and liberty by the administration.
49
50
51
Military Order, Detention, Treatment and Trial of Certain Non-Citizens in the War of Terrorism,
66 Federal Register. 57, 833 (November 13, 2001).
The Indian Express, New Delhi, Dated lOth June,2009, p.16.
Ibid, p.l6.
176
Patriot Act and Mental Freedom:
Mental Freedom or freedom of thought and expression is regarded as an
indispensable act for an all round development of human personality. It is other wise
known as Intellectual Freedom, Freedom of Thought, Freedom of Expression,
Freedom of Belief and so on are indispensable for human growth and pursuit of
happiness in life. But Patriot Act has been able to suppress those voices of criticism in
the absence of which Americans themselves will be at doomed and dumb. The US
administration has not only severed the voice of people but did not allow to speak
freely. The Telephone Records and Roving Wire Tapping are best examples of that
restrictions. The present act has been vociferous to that extent that it can tap a
telephone conversation without any wrong doing. The act allows a FISA (Foreign
Intelligence Surveillance Act) Court to grant a 'roving' wiretap. This means that the
wire tap is attached to a person and not a particular phone or computer. 52 While, the
law before the USA-PATRIOT Act, 2001 was restricted to a particular type of
telephone device for a wire tapping but the present act has gone too far on wiretapping. The new law on wire-tapping should have protected the privacy of citizens
against governmental authority. It could have made a balanced approach keeping the
privacy of the people into account, but in stead, the act established a 'No Privacy
Zone', which follows a target of surveillance. 53 And if a surveillance target enters
•one's home his or her telephone comes within that "No Privacy Zone" and thus, his I
her telephone can be tapped. In a situation in which law becomes so callous and
careless that private rights and liberties of citizens gets jeopardized even without any
wrong doing or knowledge of wrong doing. There are right to freedom of speech and
right to privacy guaranteed in the constitution but the act pays no value on them. The
provisions are carried out in such a boldness that it does not sparred even the person
within the system. Jane Harman, Democratic Representative from California had to
defend herself recently, when she was picked up on
a national security wiretap
offering to intervene on behalf of defendants in an espionage prosecution (Stein and
Starks 2009 : 977). Secondly, Internet Sources Records and Computer Sign Up
Records also have been law fully collected in the case of doubt without giving any
importance to the sentiments and personal feelings of ordinary people. The healthy
52
53
Sec.206, The USA PATRIOT Act,23001.
The Issue: USA-PATRIOT Act, People for the American Way. Retrieved From
http://www.pfaw. org/pfaw/general/default.aspx ?oid=9394&print=yes&units=all
177
practice of monitoring a citizen's communications is backed by 'probable cause' of
suspicion of any criminal intention. But the act by allowing the enforcement authority
to monitor one's Internet communication misdemeanor now the process of
surveillance. The certification of surveillance of Internet by the law enforcement
authority is sufficient to establish nexus between the person and terrorism. Such a
certification would sure substandard the process of surveillance. They would fall short
of active judicial oversight. The act states that surveillance does not applicable to the
'content' of Internet communications but applicable to e-mail address and the
recipients as well. In the present day context, disposable cell phone and public
Internet are frequently used. These can be best tools at the hand of law enforcement
system to track the culprits. The anti-terrorism law permits the law enforcement
agents to ascertain that the target is actually using the phone to be tapped. This
implies that if a terrorist was using the Internet connection at a public library and law
enforcement was using a FISA wiretap order to monitor his Internet communications.
The law enforcement agency might monitor all Internet communications at that web
site after the terrorist left the site and was no longer using the Internet. This is nothing
but an invasion in the private life of innocent citizens. Though, the Supreme Court is
yet to decide whether roving wiretaps amount to violate the Fourth Amendment, but a
number of lower courts have definitely decided them. 54 Thirdly, Library records and
Academic Records: The new provisions in the act changes the rules relating to records
on research works. While, the Foreign Intelligence Security Act (FISA) had subjected
only to common carriers such as airplanes, public accommodation facilities, hotels,
physical storage facilities or can rental facilities to business record authority. But the
present act has done away with those categories and opened all types of library
records and business records which included borrowing and issuing of books and
articles from the libraries by the students and readers. 55 The act also permits to look
details into the professional career and business of persons, whether they have done
anything unlawful as per the new provisions. Any business records can be sought by
54
55
Unites States v/s Hermanek, 298 F. 3d 1076, 1087, 289, (9th Circle 2002); Unites States v.
Gaytan, 74 F. 3d 545, 553 (5th Cir. 1996); United States v. Bianco, 998, F. 2d 1112, 1121 (2"d Cir.
1993).
Sec.215, The USA PA1RIOT Act, 2001.
178
the authority at any time 56 As per the new provision of the act, a business record can
be obtained by the authority from a third party. 57
The Patriot Act has never spared the students, resource persons , professionals
and academic activities also. As it was largely believed that the 9/11 could be possible
due to unauthorized students enrollment in the US. The act thus, provides for keeping
students records and if such records are certified as relevant to investigations, then
such institutions are bound to disclose various informations of the students, such as
his area of studies, specialization, grades, courses of studies, and ethnicity.
58
Such
students are asked to vacate the US and proper and necessary actions can be taken
against them. The student studying in universities and students' records were for some
times now, right from 1974 was governed by the FERPA, 1974. As per FERPA or the
Family Educational Records Privacy Act, 1974 the University and the Staff are liable
to protect the privacy of students' education records and every students and their
parents are supposed to receive such high lights through notice to the parents under
guide to students rights and responsibilities. Every student who is enrolled in to the
university is entitled to inspect and review the educational records as per law. The
student can seek his own educational records only and he can not seek the records of
any other students. For a request of records, a student has to mention his request in
writing to the officials and the Registrar has to pass it without any doubt. The
Registrar has the authority either to allow it or reject it also, if he does not satisfy over
the request. But even, the Registrar is empowered to allow any things he likes. He has
to work in his own limitations put by the university authority. The Registrar is not
allowed to give permission to view all educational records of the students.
The
FERPA prohibits the university authority to disclose financial records of the parents,
confidential letters, letters of admirations, personal notes of the institution,
behavioural records,
medical records, psychological records, admission records,
employment records and so on. In the case of a mistake or wrong entry into the
university register, the student is entitled to bring this discrepancy before the authority
in writing. He can ask the authority to correct the wrong entry or mistake and the
authority is bound to do it. The burden of showing the proof is with the student.
Officials in the university are authorized to inspect the students records but, if such
56
57
58
Sec. 501-503, The Foreign Intelligence Security Act,1978.
50 US Code, Sec. 1861.
Sec.507 and Sec.508, The USA PATRIOT Act,2001.
179
records are misus.ed by the staff or authority then, the university will be liable for any
misplace or unlawful actions. In such cases, the staff is responsible and can be
instructed by the authority. In case of any violation the student can have rights to
complain before the court of law also. He can complain before the Department of
Education as well for restoration of his privacy. Therefore, it can be said aptly that no
information of students relating to their employment status, admission, medical
records,
financial records, psychological records, behavioural records, law
enforcement nature etc can be disclosed by the university. A student can seek legal
help in the case of any violation to these privacy. But, with the passing of Patriot Act,
the FERPA has been amended. And the act has empowered the law enforcement
authority to seek and get any informations of a student relating to his Internet habits,
conduct, area of study, specialization, academic activities, research topics, financial
records, mental health records. If, a university supports such requests of the law
enforcement authority, then, it does not violate the FERPA. The university is free to
disclose the records relating academics of a student without their consent. The
Attorney General is empowered by the act to seek a student's multiple records for
investigation of a crime and disclose it also without violating the right to privacy as
guaranteed by the constitution and the FERPA, 1974. If, the university discloses such
records to the law enforcement authority, it would not be liable for any breach of
trust. The student can not have right to challenge the same breach of trust before the
court of law. Again, the Patriot Act has empowered the authority to expand the
electronic student visa-monitoring of the Federal government. The idea of electronic
surveillance as provided by the act also covers the students, professors, and the staff
of university. Now it has been compulsory on the part of teaching institutions to
report about the non-immigrant students to the Department of Education. It is done by
SEVIS or Student and Exchange Visitor Information System under various visaclassifications such as F, J, M etc. And the educational establishment does it, lawfully.
For such an act there would be no violation of FERPA or any other provisions of law
existing in the US. Thus, all these show that the Patriot Act has surpassed many
existing provisions which were sound enough to protect civil liberties of citizens and
non-citizens both and has enforced its authoritarian practice. Teaching and learning
process are said to be pious works and they need holistic approach. In the absence of a
proper foundation and system the entire idea of education can be ruined. If,
appropriate conditions would not be created if, necessary infrastructure will not be
180
provided then, the whole process of academic activities and development with
humane spirit will be smashed. If, necessary condition for promotion of education
would not have been created in the past, then, the present world would have been
more brutes, nasty and selfish.
Patriot Act and Contractual Freedom:
Contractual Freedoms are considered most important in the present day life.
While, the world is going global, the idea of production and distribution too are
getting changed very fast. The business houses, organizations, offices and systems are
becoming more and more organized leaving the individual citizen in a state of
helplessness, voiceless and support less. Individual citizens are sandwiched between
mercantile laws and organized business and system. In such a situation, Patriot Act
has snatched away the basic rights of individual citizens and has pushed them to
follow a set of rigorous rules and procedures to get a job or buy a product or sale it.
They are asked by the authority to disclose it to the law enforcement mechanism in
the case of need and without any objections and legal rights. They are not supposed to
keep their "Medical Records" and "Purchase Records" secret as well. The act has
opened up all types of records including visiting of hospitals and dispensaries by the
citizens and non citizens as well. Their shopping lists purchase records are asked by
the authority in the case of need. The shopkeepers are asked to track the purchasers
and the act has made it mandatory to record them for use in future. The act permits to
seize the medical records of the persons involved in terrorist activities. Doctors are
worst hit due to this law enforcement. It is said that medical records are not only facts
about the number of times a person visited his doctor and the hospitals for a physical
or mental problem but they can reveal the facts regarding his family history and
abortion done a long ago, sexually transmitted diseases, mental health and whether he
was depressant in his life for any thing. So, a law enforcing agency such as police
personnel can at any time ask a person a driver of a car to check his physical and
mental state at any given time and he can access to the data base also. 59 Such records
can be collected by "Subpoena" from a federal grand jury for a certain case. The Act
allow investigations to go the FISA Court which requires a lower burden of proof than
criminal courts. It was not possible to use FISA Court Orders if, the primary purpose
59
Sec.215, The USAPA1RIOT Act,2001.
181
of the order was to gather foreign intelligence informations. The present Act has
changed the 'primary purpose' to 'significant purpose' making it fit for wider
application. The Act states "No person shall disclose to any other person (other than
those persons necessary to produce the tangible things under this section) that the FBI
has sought or obtained tangible things under this section."60 This means that if law Enforcement Authority have asked for records, the person or institutions to which the
request made may not reveal the request to anyone. This comprises co-workers, the
press, or the person whose records were sought. Assistant Attorney General Viet
Dinh on 201h May, 2003 testified before the House Committee on the Judiciary about
the USA-Patriot Act, 2001. He stated that we have made, in light of the recent public
information concerning visits to library, we have conducted an informal survey of the
field offices relating to the 'its visits to library'. Mr. Viet Dinh later classified his
testimony pointing out that the visits related to voluntary disclosure, not FISA court
_QJ;ders. But the Act uses the revised wording, "Upon an application made pursuant to
this section, the judge shall enter an ex parte order as requested or as modified
approving the release of records, if the judge finds that the application meets the
requirements of this section." 61 This wording indicates that the court must approve the
application. Even without this wording, the FISA court has approved almost all of
14,000 warrant applications requested right from 1978.62 The Act has allowed to
expand the use of 'trap and trace' and 'pen-register devices' from telephones to a
variety of digital communications including e-mail, web surfing, instant messaging
etc63 . But earlier it was not clear whether the rules applicable to telephone tapping and
also applied to Internet. Without the pen register statute, the government could
conduct 'envelop surveillance' without a court order. The government or even a
person could wiretap the Internet and collect any information if wished without
restriction. Applying the pen register laws to the Internet denied the government the
power to conduct envelop surveillance without a court order which limited
government power and blocked private entities from conducting prospective envelope
surveillance thus protecting privacy... This implies that the act requires a court order
where before it may not have been necessary. The act
60
61
62
63
Sec.215, The USA PA1RIOT Act,2001.
Sec.216, The USA PA1RIOT Act,2001.
The USA-PA1RIOT Act and You, Act/React. Available at
http://www.libraries. uta.edu/actreact/records.asp
Sec.216, The USA PA1RIOT Act,2001.
182
reveals that upon an
application made under section 3122 (a) (1), the court shall enter an ex parte order
authorizing the installation and use of 'pen register' or 'trap and trace device' any
where within the United States, if the court finds that the attorney for the government
has certified to the court that the information likely to be obtained by such installation
and use is relevant to an ongoing criminal investigation. 64 This means that the terms
"upon application made ... " has been interpreted to mean that the court cannot refuse
the application. Again, the government only has to 'certify' that the information is
'likely' to be relevant to an investigation.
Secondly, Financial Records and Money Transactions Records : The act
provides various actions under different situations to punish and charge with those
who assist or help any terrorist activities or their links helps to any unlawful activities.
This requires financial institutions to keep track of a personal financial transactions
and share such information with other law enforcement agencies. 65 Title- 3 of the
Patriot Act deals extensively with regard to financial transactions and money
laundering on terrorism which is not altogether a new provision. This is an act of US
Congress and is already in force beforehand in the forms of Money Laundering
Control Act,l986 and Bank Secrecy Act,1970. As a result of this, the International
Money Laundering and Abatement and Financial Anti- Terrorism Act, 2001 made as
a new weapon in the hands of the law enforcement mechanism to intercept and
obstruct any attempt of terrorism appropriately. The primary intention behind the act
is to prevent terrorists from financial freedom and money transactions. The Title-Ill of
the Patriot Act is so powerful that it could bring many changes and adjustment to the
aforesaid acts. It "amended the Bank Secrecy Act of 1970 (BSA), the fundamental US
statute aimed at deterring and detecting money laundering, terrorists financing and
other financial crimes"(Plotkin and Sanford 2006 : 671 ).
Important provision which are dealt with by the act are that terrorists and their
link organizations should in no way be in a position to get the banking facilities or
transactions and money laundering. They should not be in a position to use any
normal banking facilities available to customers of a bank. The idea was to keep
terrorists at bay from such facilities. Thus, the Patriot Act prohibits the banks to open
any account or allow any criminally recorded person to enter into a banking system.
However, its direction of "Know Your Customer" (KYC) provision between bank and
64
65
Sec.216, The USA PA1RIOT Act,2001.
Sec.351, and Sec.358, USA PA1RIOT Act,2001.
183
the customer has not been well received (Plotkin and Sanford 2006 : 672). Rules
relating to opening of accounts, sending and receiving of money, exchange of money,
money laundering, financial helps and other banking business must not be available to
terrorists. And if, a bank would not conform to such rules then, they will fall under the
act and necessary actions will be carried against the banks and financial institutions.
Title -3 is unique for various reasons. It has basically three different sub-titles, such as
Sub-title A deals with International Counter Money Laundering and Related
Measures, Sub-title B talks about Bank Secrecy Act Amendments and Related
Improvements, and Sub-title C covers Currency Crimes and Protections. The act is
applicable to both citizens and non-citizens as well and not only confined to the
U~
but the entire world comes under these clutches. However, it sounds very well to
make a law like this which can provide guaranteed peace and security to the populace.
Definitely, the law is meant for terrorists but those who are not terrorists in reality but
are more dreaded than even terrorists are also supposed to come under various clauses
of the act. All the mafias through out the world are indulged in either in one way or
the other with black business, black money, corruptions, smuggling, drugs peddling,
money transactions, and money launderings and so on. Can these anti social elements
who are far worse then terrorists be brought to book. Terrorist that we are talking
about kills instantly with a gun. But those who are indulged in prejudices and grudges
towards others are no less than terrorists. Terrorism as a matter of fact can come not
only in the form of explosion of bombs and mass killing at a party or market place,
they can also come in the forin of poisonous drinking water or pesticide essential
commodities of daily use by common people, so that they will not live for longer, or
contaminating regular food or making the people illiterate, poor and dependent for
ever, so that they will not be able to raise their voice against the system. The act has
been laudable .to some extent but implementing it in a global level will really be a
tough job. It is easy to questioning a bank at home with regard to a default dealing and
transaction but regulating financial transactions and money laundering at global level
may be very difficult on the part of the US. It is because, money is the root cause of
all evils. The US law enforcement authority has to face many challenges and odds
before seeing the result of the act.
184
The Federal Executive Orders and the Federal Government Actions:
These Orders are being issued since 9/11 and have been implemented to curb
any unlawful activities in the US. A number of civil liberties violations have taken
place since then which can be described in the following manner. The Patriot Act
permits wiretapping of conversations between federal prisoners and their lawyers,
66
which is not only a violation of right to privacy but also a violation of due process of
law clauses. The act eliminates Justice Department regulations against illegal
COINTELPRO- type operations by the FBI-Covert activities. That in the past targeted
domestic groups and individuals have been harassed. 67 The act establishes secret
military tribunals for terrorism suspects, including both citizens and non-citizens
which are definitely against the due process of law. 68 The act permits thousands of
men, mostly of Arab to have been held for many months in secret custody, most
without any charges filed against them, with publication of their identifies and
location, and without confidential access to counsel or meaning full access to the
federal courts. 69 The act limits the release of public documents and records in many
subject areas which have previously been available under the Freedom of Information
Act. 70 The provisions of the US Constitution apply in war time as well as in peace
time. And any attempt to violate such provisions would deviate them, under false
necessity or in any other pretext is subversive of good government. President Bush
has ordered military commission to be set up to try suspected terrorists who are not
citizens. They can be convicted on hearsay and secret evidence by only 2/3 vote.
71
American citizens suspected of terrorism are being held indefinitely in military
custody without being charged and without access to lawyers. Lastly, the press and
public have been barred from immigration court hearings of those detained after 9/11
and the courts are ordered to keep secret even that the hearings are taking place.
The New Provisions Granted in the Patriot Act:
The new provisions granted in the law can be discussed as below. In the first
place, as per new provisions, the Department of Defense is allowed to share
66
67
68
69
70
71
Department of Justice, Bureau of Prisons, 28 CFR 501.3, October 31, 2002.
Attorney General's Guidelines, May 30, 2002.
Military Order, Nov 13, 2001.
28 CFR 501.3, Oct 31, 2002.
Attorney General's Memorandum, Oct 12, 2001.
Military Order, Nov 13, 2001.
185
information with the Department of Justice during emergency situations that involve
"weapons of mass destruction". 72 This is definitely a violation of due process. The
President of United States is empowered to seize property belonging to foreign
nationals connected with terrorism. And if that seizure is based on classified evidence,
then the judge reviewing the case cannot share that evidence with the defense
attorneys. 73 The information collected by the police or presented to a Federal Grand
Jury to be shared by intelligence agencies. Such information sharing is limited to
evidence of terrorist activities. 74 As clauses (a) and (b) of section 203 doesn't (sunset)
expire. Wiretap is granted against an individual, instead of a particular phone. But
earlier, if a person had a cell phone or a home phone or an office phone then, the
government had to seek separate warrant on them. 75 But now it has changed, the
wiretap can be initiated against any one. The duration of a wiretap can be increased as
"permitted for on non-US citizens who are agents of a foreign power. 76 Sixth, the act
has increased the number of district court judges designated to hear applications for
and grant orders approving electronic surveillance from 7 to 11.77 The act permits the
seizure of voice-mail message under a warrant. 78 The FBI agents can conduct a
search of a business or a place without notifying the owner that the search has been
conducted until later. The agents still, need a warrant and only a Federal District
Court judge can issue this type of warrant. Further, this type of warrant may only be
issued if, notified the owner of the search would result in 'adverse consequences' .79
As Sec. 213 doesn't (sunset) expire.
The law enforcement in ordinary criminal cases to get a Warrant to track which
websites a person visits and collect general information about the e-mails a person
sends and receives. Law enforcement doesn't have to prove the need; the judge only
has to determine that law enforcement has 'certified' that this relates to an ongoing
investigation. In other words, the judge cannot ·reject to the warrant if law
enforcement 'certifies' that the warrant was meant to apply to those unnamed
72
73
74
75
76
n
78
79
Sec.l04, The USA PA1RIOT Act,2001.
Sec.l06, The USA PA1RIOT Act,2001.
Sec.203, The USA PA1RIOT Act,2001.
Sec.206, The USA PA1RIOT Act,2001.
Sec.207, The USA PA1RIOT Act,2001.
Sec.208, The USA PA1RIOT Act,2001.
Sec.209, The USA PATRIOT Act, 2001.
Sec.213, The USA PATRIOT Act, 2001.
186
people. 80 As section 216 doesn't (sunset) expire. The government is empowered to
intercept the electronic communication of a computer trespasser, i.e., hacker, without
a court order in certain circumstances, if the owner of the hacked computer
consents. 81
The act has not only altered the established rule of law in relation to tracking
immigration violation, surveillance and the process of interrogation but it has changed
the Border Petrol and Custom Service System to triples the number of Border Patrol,
Customs Service, and INS Personal stationed along the US borders. 82 The definition
of a terrorist for the purpose of the act is expanded. To sum up the section: Before
passage, only members of the groups designated as terrorist organizations by the State
Department could be denied entry to or deported from the US. The law extends those
actions to any foreigner who publicly endorses terrorist activity, belongs to a group
that does, or provides support to a group that does. The definition of "terrorist
activity" is extended to include any foreigner who uses 'dangerous devices' or raises
money for a terrorist group, if that person knows or reasonably should have known
that the group is engaged in terrorism. 83 The act extends the power of attorney
general to detain aliens. The attorney general can order the detention of any alien if he
certifies that has reasonable grounds to believe, or involvement in terrorism or activity
that poses a danger to national security. He does not need to explain his reasoning or
show evidence. 84 Criminal or immigration violation charges have to be brought
against such people within seven days, but they can be held indefinitely. However,
they retain their right to petition the US Supreme Court, the US Court of Appeals for
the District of Columbia, or any district court with jurisdiction to entertain a "habeas
corpus". The act directs the Attorney General to implement fully and expand the
foreign student monitoring program to include other approved educational institutions
like air flight, language training, or vocational schools. 85 The act, requires DNA
samples of convicted terrorists to be collected and add to DNA database of violent
convicts. 86 The act, expands the definition of the material, support to foreign terrorist
80
81
82
83
84
85
86
Sec.216, The USA PA1RIOT Act,2001.
Sec.217, The USA PA1RIOT Act, 2001.
Sec.402, The USA PA1RIOT Act,2001.
Sec.411, TheUSAPA1RIOT Act,2001.
Sec.412, The USA PA1RIOT Act,2001.
Sec.416, The USA PA1RIOT Act,2001.
Sec.503, The USA PA1RIOT Act,2001.
187
organizations to include "expert advice and assistance". 87 According to an article in
Reason Magazine, this section has been cited by Assistant US Attorney Christopher
Morvillo and Assistant US Attorney Rabin Baker as grounds for prosecuting a US
Lawyer who defends a terror suspect. Critics suggest that this amounts to state
intimidation of defense counsel and likely to undermine the constitutionally protected
due process right to counsel. The act allows wiretaps for suspected violations of the
Commuter Fraud and Abuse Act, including anyone suspected of exceeding the
"authority of commuter" used in inter-state commerce, causing over $5,000 worth of
combined damage. 88
Other Important Provisions in the Patriot Act:
The act has followed other stricter new provisions as well. They can be
described as in the following heads. As per new Department of Justice guidelines, the
FBI is empowered to monitor religious and political groups without specific evidence
of wrong doing i.e., without 'probable cause' in the name of national security. The
Operations TIPS (Terrorist Information and Prevention System) which was discussed
but failed to pass in the Congress, the credit, of course, goes to then, House Majority
leader Dick Armey. If the move would have been successful, then, it would have
encouraged the civilian surveillance of private persons. It was claimed by the critics
that "Operation TIPS" was designed to circumvent the due process of law limitations
and restrictions ordinarily imposed on the police. Another effort in this direction was
Pentagon's 'Total Information Awareness" data mining programme, which in fact,
would examine a variety of public and private database to search for evidence of
terrorist
group activity. And if this effort would not have been stopped by the
congress then, it would have made the provisions of the act easier for law
enforcement agencies to gain access to various kinds of personal records such as
schools, libraries, bookstores, doctors and employers. The expanded power of the
police to track, monitor and question individuals has become a matter of concern. The
plan to take fingerprint of the Arabs and Muslims and track them electronically has
been started by the Department of Justice. Tom Head in his Civil Liberties blog writes
about profiling a particular group of ethnic people and the consequences relating to it.
He writes that this case illustrates the danger and the foolishness of profiling because
87
88
Sec.805, Clause (a)(2), The USA PA1RIOT Act,2001.
Sec.814, The USA PA1RIOT Act,2001.
188
people's conception of what a potential terrorist looks like often does not match
reality... The terrorists understand that the more they vary the kind of operative they
use, the more likely they are going to be able to exploit prejudices if we allow those
prejudices to guide the way we conduct our investigation. Racial/ ethnic profiling is
not only problematic from a civil rights standpoint, but frankly I think it winds up not
being terribly effective (Head 2010 : 1). This implies that racial profiling is not
always a solid tool to detect the culprit. It very often mises the target and get wasted
in unwanted and suspected cases. The Department of Homeland Security which is a
creation of the act has plans such as to "standardize State drivers" licenses is nothing
but a plan to create a 'national identity card'.
The 'probable cause' was an important ground to grant search warrants and
wiretaps in cases involving national security but now they can be granted even
without probable cause and lower standard of proof. As per the new provisions the
geographical coverage of search warrants granted on national security issues is
expanded, making them as effectively as national warrants. They are not limited to the
jurisdiction of the court where they are issued. The wiretap orders are more flexible
now, allowing the multiple telephones and cellular phones to be covered under a
single judicial authorization. The new 'sneak and peek' searches for national security
cases, in which the suspect remain unaware that a search is going on him, needs a
lower burden of proof even than, searches that are undertaken in the case of an
ordinary criminal investigation. As part of expanded police power, the act authorizes
the FBI and CIA to cooperate and share information more closely, bringing together
the work of intelligence and law enforcement agencies which was debarred and
separated in the past to give way to civil liberties. The act also has integrated the
police effort in its fight against terrorism. The Department of Home and Security is
asked by the act to gather important informations from the national law enforcement
agencies and again these informations would have to be shared by the local law
enforcement. The Posse Comitatus Act, 1878 prohibits the use of military for any
domestic purposes (certain domestic police functions) (Wechsler 2002 : 18). But as
per new provisions of the act, military forces can be used to aid and assist the civilian
law enforcement agencies in their fight against terror. The Department of Home and
Security is assessing the possibility of use of military in this respect. It has been
argued in the circle that the Bush Administration and its legacy may be followed by
present President Barrack Obama. President Obama is likely to follow many of the
189
recommendations. And it is note worthy that surprisingly few of the actions would
require new laws to be written or , for that matter, any consultation with congress.
Obama could fulfill many of the wishes simply by issuing executive orders and
directives, or by instructing executive branch agencies to draft new rules ( Bettelheim
2009 : 20). The unexpected incident of 9/11 has helped the President Bush to control
the entire executive singly and unilaterally. " During the past eight years President
Bush has asserted presidential power in a singular fashion, drawing on the concept of
a unitary executive" (Bettelheim 2009 : 20). Even though the constitution strictly
prohibits the presidency to go beyond the demarcated lines of power but Bush
administration has exploited the situation and extended his gamut of power. It has
been claimed that during his eight years of tenure as the president of the United
States, George Bush has signed as many as 298 Executive Orders so far. But president
Barrack Obama is no less in this direction. On date Dec 29, 2009, Obama too, took it
for granted that an Executive Order was indispensable for declaring the power of US
president. He signed the Executive Order concerning classified National Security
Information to make national security a common phenomenon. As per the Executive
Order, a uniform system of classifying and safeguarding of national security
information will take place. The objective behind such an Order was to provide the
US citizens with information relating to national security and various activities of the
administration in this connections. This is, in other words, a right to information
which is a basic right of the citizens of the US in the constitution. By this order
citizens are allowed to free sharing and exchange of information between them and
the administration without any hesitation and liability. The Executive Order at the
same time, also made it mandatory for the government, officials, and the citizens that
certain information relating to national defence, foreign policy, and homeland security
etc can not be disclosed to unauthorized persons. This means that the administration
will keep certain information in secret file which can not be disclose to any ordinary
persons as is the case with America for maintaining a tradition of secrecy. In order to
protect the so-called national security, president Bush would never leave any stone
untumed to establish military tribunals and order for unwarranted arrest.
However, now as the dead line of
deciding on the fate of detainees at
Guantanamo Bay is nearing and the administration is down playing and seems
reluctant. One can easily guess that the desired task of replacing them to else where
would not be possible. Neither the demand of allowing them to be tried at civilian
190
courts can be possible. As even though Obama administration has declared its
willingness to free these detainees but President Obama did not make it clear, how to
go about it. It has been said that the road to free them is not at all clear. There are
serious political and legal problems such as if the administration is sending them to
any other countries, then, the problem would arise how to start a proceeding against
them. Most of them have been "held for more than six years" (Perine 2009 : 168).
Another important problem is that "what to do with potentially dangerous detainees
whom officials determine cannot be tried and whom other countries refuse to
take"(Pirine 2009: 168).
Government Secrecy:
While, democracy believes m openness and an all comprehensiveness but
these are constrained by national security interest of American state. It loves to
maintain all secrecy. The act which has been described by many to be a most stringent
and draconian piece of legislation, was legislated without much debate and passed in a
haste under fast-track. What to talk about non-citizens, even citizens of the US have
not gone through it and it was passed. The provisions of extraordinary detention and
military tribunals are not only the provisions in which security clashes with liberty but
in intensification of internal government secrecy in surveillance, wiretapping,
investigation of private records ... is also unleashing the debate between security and
liberty. The immigration and naturalization service has asked by the administration to
maintain secret any deportation hearings pertaining to the act. The Attorney General
has made every possible effort to resist Freedom of Information Act when ever sought
by citizens and non citizens as well. The height of secrecy that was maintained with
regard to those who were detained as part of 'war on terrorism' and investigations was
definitely stood against the free and fair enjoyment of civil liberties. The government
secrecy that was followed after the terrorist attacks of 9111 in surveillances and
investigations of the culprits has been awesome. The act has been secret and stringent
in many ways.
191