Judicial review required

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Federal courts have occasionally erred in handcuffing congressional or executive initiatives to defeat global terrorism since September 11 -- for example, endowing illegal combatants captured in Afghanistan, indistinguishable from Nazi soldiers taken prisoner during the Battle of the Bulge, with a right to challenge the constitutionality of their detentions in federal courts.

But Congress, the president and local authorities have been equally if not more guilty of gratuitously compromising civil liberties and of slipshod counterterrorism legislation. Judicial review, with all its wartime deficiencies, should remain undisturbed to prevent national self-preservation from degenerating into promiscuous lacerations of cherished individual freedoms. Two recent court decisions are convincing.

The U.S. District Court for the Southern District of New York held unconstitutional a wretchedly drafted provision of the Patriot Act, Section 2709 of the federal criminal code, in Doe vs. Ashcroft (Sept. 28, 2004). The section empowers the Federal Bureau of Investigation to issue national security letters (NSLs) to compel communications companies, such as Internet service providers or telephone companies, to produce customer records. The FBI must certify that the records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." In other pivotal respects, however, Section 2709 is inexcusably cryptic, mute or wildly overbroad.

No sanction is prescribed for ignoring an NSL. No provision is made for their judicial enforcement at the behest of the FBI. The recipient is not authorized to seek a judicial determination of whether an NSL satisfies statutory or constitutional standards. Section 2907 perpetually bars every communications company that receives an NSL from ever disclosing that fact to anyone, for instance, to an attorney whose assistance would be indispensable to compliance or to a court in filing a lawsuit attacking the lawfulness of the NSLs.

The court in Doe could not dismiss these deformities as the offspring of legislative hastiness. Companion national security laws address with clarity the issues about which Section 2709 is either silent or absurdly draconian. For instance, two other NSL statutes explicitly authorize a recipient to reveal the government's inquiry to persons whose assistance is necessary for compliance. And Section 2709 is virtually unique in demanding perpetual secrecy of NSLs irrespective of whether disclosure could arguably endanger national security.

Congress itself has belatedly recognized the statute's glaring infirmities. Several remedial bills are pending, including S. 2555, which would authorize consultation with an attorney by an NSL recipient, judicial enforcement of NSL administrative subpoenas and judicial review to modify the nondisclosure requirement.

The Bush administration, which customarily decries "legislating from the bench," pleaded with District Judge Victor Marrero to edit and to insert language in Section 2709 to cure its facial constitutional shortcomings and to obviate the bother of corrective legislation. That plea flouted the repeated teaching of Supreme Court Justice Antonin Scalia that the actual text of a statute governs its interpretation, not conjectures from silences or extrapolations from penumbras and emanations. Judge Marrero properly bowed to Justice Scalia in lieu of President Bush's flip-flop, and held Section 2709 as written and applied violated the Fourth Amendment's prohibition of unreasonable searches and the First Amendment's protection of free speech and association.

The city of Columbus, Ga., wildly inflated the post-September 11 terrorism threat to curtail peaceful protest in Bourgeois vs. Peters (Oct. 15, 2004). An organization called School of the Americas Watch (SAW) annually denounces the training of military leaders throughout the Western Hemisphere by the United States at the School of the Americas (SOA). Characteristically attracting 15,000, the demonstrations occur on property open to the public adjacent to Fort Benning. Throughout the 13-year history of SAW's pilgrimages to the SOA, no weapon was ever discovered or an arrest made for violence there.

In November 2002, the city inaugurated a policy requiring all protest participants to submit to a metal detector search at a checkpoint blocks away from Fort Benning about two hours in advance of the event. The city was alarmed over the Department of Homeland Security's (DHS) "yellow alert" and was additionally worried about frenzied dancing and the use of trash as construction material for an unsightly "global village."

The U.S. 11th Circuit Court of Appeals held the checkpoint flagrantly unconstitutional. The city was clueless about the likelihood of weapons or violence by SAW, and experience was reassuring on both counts. The Fourth Amendment prohibits unreasonable searches, with no exceptions for citizens exercising their First Amendment right to assemble peacefully to protest alleged grievances. Dragnet searches for the sake of searching are never reasonable in a nation that treasures personal liberty and privacy as much as order and security. The DHS' threat assessment did not excuse shriveling individual liberties. The court cogently sermonized: "Given that we have been on 'yellow alert' for over 21/2 years now, we cannot consider this a particularly exceptional condition that warrants curtailment of constitutional rights. We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over."

The celebration of judicial review, warts and all, to thwart thoughtless assertions of power by the legislature or executive is as old as the Constitution itself. Thus, James Madison, architect of the separation of powers, amplified with regard to the Bill of Rights: "Independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative and executive." More than two centuries later, Chief Justice William H. Rehnquist and Associate Justice Ruth Bader Ginsburg have both confirmed Madison's prophecy that judicial review would prove a bright jewel in the nation's constitutional crown.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.