Miami Herald

9/11/03

Scorecard for challenges to new homeland security powers

Center for National Security Studies v. Department of Justice

* Issue: Does the Freedom of Information Act prohibit the Justice
Department from concealing the names of the roughly 750 people it
detained in post-Sept. 11 sweeps?

* Result: A district court judge ordered the government to release
the names of detainees and their attorneys. The District of Columbia
Circuit Court of Appeals reversed that decision and dismissed the case.

Detroit Free Press v. Ashcroft and North Jersey Media Group v.
Ashcroft

* Issue: Do the First and Fifth Amendments prevent Justice from
enacting a blanket secrecy policy barring the public and the press from
all post-Sept. 11 detainee immigration hearings?

* Results: In the Detroit case, a judge granted an injunction against
the policy. The Sixth Circuit voted 3-0 to affirm -- a rare defeat for
the government. In the New Jersey case, a judge also rejected the
policy. But the Third Circuit reversed in favor of the government.

Padilla v. Bush, Hamdi v. Rumsfeld, et al.

* Issue: Under what circumstances may the president designate someone
on U.S. soil an ''enemy combatant'' and indefinitely detain him without
charges or access to a lawyer?

* Results: The case of Jose Padilla, a U.S. citizen arrested in
Chicago and accused of a plotting a dirty bomb attack, was split: a
judge agreed with the government that it must make only ''some showing
of evidence'' to designate someone an enemy combatant, rather than a
higher standard of proof.

But he also ruled against the government in finding that Padilla should
be allowed to meet with a lawyer to challenge that status. A Second
Circuit appeal is pending.

In the case of Yaser Hamdi, a U.S. citizen detained in Afghanistan, a
judge ordered the government to produce additional evidence to support
the enemy combatant status beyond the mere fact that Hamdi was picked up
on the battlefield. The Fourth Circuit reversed, finding that this was
enough.

Ali Saleh Kahlah Al-Marri, a Qatari citizen arrested in Illinois and
accused of helping al-Qaeda operatives settle in the U.S., was initially
charged in federal court but later named an enemy combatant and cut off
from his lawyer.

Other high-profile cases stayed in the federal court system. John
Walker Lindh, a U.S. citizen detained in Afghanistan, pled guilty to
serving the Taliban and received 20 years. Richard Reid, a British
citizen arrested after he tried to ignite a shoe bomb on a flight from
Paris to Miami, was sentenced to life without parole.

Zacarias Moussaoui, a French citizen accused of being the ''20th
hijacker,'' has also been prosecuted in federal court. His case is now
on hold while the government appeals a judge's order that he be allowed
to interview members of al--Qaeda in U.S. custody whom he says can
exonerate him from involvement in the plot.

Coalition of Clergy v. Bush, Rasul v. Bush, and Al Odah v. Bush

* Issue: May non-U.S. citizens being indefinitely held by the U.S.
military as ''enemy combatants'' -- without charges or Geneva Convention
status -- on Guantánamo Bay Naval Base challenge their detention in
federal court?

* Results: A judge dismissed the Coalition of Clergy case and the
Ninth Circuit agreed, because the activists were not the plaintiffs'
next-of-kin and so did not have standing to sue on their behalf. In
Rasul and Al Odah, filed by the families of Australian, British, and
Kuwaiti detainees, both district judges dismissed both cases solely on
the jurisdictional grounds. The D.C. Circuit Court agreed.

In Re Awadallah, et al.

* Issue: One of the tools Justice has used most frequently since
Sept. 11 has been indefinitely holding people without charges --
sometimes for months -- as ''material witnesses'' to its anti-terrorism
investigations. Since that 1984 statute was written for trial witnesses
deemed likely to flee, has the government stretched it too far and
exceeded its authority?

* Results: In Awadallah, a judge found the government had abused the
statute. But in the second case, a judge came to the opposite
conclusion. Both cases arose in the same district under the Second
Circuit, which has yet to resolve the split.

Muslim Community Association of Ann Arbor v. Ashcroft

* Issue: The USA Patriot Act allows government agents to obtain an
order to secretly enter a home or business and remove documents, without
telling the owner, if they say the search is part of an intelligence or
terrorism investigation. Does this violate the constitutional right to
privacy and due process?

* Result: The case has not yet been heard.

In re Foreign Intelligence Surveillance Court

* Issue: The USA Patriot Act removed a longstanding wall that kept
information obtained from national security search and wiretap warrants,
which are easier to obtain than criminal activity warrants, from being
used in criminal prosecutions. Does this violate the Fourth Amendment's
protection against of unreasonable search and seizure?

* Results: The Foreign Intelligence Surveillance Court found this
change unconstitutional and pointed to at least 75 prior examples where
the FBI lied about evidence to obtain FISA warrant. But a review court
reversed that decision. Information gathered from such warrants have now
been used in prosecutions including Tampa professor Sami al-Arian and
alleged terrorist cells in Buffalo, N.Y., and Portland, Ore.

Holy Land Foundation v. Ashcroft, Benevolence International Foundation v. Ashcroft, et al.

* Issue: The USA Patriot Act expanded the government's power to
freeze the assets of groups it suspects are funding terrorists by
allowing it to do so prior to its investigation and allowing secret
evidence to be used. Is this constitutional?

* Results: These and other charities have unsuccessfully challenged
the government's designation of them as terrorist organizations. The
Holy Land Foundation's request for an injunction was denied by the D.C.
Circuit Court, which concluded that ``blocking orders are an important
component of U.S. foreign policy, and the president's choice of this
tool to combat terrorism is entitled to particular deference.''