In the wake of the 9/11 terrorist attacks, Congress struggled to find
the “smoking gun” of failures that enabled 19 terrorists to crash the World Trade
Center, the economy, and the intelligence community. Without clear answers, and
with added pressures from voters, Democrats and Republicans worked together to
introduce an arsenal of military campaigns, new legislation, executive departments,
bureaucratic positions, and immigration policies to quell public outcry for security.
With the initial passage of the USA PATRIOT Act, many felt complacent with
their government’s actions. However, as the revelations from Edward Snowden
surfaced, the debate between national security and individual liberty revived.
16 years after the attacks, and billions of dollars later, the justice system
is just the most recent victim of the War on Terror.
Enacted quickly after the 9/11
attacks, the USA PATRIOT Act promised to expand Law Enforcement’s ability to
identify potential terrorists within the US. The Act increased the scope of
National Security Letters NSLs–domestic subpoenas issued in secrecy by the FBI
to obtain a variety of information, such as internet history, phone records,
and credit reports. According to Hannah Bloch-Wehba, a Clinical Lecturer in Law
at Yale University and notorious defender of individual liberties, “using an
NSL, the FBI can—without judicial oversight or a court order—demand that a
company produce certain categories of information about a user, and that it
remain silent about that demand, as long as the agency certifies that the
records are relevant to an authorized investigation of international terrorism”
(Bloch-Wehba). Proving highly controversial, the FBI can issue a NSL without
notifying the citizen or by getting a warrant from a judge, the traditional way
subpoenas are produced, leading to potential abuse of power by the FBI. The
American Civil Liberties Union has argued that these letters oppose constitutional
rights to privacy, but the courts upheld secretive use of NSLs in the case Doe v. Holder (ACLU). According to the
New York University Law Review, “This lack of judicial oversight and the
inability to disclose receipt of an NSL provide little guarantee that the FBI
is in fact seeking information ‘relevant to an authorized investigation'”
(Garlinger 11). Without public or judicial accountability, it is near
impossible to know how these government agencies are treating American data and
rights. Indeed, even many members of the government are oblivious to the
pervasive use of NSLs. In a report by the Inspector General, the office
responsible for investigating the FBI and reporting results back to Congress,
it was stated that in a random sample of 77 cases that used NSLs, 31 were not
recorded (32). With misleading figures produced by the investigation, it became
difficult for congress to perform their constitutional oversight duties on the
FBI, as the numbers produced are likely highly conservative. The report released
that the FBI issued 192,499 National Security Letters from 2003 to 2005 (36),
leading to 1 confirmed terror conviction (64). While this process might seem
grossly ineffective with only 1 conviction (and likely more undocumented NSLs
used), the Inspector General also confirmed that National Security Letters were
able to identify money laundering, check financial ties for terrorist organizations,
check ties to extremists, and identify jihadists (64).
Even though these convictions might
not be directly related to terror, they do suggest that NSLs can be effective
at detecting a wide range of terror related activities, and can potentially breach
critical financial ties to terrorist organizations. While diversified, NSLs
give new, broadly unchecked powers to the FBI and prosecutors – at the expense
of American liberties and privacy.
Once convicted of terrorism, inmates are sent to
special prisons at the discretion of the Federal Bureau of Prisons BOP. According
to the Director of the BOP, Harley Lappin, “the international terrorists are
divided into categories… our more higher concerned leadership, those that have
the most influence, are managed in a very restrictive, controlled
environment–at ADX Florence tier 1 … then you have got a second tier where
we do not have to have them as restricted, but we want to control their
communications. They are housed in communication management units” (Lappin 21).
The main concern for BOP is radicalization among inmates. Since the majority of
inmates in the nation’s prisons will, eventually, be released into society, the
threat of convicted terrorists recruiting other inmates into terrorist
organizations must be mitigated. BOP’s response to these problems are isolating
convicted terrorists in high security prisons, and limiting each inmate’s
rights. Each of these prisons have significantly heightened security and lower
quality of life for their inmates. Both of the aforementioned tiers are
Tier 1: ADX Florence
ADX Florence is the highest security prison in the country – the end of the
line for high risk inmates, including terrorists, thwarted escapers, and
extremists. In a study consisting of direct interviews and letters with inmates,
the Prison Journal published that the
ADX Florence employs brutal tactics including “four-point spread-eagle
restraints, forced feedings, cell extractions, mind-control medications, and
chemical weapons used to incapacitate prisoners” (Richards 16). Even with
obvious encroachments on constitutional protections, and basic human rights the
government goes to great lengths to oppress each prisoner. At the ADX Florence,
each of the communications discussed in tier 2 are implemented.
Tier 2: Communications Management
2 locations within the United States, tier 2 terrorists are treated similar to
regular inmates, except communication between inmates and the rest of the world
are limited and intensely monitored by the FBI. According to the Columbia Human Rights Law Review, prisoners
at these units can “may make only two fifteen-minute telephone calls per week
and may only receive two visits per month—far less contact with the outside
world than BOP permits for virtually all other federal prisoners” (Shapiro 5). Often
described as the “bright spot” in prison, phone calls are essential to the
mental health of the prisoners – which the government cares minisculely. According
to the FBI’s own CMU operations, “regular visiting may be limited to immediate
family members… limited to four one-hour visits each calendar month” (Samuels
11), while their counterparts in regular prisons can receive up to “35 hours
per month” (Shapiro 22). The BOP goes farther than just limiting prisoner
visitation. Inmates can only read preapproved books by the FBI (Shapiro 2).
Phone calls are routinely monitored, and limited to 15 minutes 3 times a month,
while their counterparts are offered 300 minutes (Samuels 10). Even
conversations with inmates’ lawyers can be intercepted by agents (Columbia 2).
These prisons send a clear message to the rest of the country: constitutional
rights do not apply to terror convicts.
As an overarching trend, the post
9/11 terror reform has led to the exchange of personal liberties for national
security in our justice system. In the FBI, constitutional search protections
are waved to identify potential terrorists. In the prisons, convicted terrorists
serve their sentences disenfranchised of their “unalienable rights…to Life,
Liberty and the pursuit of Happiness” (DOI) that America was founded upon. Perhaps
Al Franken encapsulated the complexity: “The government must give proper weight
to both keeping America safe from terrorists and protecting Americans’ privacy.
But when Americans lack the most basic information about our domestic
surveillance programs, they have no way of knowing whether we’re getting that
balance right. This lack of transparency is a big problem”. National security
comes at the expense of individual rights, and it’s the role of democracy to compromise.
Bloch-Wehba, Hannah. “New
Disclosures Reflect NSLs’ Substantive First Amendment Flaws.” Yale Law School, Just Security, 19 Dec.
Butterfield, Jeanne A. “Broken
Fences: Legal and Practical Realities of Immigration Reform in the Post-9/11
Age.” University of Maryland Law
Journal of Race, Religion, Gender & Class, vol. 5, no. 2, Sept. 2005,
v. Holder.” American Civil Liberties
Union, 17 Nov. 2009.
General, US Inspector. “A Review Of
The Federal Bureau Of Investigation’s Use Of National Security Letters.” Office of the Inspector General, Mar.
Perkinson, Robert. “Shackled
Justice: Florence Federal Penitentiary and the New Politics of Punishment.” Social Justice, vol. 21, no. 3 (57),
1994, pp. 117–132.
Richards, Stephen C. “USP Marion
The First Federal Supermax.” The Prison
Journal, vol. 88, no. 1, Mar. 2008, pp. 1–18.,
Samuels, Charles E. “Communications
Management Units – Program Statement.” Federal
Bureau of Prisons, U.S. Department of Justice, 1 Apr. 2015.
Shapiro, David M. “How Terror
Transformed Federal Prison: Communication Management Units.” Columbia Human Rights Law Review, vol. 44,
no. 1, Fall2012, pp. 47-91.
United States, Congress, Cong.
House, Committee On The Judiciary, and Harley Lappin. “Federal Bureau of
Prisons Oversight.” Federal Bureau of Prisons Oversight, 21 July 2009. 111th
Congress, 1st session, document 111-89.