Since 9/11, the president and his advisers have aggressively capitalized on Americans’ fear of additional terrorist attacks by insisting that our safety can only be secured if the executive branch is allowed to override Congress and the courts when necessary. For example, George W. Bush has attached “signing statements” to many of the bills he has signed into law, stipulating that he can ignore those laws if he decides they endanger national security.
Both Congress and the federal judiciary have largely deferred to such an unprecedented expansion of presidential power, but there’s a growing rebellion among certain federal judges against this imperial rule by fear.
A crescendo was reached on June 10 when Judge Diana Gribbon Motz of the Fourth Circuit Court of Appeals in Virginia—known for its obsequiousness to Bush—thundered: “We refuse to recognize a claim to power that would so alter the constitutional foundations of our republic.”
The case at hand was that of Ali al-Marri, imprisoned for four years at the Navy brig in Charleston, South Carolina. He’d been arrested in Peoria, Illinois, while living with his family and studying computer science at Bradley University. Suspected of—but not charged with—being an Al Qaeda sleeper agent, al-Marri was pulled from the local criminal-justice system, where he was charged in a credit-card fraud case, and held by the military as an enemy combatant, by designation of the president.
Said Judge Motz accusingly: “To sanction such presidential authority to order the military to seize and indefinitely detain civilians would have disastrous consequences for the Constitution—and the country.” Charge al-Marri, she ruled, or deport him, or hold him as a material witness—or release him. This still being America, she ordered the trial judge to issue a writ of habeas corpus.
The indefatigable attorney for al-Marri—Jonathan Hafetz of the NYU Law School’s Brennan Center for Justice—saluted Judge Motz for “this landmark victory for the rule of law and a defeat for unchecked executive power.” But none of the Democratic candidates for president has even mentioned Judge Motz’s emphatic declaration of judicial independence.
Meanwhile, in the federal Southern District Court in New York, another judge, Victor Marrero, has twice ruled that the national-security letters authorized under the Patriot Act are unconstitutional for shredding both the First and Fourth amendments. These national-security letters give the FBI virtually unlimited power to demand—without first going to a judge or getting a grand-jury subpoena—personal records from banks, telecommunications companies, and other institutions.
In his first ruling on these FBI secret searches three years ago, Judge Marrero overturned a startlingly broad gag order that prevented these institutions from ever telling the people under investigation that their right to privacy under the Fourth Amendment had been summarily breached.
Responding to Marrero’s sharp lesson on the Bill of Rights, Congress made a pass at amending the Patriot Act in 2005, adding a provision that supposedly allowed these institutions to challenge the FBI gag order before a federal judge.
But on September 6 of this year, Marrero—in a stinging 103-page decision—knocked down this flimsy congressional repair job, which he found still allowed the government to violate the First and Fourth amendments.
Since many Americans don’t have the time to read that 103-page decision—or know where to find the handful of news sources that summarized it—few citizens are aware how deeply these national-security letters allow the government to burrow into our private lives. And fewer still know that the FBI has shared the results of these stealthy searches (including by databasing them) with other intelligence agencies.
In this second resounding challenge to the Bush administration’s utter contempt for the Bill of Rights, Judge Marrero made it inescapably clear how un-American our rulers have become. By erasing the protections for individual liberties put in place by the framers, the president and his accomplices are turning us into a country that bears little resemblance to the one set forth in the Constitution.
“Through the use of NSLs,” Judge Marrero wrote, “the government can unmask the identity of internet users engaged in anonymous speech in online discussions. It can obtain an itemized list of all the e-mails sent and received by the target of the NSL, and it can then seek information on individuals communicating with that person. It may even be able to discover the websites an individual has visited and queries submitted to search engines.” (Emphasis added.) And it has been able to do this in total secrecy.
Judge Victor Marrero is, I hope, an inspiration to other members of the federal judiciary. And since the case is still on appeal, perhaps Supreme Court Justice Anthony Kennedy (who is usually the “decider” in 5-4 decisions on these issues) will agree with him.
In his decision declaring the national-security letters unconstitutional, Judge Marrero sounded a warning on what will happen if other judges don’t stand up to this—or any other—imperial president: “The pages of this nation’s jurisprudence cry out with compelling instances illustrating that . . . when the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty.”
Citing the internment of Japanese-Americans during World War II, among other shameful episodes in our history, Marrero warned of “the tragic ill- effects” that have been felt “in the wake of the courts’ yielding ground to other branches of government on the constitutional role the judiciary must play in protecting the fundamental freedoms of the American people.”
He continued: “Viewed from the standpoint of the many citizens who lost essential human rights as a result of such expansive exercises” of unchecked governmental power, “the only thing left of the judiciary’s function . . . was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights.”
This funeral for the Bill of Rights will continue here so long as the president and the Congress (Republican or Democratic) rule by fear, aided and abetted by a timid judiciary. Al Qaeda has regained its strength, and there are ever more terrorist operations linked to it—or inspired by it—around the world. As the war on terror continues, can our Constitution survive it?