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National Legislation and Orders__________________

Homeland Security Act of 2002 establishes the Department of Homeland Security . Its purpose is to prevent and respond to terrorism, and coordinate the work of various federal agencies. It supersedes the INS through the creation of the Bureau of Citizenship and Immigration Services and the Bureau of Border Security. For more details, see Department of Homeland Security Reorganization Plan 2002 and Department of Homeland Security Regulations (CFR).

Foreign Intelligence Surveillance Act (FISA) prescribes procedures for authorizing electronic surveillance for foreign intelligence purposes. Applications for electronic surveillance and physical searches under the Act are prepared and filed by the Office of Intelligence Policy and Review, and reviewed by the Foreign Intelligence Surveillance Court (FISC). There is a special court of appeals to review FISC decisions.

 

National Litigation_____________________________

Post-September 11 Detainees—Material Witnesses

Post-September 11 Detainees—Class Action

Post-September 11 Detainees—Freedom of Information Act Request

 

National Current Developments__________________

New York Legislation and Orders_________________

 

New York Court Decisions______________________

  • Handschu v. Special Services Division , New York Law Journal, March 18, 2003 (SDNY) (Approval given to NYPD Guidelines)
  • Handschu v. Special Services Division , New York Law Journal, February 19, 2003 (SDNY) (Approval given for modification of Handschu Guidelines governing NYPD surveillance of political activity)
  • People v. Nye, New York Law Journal, November 13, 2002 (Westchester City Ct) ("[T]his case presents the novel issue of whether heightened awareness and concern about terrorist activity after September 11, 2001 changes the scope or nature of the exceptions that permit warrantless searches of automobiles. With respect to the facts and circumstances of this case, the Court finds that it does not.")
  • People v. Haneiph, New York Law Journal (NYC Criminal Court July 2, 2002) (Executive Orders suspending speedy trial post-9-11 are constitutional.)
  • People v. Pena, New York Law Journal (NYC Criminal Court. April 29, 2002) (prosecution delay in obtaining DD5 reports did not fall under exceptional circumstances provision for post-9-11 period)
  • People v. Upshaw, New York Law Journal (NYC Criminal Court March 29, 2002) (inciting to riot charge based on public statements praising WTC attack was sufficient and not protected speech under the 1st Amendment)
  • People v. Santana, New York Law Journal (Manhattan Supreme Court March 25, 2002) (time excluded under Executive Orders suspending speedy trial)
  • United States v. Osama Awadallah (SDNY November 29, 2001). Material witness in 9-11 investigation released on bail.
  • People v. Bennett (Westchester County Court October 18, 2001). Court dismissed indictment for violation of CPL ยง 190.50 and gave prosecution 45 days to represent case to grand jury in view of the " current strain on the law enforcement community due to the terrorist attack on the World Trade Center."
  • United States v. Correa (SDNY October 3, 2001). Post-WorldTradeCenter continuances excluded from federal Speedy Trial.
  • People v. Aquino, 2001 NY 069044 (NYC Criminal Court September 28, 2001). Executive Order suspending state speedy trial did not apply to release pending trial.

 

New York Current Developments_________________
Note: Copies of articles with inactive links may be found by visiting the publisher's web sites or retrieving copy from a print source. For more information please read our FAQ. 

Special Reports

TAKING LIBERTIES
Since September 11th, the Justice Department has implemented new policies to fight the War on Terror at home. These measures have curtailed civil liberties according to a series of articles by Newsday.

SEPTEMBER 11 JUSTICE
The Individual Rights and Responsibilities section of the American Bar Association published a special issue of its journal, Human Rights, to analyze the implications of post-9-11 legislation on civil liberties.

MONITORING ATTORNEY-CLIENT CONTACT
The Department of Justice indicted Lynne Stewart for conspiring to aid in terrorist activity in connection with her representation of Omar Abdel Rahman. See United States v. Lynne Stewart , No. 02-395 (SDNY 2002). The government monitored her conversations with Rahman and claimed that she facilitated communication with terrorists on the outside. This case has sparked a storm of debate about government intrusion into the attorney-client relationship and the treatment of defense attorneys representing unpopular clients. For more information about the Stewart case visit, Justice for Lynne Stewart. 

 

Reports

Jose Padilla "Enemy Combatant" Case Resource Center (Wiggin and Dana 2004). This site contains a collection of information and court documents filed in Rumsfeld v. Padilla concerning the President's power to unilaterally detain a US citizen without formal charges or permitting access to a lawyer. It includes links to briefs and motions filed in the Second Circuit and now pending before the US Supreme Court. The site is maintained by the law firm representing Mr. Padilla, Wiggin and Dana .
 

Indefinite Detention of Enemy Combatants (ABCNY 2004). This report examines the current cases concerning due process and the treatment of enemy combatants in the courts. It then discusses the appropriate balance to be struck between national security and civil liberties. The report was prepared by the Association of the Bar of the City of New York Committee on Federal Courts.

Conduct Unbecoming: Pitfalls in the President's Military Commissions (ACLU 2004). This report examines the problems with due process in the Military Commissions administered by the Department of Defense to try enemy combatants. The report was prepared by the American Civil Liberties Union.

Report to Congress on Implementation of Section 1001 of the USA Patriot Act (OIG 2004). The Office of Inspector General prepared a report describing the results of its mandate to "review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice" under the USA Patriot Act.

Supplemental Report on September 11 Detainees' Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (OIG 2003). This report describes results of an investigation by the US Department of Justice, Office of the Inspector General into allegations of physical and verbal abuse of post-9-11 detainees at the BrooklynDetentionCenter operated by the US Bureau of Prisons. It supplements an earlier report prepared on the treatment of 9-11 detainees.

Criminal Terrorism Enforcement Since the 9/11/01 Attacks (TRAC 2003). This report concerns the outcomes of prosecutions for terrorism-related acts since 9/11. It describes trends in federal prosecution and sentencing, domestic and international terrorism cases, effectiveness of law enforcement, involvement of other agencies and regional variations in prosecutions. This study was based on data obtained from the US Department of Justice by the Transactional Records Access Clearinghouse (TRAC).

Unpatriotic Acts: The FBI's Power to Rifle Through Your Records and Personal Belongings Without Telling You (ACLU 2003). This report analyzes the implications of Section 215 of the USA Patriot Act expanding the FBI's surveillance powers. It describes the encumbrance on civil liberties created by the law and concludes that Section 215 is unconstitutional.

Independence Day 2003: Main Street America Fights the Federal Government's Insatiable Appetite for New Powers in the Post 9/11 Era (ACLU 2003). This report describes the development of resolutions enacted by local communities opposing the USA Patriot Act and the government curtailment of liberties since September 11th.

Seeking Truth From Justice: PATRIOT Propaganda—The Justice Department's Campaign to Mislead the Public About the USA PATRIOT Act (ACLU 2003). This report describes allegations of inaccurate and misleading statements made by government officials concerning the scope and effect of the USA Patriot Act.

America's Challenge: Domestic Security, Civil Liberties, and National Unity After September 11 (Migration Policy Institute 2003). This report describes the impact of changes in US immigration policy since 9-11 and provides recommendations on incorporating immigration law and policy into national strategies concerning terrorism while preserving the rule of law.

September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection With the Investigation of the September 11 Attacks (OIG 2003). This report describes the treatment of aliens detained on immigration charges by the Department of Justice in connection with the investigation of the September 11, 2001 terrorist attacks. The areas examined were arrest, charging and assignment to detention facility, processing, bond decisions, timing of removal from the United States or release from custody, access to counsel, and conditions of confinement. The majority of detainees were held at the Federal Bureau of Prisons' MetropolitanDetentionCenter in Brooklyn, New York, and at the Passaic County Jail in Paterson,New Jersey.
 

EFF Analysis of "Patriot II," Provisions of the Domestic Security Enhancement Act of 2003 That Impact the Internet and Surveillance (2003). The Electronic Frontier Foundation (EFF) prepared an analysis of the proposed Domestic Security Enhancement Act of 2003 or Patriot II. The proposed legislation includes permanent expansions of the government's information gathering powers. The EFF analysis examined every section of the January 9, 2003 draft.

Imbalance of Powers: How Changes to US Law and Policy Since 9/11 Erode Human Rights and Civil Liberties (LCHR 2003). The Lawyers Committee for Human Rights prepared a report describing the impact of government policies and actions since 9-11 on human rights and civil liberties. It concentrates on four areas: (1) Open Government; (2) Right to Privacy; (3) Treatment of Immigrants, Refugees and Minorities; and (4) Security Detainees and the Criminal Justice System. The last chapter concerns the impact of US policies on human rights internationally.

Better Management Oversight and Internal Controls Needed to Ensure Accuracy of Terrorism-Related Statistics (GAO 2003). The US General Accounting Office prepared this report concerning its evaluation of the Department of Justice's (DOJ) investigation and prosecution of terrorist acts. It reviewed the accuracy of DOJ conviction rates and offered recommendations for improvements.

Treatment of Enemy Combatants (ABA 2003). This report was prepared by the Task Force on Treatment of Enemy Combatants, Criminal Justice Section and Section of Individual Rights and Responsibilities of the American Bar Association . It supports "meaningful judicial review" and access to counsel for detainees held as enemy combatants by the United States.

Criminal Enforcement Against Terrorists and Spies in the Year After the 9/11 Attacks (TRAC 2003). This report prepared by the Transactional Records Access Clearinghouse (TRAC) highlights the sharp increase in federal prosecutions of crimes involving terrorism or internal security violations. The statistics also show a decline in prison sentences meted out for convictions in this area. For more information, visit TRAC Spotlight on Terrorism

"We Are Not the Enemy": Hate Crimes Against Arabs, Muslims, and Those Perceived to be Arab or Muslim after September 11 (HRW 2002). Human Rights Watch prepared this report to reveal the impact of hate crimes committed in the aftermath of 9-11. It focuses on government efforts to prevent and respond to hate crimes, and to protect the victims. Research from practices implemented in six cities formed the basis for the report. Reponses were examined in terms of police deployment, prosecutions, bias crime monitoring, and outreach to affected communities.

Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees (HRW 2002). Human Rights Watch prepared a report concerning violations and abuses of the law since 9-11. It reviews Justice Department actions such as arbitrary arrests and detentions, secret proceedings, denial of access to counsel, violation of consular rights and conditions of confinement. The report was based on interviews with detainees and their attorneys. It concludes with recommendations for immediate changes and reforms to comply with due process.

Year of Loss: Reexamining Civil Liberties Since September 11 (LCHR 2002). The Lawyers Committee for Human Rights prepared a report questioning the continuing need for government measures implemented in response to 9-11. They proposed a critical reexamination of these measures and focused on questions concerning the continued reliance on post-9-11 rules.

Criminal Enforcement Against Terrorists (TRAC Supp. 2002). This is a supplement to earlier reports, December 2001 and June 2002, on the disparity between reported investigations and referrals for prosecution of cases involving terrorism.

Administration of Justice Under Emergency Conditions: Lessons Following the Attack on the World Trade Center (Vera Institute of Justice 2002). This report describes the impact of 9-11 on the justice system immediately after the attack. It draws lessons from the responses of courts to this unprecedented crisis and offers recommendations in planning for future emergencies.

Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public's Right to Know (Reporters Committee for Freedom of the Press 2nd ed.2002). In this White Paper, the Reporters Committee for Freedom of the Press reviews the changes since 9-11 in freedom of information laws, restrictions on media and news reporting, and access to terrorism and immigration proceedings. Concerns over increased government secrecy measures are examined in-depth at the federal and state levels.

Preliminary Report of the ABA Task Force on Treatment of Enemy Combatants (2002). The Task Force studied the mechanism for detaining American citizens as "enemy combatants" and the legal and policy issues raised by it. Their report provides recommendations and principles concerning detentions under these circumstances.
 

Report to Congress on Implementation of Section 1001 of the USA Patriot Act (OIG 2002). The Office of Inspector General prepared a report describing the results of its mandate to "review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice" under the USA Patriot Act.

Insatiable Appetite:The Government's Demand for New and Unnecessary Powers After September 11 (ACLU 2002). The American Civil Liberties Union published a report reviewing the expansion of the federal government's surveillance and law enforcement powers after September 11th. It describes the impact of these changes on civil liberties.

International Report 2002: United States of America (AI 2002). Amnesty International reviewed the U.S. government's actions after September 11th, including criticisms by human rights advocates concerning mass detentions, enactment of laws expanding law enforcement surveillance powers, and the establishment of military commissions to try non-U.S. Citizens.

Amnesty International's Concerns Regarding Post September 11 Detentions in the USA (AI 2002). "Amnesty International's findings confirm many of the organization's earlier concerns and suggest that a significant number of detainees continue to be deprived of certain basic rights guaranteed under international law. These include the right to humane treatment, as well as rights which are essential to protection from arbitrary detention, such as the right of anyone deprived of their liberty to be informed of the reasons for the detention; to be able to challenge the lawfulness of the detention; to have prompt access to and assistance from a lawyer; and to the presumption of innocence."

Rights at Risk: Amnesty International's Concerns Regarding Security Legislation and Law Enforcement Measures (AI 2002). "This report sets out some of Amnesty International's concerns regarding security legislation which infringes or undermines human rights. While focusing on the risks to human rights in new security legislation and procedures, it also gives examples of case histories which show the effects on individuals such measures have had in the past."

Criminal Enforcement Against Terrorists (Transactional Records Access Clearinghouse 2001). "The gap between the reported investigations and referrals for prosecution would appear to document a major challenge facing law enforcement in its attempts to prevent terrorism and punish terrorists."

Upsetting Checks and Balances: Congressional Hostility Towards the Courts in Times of Crisis (ACLU 2001). "This report, planned long before September 11, focuses on the laws enacted five years ago rather than the USA-PATRIOT Act signed into law by President Bush last Friday. But enactment of the most recent anti-terrorism legislation provides new urgency for considering a theme common to all these laws: the role of the judiciary in curbing the excesses of executive authority in pursuit of politically popular goals . . . . This report is, in effect, a five-year report card on the country's ill-considered foray into court-stripping."

 

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