Civil Liberties And National Security: Striking The Proper Balance
Adopted by the UAHC Board of Trustees June, 2003
RESOLUTION ON CIVIL LIBERTIES AND NATIONAL SECURITY: Striking the Proper Balance
The September 11, 2001 attacks on the World Trade Center and the Pentagon were a powerful demonstration of the horrors of terrorism and offered proof of the urgent need to defend our country against these dangers. Since September 11, 2001, the U.S. government has sought to enhance security, necessitating a recalibration of the balance between security and civil liberties. Many of the measures taken have proven crucial to law enforcement's ability to combat terrorism. However, the effort to provide law enforcement officials with the tools they require to prevent terrorism has often come into conflict with the need to protect Constitutional rights to privacy and due process.
The American Jewish community long has cherished the freedoms guaranteed to all Americans in the Constitution. The vitality of these freedoms is confirmed not only by our commitment to our American heritage, but also by centuries of Jewish law. As we strive to strike the appropriate balance between these cherished freedoms and our national security, we turn to Jewish law for guidance.
The mandate to protect an individual's right to privacy was articulated early in Jewish law. The Bible and the Talmud outline rules for protecting the privacy of one's home, granting protection against intrusion by creditors (Deuteronomy 24:10-11) or neighbors (Pesikta Zutarta, Parashat Vayikra). Rabbi Akiva went so far as to suggest that one should knock before entering one's own home, lest another family member require privacy (Talmud Bavli, Pesahim 112a).
Not only is physical intrusion prohibited, but also surveillance of private space was deemed to be a violation of privacy rights. The Talmud identifies a category of "harm caused by seeing" (hezeq re'iyyah) when one's privacy is violated by the prying eyes of another (Talmud Bavli, Baba Batra 2b-3a). To illustrate this principle, the Rabbis offer a striking interpretation of Balaam's blessing of the Israelites, "How fair are your tents, O Jacob, Your dwellings, O Israel!" (Numbers 24:5). In the Talmud, Rabbi Yochanan explains that the Israelites set up their tents so that the entrances did not face each other, thus protecting one another's privacy, and making them worthy of praise.
Jewish teaching condemns eavesdropping, gossip, and the unauthorized disclosure of information. We are prohibited from revealing confidences and even are forbidden to seek out the secrets of others, lest we violate this principle1. Later codes extend these rights to protection of private correspondence; Rabbenu Gershom issued a decree in the 10th Century that reading another's mail was a punishable offense2.
Jewish tradition acknowledges that preventing crime may require discovery of confidential information, yet this exception is extremely limited. The Mishna teaches that even in capital cases, one is not permitted to conceal a witness for the purpose of spying, except to prevent idolatry (Mishna Sanhedrin 7:10).
Set against all these privacy rights is the overriding principle of Pikuah Nefesh - saving a life. Nearly any commandment can be violated if the result is saving a human life. For example, later halachic scholars permitted opening another's mail to prevent injury3.
When lives clearly are at stake, we are permitted to use all means possible to save them, even if it means intruding on some of our individual freedoms. And so today as in our history, we still struggle with the challenge of knowing where to draw the line between the values of privacy and individual rights, and the need to give law enforcement agencies the tools necessary to provide for our safety.
Changes in Civil Liberties Since September 11th
In its resolution on "September 11th and Its Aftermath," the Union of American Hebrew Congregations agreed that "restrictions on freedom will be necessary - not to deny basic liberties but to prevent their abuse." The resolution also affirmed that: "Civil liberties are our strength, not our weakness." Some of the policies enacted by Congress and adopted by the Administration since September 11th have treated our Constitutional freedoms as weaknesses and have failed to strike an acceptable balance between individual rights and the needs of law enforcement.
A. Privacy, Surveillance and First Amendment Issues
Under the USA PATRIOT Act and subsequent court rulings adopted in the aftermath of September 11th, the Foreign Intelligence Surveillance Act (FISA) has been greatly expanded. Intrusive government surveillance has been a concern of the UAHC in the past. In 1971, the UAHC passed a resolution stating that by "employing wiretap techniques, the government may well have overstepped its constitutional power to stop foreign espionage." In response to the concerns of the UAHC and others, the FISA was enacted in 1978, establishing an important barrier between foreign intelligence surveillance within the U.S. and domestic criminal investigation. Under FISA as originally passed, a secret court may grant permission to conduct surveillance of foreign powers or agents of foreign powers only, using a lower standard of scrutiny than is used by the criminal justice system. The USA PATRIOT Act amends FISA to give greater authority to the Attorney General to permit domestic criminal surveillance to come under its jurisdiction, a significant expansion.
The USA PATRIOT Act also gives investigators the authority to use new surveillance techniques. Among others, the FBI and NSA can now conduct Internet and phone surveillance as well as conduct "sneak and peek" searches in which officials may search property, informing the individual whose property was searched only after the investigation. While the threat of terrorism demands some changes to the ways in which we conduct investigations, past UAHC policy and basic Jewish values lead us to question the wisdom of these changes.
Similarly, to enhance investigative powers of law enforcement agencies, the Administration has proposed data-mining programs such as Total Information Awareness to collect vast amounts of private information on each American, including telephone records, ATM withdrawals, medical records, educational and travel data. Collected information would be entered into a computer program that would search for indications of terrorist activity. Other proposals, like Operation TIPS, would deputize ordinary Americans to spy on their neighbors and report suspicious activity, creating an environment in which all Americans are viewed as suspects. These and like proposals for accumulating large amounts of data on individuals with no connection to specific investigations undermine privacy rights with no realistic promise of benefits to law enforcement. They merely perpetuate the illusion of security, while real threats may continue to elude law enforcement.
The Administration has introduced new policies and regulations that impact civil liberties, particularly as they apply to non-citizens. Since September 11th, the Justice Department has begun a strategy of widespread preventive detention, resulting in the secret imprisonment of more than 1,200 individuals - mostly non-citizens of Middle Eastern descent. Also, "Special Registration," initiated by the INS in November 2002, requires male non-citizens ages 16 and older from 24 predominantly Arab and Muslim countries and North Korea to present themselves at INS offices for registration. The registration process includes questions on residence, comparison with lists of suspected terrorists, fingerprinting and face scans, and questions about constitutionally protected activities such as mosque attendance and political views.
Investigative techniques like "mosque counting," where the FBI uses the number of mosques in an area to help determine how many search warrants and wiretaps should be issued, are based on and propagate the assumption that all Muslims should be viewed with suspicion. Such changes to the FBI guidelines on investigation represent a danger to freedom of association and threaten to stifle free expression, two pillars of our democratic society.
B. Due Process and Right to Counsel
In recent years, there has been a steady erosion of due process rights for citizens and non-citizens alike. In addition to preventive detention, the use of "secret evidence" in immigration hearings and the adoption of draconian deportation policies have eroded civil liberties, while the moderating influence of judicial review has been diminished. There may be compelling national security reasons to justify closed hearings in very narrow circumstances. There are also instances where closed hearings may be needed to protect individuals such as asylum applicants and victims of violence against women. But in all such cases, due process safeguards and civil liberties protections must be provided.
The system of military tribunals proposed by President Bush and modified by the Department of Defense also raises serious due process concerns. Proposed standards for these tribunals may violate provisions of the Geneva Convention, which provides that defendants should be afforded the right to see the evidence against them, the right to a unanimous verdict and the right to an independent appeal. A related concern involves the designation of U.S. citizens and others accused of terrorism as "enemy combatants," which allows the government to deny them access to counsel, remit them to military tribunals, detain suspects indefinitely, and refuse appeals.
Of equal concern are Attorney General directives, including the authorization of surveillance of attorney-client communications without demonstration that these conversations are being used to perpetrate criminal activity. The attorney-client privilege is enshrined in our legal system. To intrude on this right absent a judicial determination of probable cause is to strip the American justice system of one of its cornerstones.
This month, the Inspector General of the Department of Justice released a report critical of DOJ's mass roundup of undocumented immigrants in the months after the September 11th attacks. According to the report, many immigrants with no connections to terrorism were held for months without charges before being cleared or deported for immigration violations. Detainees were often denied access to counsel and in some cases, were not allowed to speak with their families. The report also describes the extremely aggressive tactics employed against immigrants who were technically being held only on minor immigration violations rather than evidence of criminal activity.
Clearly, the government must be empowered to detain and prosecute terrorists effectively. However the protections of privacy and due process embedded in our judicial system must not be diminished for the sake of expedience. History teaches that fear and haste can lead to bad decisions.
Therefore, the Board of the Union resolves to:
Apply the following principles in assessing the proper balance between civil liberties and the measures required to combat terrorism:
Investigation, prevention, and prosecution of terrorism by law enforcement agencies are urgent priorities, but must be conducted in ways that are consistent with fundamental principles of our justice system and Constitution, including due process, right to counsel and judicial review;
The political climate must remain open and free. Public discourse regarding the appropriateness of governmental action in the war on terrorism must continue to be a valuable and respected part of American democracy;
When government seeks to dilute existing privacy protections, at a minimum, there must be a substantial, public showing of the need for such measures to combat terrorism, the measures should impact on privacy rights as narrowly as reasonably possible and all such changes should contain sunset provisions;
Evolving technologies and new understandings of the methods used by terrorist organizations require enhanced anti-terrorism investigative tools, such as roving wiretaps;
Maintain its longstanding commitment to the right to privacy of American citizens and residents by:
Opposing statutes and administrative directives that expand domestic wiretapping under FISA, and eliminate or weaken the Fourth Amendment standards of probable cause;
Opposing investigation of citizens and non-citizens, initiated solely on the basis of ethnicity, religion, or constitutionally protected speech or association, absent reasonable suspicion of potential criminal wrongdoing;
Opposing programs, such as Operation TIPS, that engender a climate of suspicion and mistrust by asking civilians to investigate and report on the "suspicious" activity of other Americans;
Opposing the use of data-mining technologies, such as Total Information Awareness, as a means of targeting suspicious behavior and opposing the misuse of data derived from the use of such technologies;
Maintain its longstanding commitment to the Constitutional principle of due process for citizens and non-citizens alike by:
Opposing directives permitting surveillance of attorney-client communications without demonstration of probable cause to believe that such communications will be used to perpetrate criminal activity;
Opposing administrative rulings that designate citizens as "enemy combatants" and thus not entitled to the full range of due process rights;
Opposing indefinite detention;
Opposing the use of military tribunals to try terrorism suspects without provision of due process protections;
Opposing the use of "secret evidence" and closed hearings absent compelling circumstances to be established on a case by case basis, with notice to the accused, an opportunity to be heard concerning the proposed closure, and judicial review.
Opposing measures that strip the power of immigration and federal judges to review decisions and exercise discretion regarding the status, detention, and deportation of non-citizens.
1Jacob Hagiz, Resp. Halakhot Ketannot, I #276, cited by Menaham Elon, Jewish Law in the State of Israel, p. 1858. 2Enactments of Rabbenu Gershom Me'or ha-Golah, quoted in Resp. Maharam of Rothenburg, ed. Prague, p.160a; cited by Elon, p. 1858. 3Hayyim Palache, Resp. Hikekei Lev, I, YD #49; Rema to Shulchan Aruch, Yoreh Deah 228:33; cited in Elon, p. 1858.