SUMMARY OF RECENT COURT RULINGS ON TERRORISM-RELATED MATTERS HAVING CIVIL LIBERTIES IMPLICATIONS1 Nancy Chang, Center for Constitutional Rights (New York City) and Alan Kabat, Bernabei & Katz, PLLC (Washington, D.C.) March 8, 2004 Introduction . . . . . . . . . . 2 I. The Detention of Non-Citizens of Special Interest to the Government’s Terrorism Investigation Based on Immigration Charges . . . 3 A. The Blanket Closure of Immigration Hearings to the Press and Public 3 B. Freedom of Information Act Requests for Information on Non-Citizens Detained by the INS Following the September 11, 2001 Terrorist Attacks 4 C. Civil Rights Lawsuits Brought by INS Detainees Seeking Damages and Other Relief . . . . . . . . 5 II. The Detention of Material Witnesses for Grand Juries . . . 8 III. The Military Detention of Enemy Combatants and Foreign Nationals . 9 1 Nancy Chang and the Center for Constitutional Rights are counsel of record in a number of cases described in this paper, including North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert. denied, 123 S. Ct. 2215 (2003), Humanitarian Law Project, et al., v. Ashcroft, et al., 352 F.3d 382 (9th Cir. 2003) (“Humanitarian Law Project I”), Humanitarian Law Project, et al. v. Ashcroft, et al., 2004 U.S. Dist. LEXIS 926 (C.D. Cal. Jan. 23, 2004) (“Humanitarian Law Project II”), Haddad v. Ashcroft, 221 F. Supp. 2d 799 (E.D. Mich. 2002), and Turkmen, et al., v. Ashcroft, et al., No. 02 CV 2307 (JG) (E.D.N.Y.). In addition, Nancy and the Center have submitted amicus briefs in support of several individuals whose cases are described in this paper, including Jose Padilla, Lynne Stewart, and John Walker Lindh. Alan Kabat and Bernabei & Katz, PLLC, are counsel of record in Burnett, et al. v. Al Baraka Investment and Development Corporation, et al., 274 F. Supp. 2d 86 (D.D.C. 2003), and 32 County Sovereignty Committee v. Department of State, 292 F.3d 797 (D.C. Cir. 2002). Preliminary versions of this paper were presented at the July 26, 2003 and January 23, 2004 meetings of the National Coalition to Protect Political Freedom (NCPPF) in Washington, D.C. The authors express their appreciation to the NCPPF and its President, Kit Gage, for hosting these presentations. Copyright Nancy Chang (Center for Constitutional Rights) and Alan Kabat (Bernabei & Katz, PLLC), 2003-20042 A. The Detention of American Citizens Designated as Enemy Combatants 9 B. The Detention of Foreign Nationals at the Guantanamo Bay Naval Base and Other Overseas Locations . . . . . 12 IV. Sixth Amendment Rights of Criminal Defendants Charged with Terrorist Crimes 14 V. The Crime of Providing Material Support to Proscribed Organizations . 17 A. The Designation of Groups as “Foreign Terrorist Organizations” . 17 B. Criminal Prosecutions for Material Support . . . . 19 C. Civil Damage Lawsuits Brought by Victims of Terrorism . . 29 VI. Affirmative Challenges to USA Patriot Act Provisions . . . 32 VII. Decisions of the Foreign Intelligence Surveillance Courts . . . 34 VIII. Freezing the Assets of Charities Alleged to Have Supported Terrorism . 36 IX. Secrecy in the Courts . . . . . . . . 37 X. Government Interference with Public Protest . . . . . 38 Introduction In the eleven years since the 1993 bombing of the World Trade Center in New York City, criminal prosecutions, civil lawsuits, habeas petitions, and other legal proceedings involving persons and groups alleged to have engaged in or supported terrorism have proliferated. The number of such proceedings has escalated sharply with the September 11, 2001 terrorist attacks on the United States and the subsequent enactment of the USA Patriot Act and introduction of executive anti-terrorism measures, and this trend has continued unabated to the present. Unfortunately, information documenting these legal developments is scattered about in case reporters, newspapers, and journals, and it has been difficult for the general public – and even lawyers – to obtain an overview of this rapidly evolving body of law. In order to assist interested members of the public, press, and the bar, we provide this compilation and analysis of recent court rulings on terrorism-related matters. In times of national crisis, the executive branch and Congress traditionally implement measures in the name of security that expand the power of the government and contract the civil liberties of citizens – and, to a far greater degree, non-citizens. While the courts have traditionally served as a check on abuses of power by the political branches, they also have a strong tradition of deferring to the political branches on matters of national security. The period following the September 11, 2001 attacks has proven no exception to these general rules. One trend that we identify in this paper is an increased willingness on the part of the government to resort to what may be pretextual grounds for detaining those whom it wishes to investigate for terrorist ties but for whom it lacks the probable cause required under the Fourth Amendment to3 hold in criminal detention. Another trend we identify is an increase in prosecutions that appear to impose guilt on the basis of political and religious associations with individuals and groups suspected of terrorism. As the cases discussed below illustrate, the federal courts have divided between those that have scrutinized, and found wanting, the government’s rationale for actions that curtail our freedoms, and those that have accepted the rationales presented by the government at face value. At present, the U.S. Supreme Court has not issued any substantive decisions on the lawsuits discussed in this paper. On November 10, 2003, however, the Supreme Court agreed to review consolidated cases (Rasul and Al-Odah) that present the issue of whether the federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated by the United States military in Guantanamo Bay, Cuba. And on January 9, 2004, the Supreme Court agreed to review the case (Hamdi) of a U.S. citizen who was designated by the President as an enemy combatant in 2002 and who has been held in incommunicado