FISA, Detainee Rights, and Civil Liberties After 9/11

Key Legal Frameworks and Institutions

FISA — The Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act (FISA) governs the way the United States government carries out communication surveillance — including telefaxes, emails, telephone calls, and Internet activity — that passes through the United States, where either the sender or the recipient (or both) is a foreign power as defined by FISA. The Act's original purpose, dating to 1978, was to channel surveillance oversight through the FISA Court in order to address abuses by governmental agencies that had spied on U.S. citizens during the 1970s (Standler, 2007).

The Patriot Act

The Patriot Act enables investigators to use tools already available for drug-trafficking and organized-crime investigations. Many of the tools the Act makes available to law enforcement agencies in the fight against terrorism had already been in use for several decades against drug trafficking and organized crime, and had been reviewed and approved by the courts (DoJ, n.d.).

AUMF — Authorization for Use of Military Force

Barely a week after the attacks on the World Trade Center and the Pentagon, Congress hastily passed the Authorization for the Use of Military Force to address the new threat and its accompanying challenges (Cronogue, 2010). The statute authorized the President to:

Use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons (AUMF, 2001).

The Geneva Conventions

One of the central pillars of international humanitarian law is found in the four 1949 Geneva Conventions, which every nation in the world has adopted. Two additional agreements have been concluded to expand and supplement those Conventions: the 1977 Additional Protocols concerning the protection of victims of armed conflict, and the Additional Protocol III of 2005, which relates to the adoption of a distinctive emblem. Together, these Conventions establish specific rules for protecting sick, wounded, shipwrecked, and captured soldiers; prisoners of war; civilians; military chaplains; medical personnel; and military support workers (ARC, 2011).

Hamdan v. Rumsfeld

The landmark Hamdan v. Rumsfeld decision, issued by the Supreme Court on June 29, 2006, introduced significant changes to American judicial doctrine. It simultaneously clarified the separation of powers, the role of the Supreme Court, the rights of Guantanamo detainees, and the application of international humanitarian law within the context of the global war on terrorism. Salim Ahmed Hamdan, a Yemeni citizen, was captured in 2001 during hostilities between the United States and the Afghan Taliban. Afghan militia captured him and handed him over to U.S. forces. In 2002, he was transferred to the U.S. Naval Base at Guantanamo Bay, and a year later the President ordered — pursuant to the November 13 Military Order — that he be tried before a military commission (Keller & Forowicz, 2007).

Ex Parte Quirin

The petitioners in Ex Parte Quirin were eight German nationals residing in the United States who were apprehended while attempting to enter the country during wartime, allegedly for purposes of espionage, sabotage, hostile acts, or violations of the laws of war. The President ordered them to be tried before a military tribunal pursuant to the Articles of War, 10 U.S.C. §§ 1471–1593. The petitioners challenged this order, arguing that under Article III, Section 2 and the Fifth and Sixth Amendments of the Constitution, they had the right to be tried by a civilian jury. The Court held that the petitioners were unlawful belligerents and were therefore not entitled under the Articles of War to a jury trial or civil proceedings. The Court further held that trying them before a military tribunal did not violate the Fifth and Sixth Amendments and could not be considered unlawful. The Court thus upheld the President's authority to order the military tribunal trial without a jury (Ex Parte Quirin et al., 1942).

Military Commission Act of 2006

President Bush issued a Military Order on November 13, 2001, authorizing the trial of non-citizens suspected of involvement in terrorism by military commission. The military commissions established under that order were subsequently struck down by the Supreme Court for non-compliance with the Uniform Code of Military Justice (UCMJ). To allow military commissions to proceed, Congress enacted the Military Commission Act (MCA) of 2006, granting authority to promulgate rules that diverge from UCMJ requirements and potentially from certain U.S. international obligations. The Department of Defense published regulations governing military commissions under the MCA, and three prosecutions ultimately resulted in convictions (Elsea, 2009).

Ex Parte Milligan

A military commission is a court composed of military personnel that performs various functions, including trying enemy combatants for violations of the laws of war. In Ex Parte Milligan, decided approximately twelve months after the end of the Civil War, the Supreme Court held that the U.S. military lacked the constitutional authority to try a U.S. citizen residing in Indiana before a military commission. All five justices agreed that conducting such a trial would have been a gross constitutional violation, even with congressional approval, while four concurring justices concluded more narrowly that the trial was unlawful because it exceeded the limits Congress had itself established. Although the decision came at the end of the Civil War, it is widely regarded as a rare and celebrated instance of the Supreme Court invalidating executive wartime action in order to protect civil liberties (Bradley, 2008).

Boumediene v. Bush

In the consolidated cases of Al Odah v. United States and Boumediene v. Bush, decided on June 12, 2008, in a 5–4 opinion, the Supreme Court held that aliens designated as enemy combatants and held at the U.S. Naval Station at Guantanamo Bay, Cuba, retain the constitutional right to petition for habeas corpus. The Court simultaneously found that Section 7 of the Military Commission Act — which restricted judicial review of the executive branch's combatant status determinations — failed to provide an adequate habeas substitute and therefore constituted an unlawful suspension of the writ of habeas corpus (Garcia, 2008).

FISC — Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Court (FISC), established under the Foreign Intelligence Surveillance Act of 1978, reviews government applications to conduct surveillance and collect data for foreign intelligence purposes. It is an Article III court comprising eleven district court judges selected by the Chief Justice of the Supreme Court from at least seven regional judicial circuits (Cole & Nolan, 2014).