February 24, 2004
Our community understands that, as all other Americans, Jews have a profound and direct stake in the war on terrorism. As part of a global community that has been a target of hatred and attacks, we recognize that the safety of our society requires the physical security that government is created to provide. Events in recent years have demonstrated the need to combat terrorism aggressively, and to provide law enforcement with the tools to tackle this complex threat. Of equal importance is that the debate surrounding the war on terrorism and how it impacts individual liberties be focused, informed, and free from unnecessary invective.
Most Americans want to maximize both security and civil liberties. Members of the law enforcement community have stated an interest in further calibrating their anti-terrorism efforts so as to honor their commitment to civil liberties. Some civil libertarians recognize that much of the USA PATRIOT Act is appropriate and does not unnecessarily conflict with civil liberties. Security and the protection of civil liberties are not mutually exclusive. It is reasonable for Americans to expect to be secure from both physical harm and violations of their individual liberties.
Many of the actions taken by Congress, the Administration, and law enforcement in the aftermath of the September 11th attacks represent reasonable responses to the terrorist threat. Other actions have generated controversy because of their impact on civil liberties. While some of these problems have arisen as a result of the enactment of the USA PATRIOT Act, many have resulted from the implementation or interpretation of laws that were already on the books, or in some instances, from actions undertaken with legal authority that some consider inadequate. These include the use of enemy combatant status, expanded and secret detention, and provisions allowing, without court approval, eavesdropping on attorney-client conversations of suspected terrorists.
The USA PATRIOT Act, however, does, contain several provisions that potentially infringe on civil liberties. They include provisions authorizing “sneak and peek” searches allowing federal agents to search Americans’ homes without notifying them for an indeterminate period. Also of concern are Section 215 which allows law enforcement to access a wide array of personal information such as medical, business, library, education, and genetic records without cause; and Section 505 concerning National Security Letters, which allow the FBI to obtain confidential information from a person’s telephone company and internet service providers, banks, and credit reporting agencies by claiming only that such information is sought for an “ongoing investigation, and allows the FBI to do so without court oversight at any stage of the investigation. All Section 215 orders include a permanent gag order, prohibiting any one who has been served with a such an order from ever revealing this fact. JCPA reiterates its concern (adopted 2002 Plenum) regarding the indefinite detention, without judicial review, of non-citizens who are certified by the Attorney General as suspected terrorists, whether or not they are criminally charged.
The JCPA believes:
- That the debate about the civil liberties implications of the War on Terrorism has been impaired by hyperbole. It is not productive to describe those who endorse measures to combat terrorism as opponents of individual rights unduly infringing on civil liberties; nor is it productive to characterize those who have criticized aspects of the war on terrorism as unpatriotic. Vigorous efforts to protect Americans from terrorism and advocacy to protect civil liberties are the essence of patriotism.
- That where measures are undertaken to combat terrorism that have the potential to conflict with vital civil liberties protections and other American and Jewish values, the protection of civil liberties requires that strong legal checks be maintained over the exercise of governmental power and that that such actions be carried out in secrecy only when necessary and subject to prompt judicial review.
- That the USA PATRIOT Act contains several provisions that seek to increase the security of Americans, most with safeguards to prevent civil liberties abuses. These include measures that allow foreign intelligence and domestic law enforcement to communicate, and procedures facilitating sensitive investigations. At the same time, some of the law enforcement tools provided in the USA PATRIOT Act would not be significantly hindered by increased judicial oversight. When legislation is proposed to dilute existing privacy protections, at a minimum, there must be a substantial, public showing of the need for such measures to combat terrorism, and the measures should impact on privacy rights as narrowly as reasonably possible and all such changes should contain sunset provisions. Legislation is necessary to modify aspects of the USA PATRIOT Act to provide reasonable limits on law enforcement’s authority without hampering their ability to investigate and prevent terrorism. Such measures should include amending the USA PATRIOT Act to provide reasonable time caps subject to extension by court order on sneak and peek warrants; to delay notification of subjects under such warrants only in cases where terrorism or actions of a foreign agent are suspected; to require as much specificity as prudent of the target or location of the targets of surveillance; to raise the standards for orders under Section 215 of the act, confining them to terrorism investigations, and requiring a greater showing of cause or individualized suspicion; to place reasonable time limits on gag orders for secret searches; and generally to provide greater judicial oversight in terrorism and other related investigations including mechanisms for judicial approval of search warrants and judicial review of detentions.
- That several administrative actions outside the scope of the USA PATRIOT Act have also infringed upon civil liberties and should be reversed or modified, including those that adversely impact the preeminent right of all individuals to competent legal counsel. We remain troubled by the application of Enemy Combatant status to American citizens captured in the United States, extended and secret detentions, and the potential trial of terrorism suspects with abridged due process protections. We reiterate our opposition to the Department of Justice directive that allows federal officials to monitor conversations between certain detained individuals and their lawyers without judicial approval. This directive has the effect of weakening not only the protection of attorney-client privilege, but the right to legal counsel altogether.
- That it is not appropriate, except in circumstances involving an identifiable and present threat, for law enforcement officials to investigate citizens or permanent residents based solely on the basis of ethnicity or religion. In fact, too narrow a focus on ethnicity or religion could allow terrorists to elude detection. Further, the government should not investigate persons solely based upon their having engaged in constitutionally protected speech or association, although association with persons known or reasonably suspected of supporting terrorism clearly justifies further investigation of an individual.
The community relations field should:
- Oppose the outright repeal of all or most of the USA PATRIOT Act, recognizing that these proposals would remove from law enforcement many tools that are necessary to combat terrorism, and would not obviate those provisions outside the USA PATRIOT Act that are of concern.
- Support legislation to modify specific sections of the USA PATRIOT Act, including increased Congressional and judicial oversight on the performance of the Executive Branch under the law. This will allow us to evaluate the successes and failures of these anti-terrorism provisions.
- Organize and work to promote civil and informed public discourse concerning the balancing of civil liberties and the war on terrorism.
- Work in coalitions to learn about the effects of the USA PATRIOT Act on other ethnic and religious communities