I attended a meeting of a committee of the American Bar Association today.
There was a panel on civil liberties after September 11. Civil
liberties are not a core interest of mine, although listening to professional
advocates and litigators always scares me, since their job is to tell
us about the egregious cases that do arise. The experts on the panel today
pointed out four worrying trends that I hadn’t fully understood before:
- The material witness statute was designed to allow the government
to hold witnesses who might be expected to disappear, until such a time
as they could be deposed. Since 9/11, it is being used to hold people
indefinitely without any claim that they witnessed any specific crime,
and without notice that they will be deposed or otherwise interviewed.
- Search warrants are traditionally executed in the presence of the
person being searched. This is a safeguard, since the person can complain
if his rights are violated, if the police are in the wrong house, etc.
But under the Patriot Act, federal agents can execute "sneak and
peek" warrants that are clandestine searches never disclosed to
the person whose property is searched. This power applies to all cases,
not just those connected to terrorism.
- The proposal for TIPS (Terrorism Information and Prevention System)
would have enlisted huge numbers of volunteers, including cable-TV installers
and others who routinely enter our homes, as a source of tips on possible
terrorists. This program would have promoted volunteerism; but it would
also have undermined the fourth amendment.
- Just yesterday (or so I was told), legislation passed Congress that
will require judges to notify the Attorney General whenever they use
discretion to impose sentences lower than the minimum recommended in
federal sentencing guidelines. The three federal judges who were in
attendance today are certain that this will have the proverbial "chilling
effect," since judges will be afraid of public exposure and censure
by John Ashcroft. I would hope that federal judges would have backbones.
We give them life tenure as well as nice salaries and high social status,
so they should be willing to stand up to criticism from the political
branches of government. However, hope is not a good basis for legislation.
The judges in attendance predicted that their colleagues will fear criticism.
They are probably right, which means that the legislation is a blow
to judicial independence.