AS LAWMAKERS debate proposed new legislation that may curtail civil
liberties, it is important to understand some of the existing legislation that
grants the government sweeping powers to investigate and detain suspects. These
laws, which have already withstood constitutional challenge, are now being
widely employed around the country.
A law enforcement tool largely unknown outside of criminal justice circles
is the material witness warrant. Under the federal code, a judge may issue a
warrant to arrest anyone for whom there is probable cause to believe he or she
may have important testimony in a criminal proceeding - when securing the
appearance of that person may be "impracticable."
Unlike the usual arrest warrant requiring evidence that a person has
committed a crime, material witness warrants can be issued against innocent
persons simply because they possess relevant information but might flee. Once
arrested, the "material witness" can be jailed almost indefinitely in order to
prevent a "failure of justice." Hence, foreign nationals can be held until the
criminal justice investigation clears them or ripens to the point that they can
be charged with a crime.
Also largely unknown outside law enforcement circles is the Foreign
Intelligence Surveillance Act of 1978, or FISA, which allows the attorney
general to obtain court orders for wiretaps, to install listening devices and
conduct searches without any need to show that a crime has been or is about to
A FISA interception order requires little beyond probable cause to believe
that the person or group targeted is an agent of a foreign power of an
international terrorist group. FISA warrants are issued in secrecy by special
courts that have only once turned down an application, according to the public
record. American citizens and lawful, resident aliens generally may not be
targeted under FISA, but exceptions exist even there.
Better known to the American public is the federal grand jury, at least one
of which has been impanelled in New York's Southern District to investigate
the recent attacks. Everyone summoned to appear before a grand jury is legally
required to answer questions: Assertions of the privilege against
self-incrimination can be overridden by prosecutorial grants of immunity.
Witnesses who refuse to answer lawful questions may be jailed until they
cooperate. They can also be prosecuted criminally and sentenced to lengthy
terms of imprisonment.
With respect to controlling immigrants who reside here or who seek entry,
the U.S. Supreme Court has ruled that no person who is not a citizen of this
country has a constitutional right to be here. Congress and the executive
branch have broad powers to regulate, question, detain and remove non-U.S.
citizens present in the United States.
Non-resident aliens may be barred outright from entering into the United
States. Once granted the privilege of entering the country, an alien's
residency and activities are subject to control and review. The government is
free to scrutinize any alien it chooses, and it can withdraw someone's visa
without showing that the person has been involved in criminal activity. Even
lawful resident aliens can be removed from this country based upon secret
evidence to which they never become privy.
Aliens may be detained for violations of their terms of entry and residence
- even trivial offenses such as working without permission or failing to
report a new address. The many individuals recently arrested for being
"out-of-status" are being held for minor violations of immigration law that are
generally overlooked, and they will probably remain in detention until
prosecutors decide whether to bring charges stemming from the attack or they
These laws and many others already provide the government with extensive
legal resources to meet the current crisis. They have been abused even in times
of peace. Grand juries have been used to harass legitimate political
activists, and techniques designed for foreign intelligence gathering have been
employed against Americans lawfully opposing U.S. policies. Periodic bursts of
anti-immigrant sentiment, often with racist overtones, have targeted the
honest and hard-working among us.
The government may need additional powers to update laws in response both
to technological revolutions and the current crisis. Some of the proposals by
Attorney General John Ashcroft would make only narrow reforms that were long
overdue anyway. Other proposals, particularly granting law enforcement broad
powers to deport legal aliens without any evidence of wrongdoing, are vastly
more troubling and have been stripped from the House of Representatives'
version of the bill.
Ashcroft has demanded speedy congressional action. But with such formidable
powers already in the hands of law enforcement, all proposals for new
legislation should receive respectful, but searching, open and deliberate