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Balancing life and liberty

'Danger to civil liberties when security is strengthened'

Osama Awadallah was detained after his name was found on a piece of paper in the car abandoned by one of the hijackers of Flight 77.
Osama Awadallah was detained after his name was found on a piece of paper in the car abandoned by one of the hijackers of Flight 77.  

By Kevin Drew

ATLANTA, Georgia (CNN) -- One of the greatest challenges facing Americans in a post-September 11 world may be summed up looking at the plight of Osama Awadallah.

FBI agents tracked down Awadallah in San Diego 10 days after the terrorist attacks. They had found his first name and former phone number on a scrap of paper in a car abandoned by one of five men who commandeered American Airlines Flight 77 and crashed it into the Pentagon.

Awadallah, a 21-year-old Jordanian-born college student, was charged with making two false statements during FBI interrogations. The charges were later dropped, but they could have cost him up to 10 years in prison.

Awadallah spent nearly three months in jail, was treated as a high-security inmate and often held in solitary confinement. A judge granted him bail last December.

In May, a judge dismissed perjury charges against Awadallah and ruled that his detention as a material witness without being charged was unconstitutional.

Last September 10, the stock market and Barry Bonds chasing baseball history were on the minds of most Americans. A day later, everything changed. CNN's Beth Nissen reports (September 10)

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District Court Judge Shira Scheindlin ruled that the U.S. government has no "authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation."

Awadallah's case poses a difficult question for Americans that offers no easy answers: How can civil rights principles be preserved while making people safe from terrorists?

The moves by the Bush administration to expand investigative powers have been endorsed by many as overdue action to fight a new type of enemy in a rapidly changing world.

Critics of the Bush administration's actions argue that America's civil liberties are at risk and they worry about due process and privacy.

One change since last year, for example, gives federal investigators the authority to physically observe people at libraries -- the books they are reading and checking out and the material they are viewing on computers -- without informing the public.

"This does distress us, because how can a person complain about government abuse of surveillance if they never knew they were being watched?" asked Emily Sheketoff, executive director of the Washington office of the American Library Association.

Others, however, maintain that the agressive response by the Bush administration is necessary to fight a new enemy.

"I go to the airport and I've had everything taken away from me because of the terrorists," said Victoria Toensing, a former official of the Justice Department. "People haven't realized yet, though, that we are at war."

A former deputy assistant attorney general in the criminal division, Toensing established the department's terrorism unit.

Bush administration responds quickly

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In the first weeks following last year's attacks, the Bush administration and Congress moved quickly to expand government authority to search records and detain people.

Many of the new policies are in the USA Patriot Act, passed last October by Congress and signed by President Bush. (More about the Patriot Act)

Some investigatory power changes did not require congressional approval, the result of executive orders or rule changes announced in the Federal Register.

For example, regulations now allow federal agents to eavesdrop on attorney-client conversations for terrorism cases; government officials are told they can deny public access to many documents requested under the Freedom of Information Act.

In May, U.S. Attorney General John Ashcroft announced new regulations that permit FBI agents to search the Internet for terrorist material, attend any event open to the public and extend preliminary investigations for as long as a year without approval from headquarters in Washington.

Some changes, says the Justice Department, are simply a more aggressive use of existing legal authority, such as invoking antiterror laws already on the books to inspect student records at colleges and universities. (The search on campus)

Other changes have yet to be exercised: In a presidential decision last winter, Bush approved the use of military tribunals to judge terrorist suspects, but no tribunals have yet been held. (A look at military tribunals)

The Justice Department has always had multiple tools at is disposal to hold individuals: criminal charges and immigration law violations, as well as material witness statutes intended to hold people who may have knowledge of a crime. But the Justice Department's use of such tools has been more aggressive as it seeks out terror plots.

Since the September 11 attacks, local, state and federal authorities have detained about 1,200 people, the Justice Department has said. Many were released or deported. About 140 remained in custody as of June. An undisclosed number have been held as material witnesses.

Courts rebuff the White House

Yaser Esam Hamdi
Yaser Esam Hamdi, center, was captured in Afghanistan. A U.S. citizen, Hamdi was named a "enemy combatant" and is being held in a military jail.  

Court rulings this year, however, have stalled some of the administration's moves.

"There's always a danger to civil liberties when security is strengthened," said Charles Shanor, a constitutional law expert at Emory University. "It's the administration's job to pursue the war on terror, and the courts will tell them when they've gone too far."

In May, a secret court established under the 1978 Foreign Intelligence Surveillance Act (FISA) ruled that prosecutors who want to consult with intelligence agents must first advise the Justice Department in advance and invite lawyers to participate.

Justice Department officials maintain the Patriot Act allows for more robust coordination between intelligence agencies and law enforcement. (More on the ruling)

In August two federal judges ordered the federal government to release the names of hundreds detained in the terror probe, and they criticized treatment of a U.S. citizen held as an enemy combatant, a classification that allows prosecutors to detain someone indefinitely without bringing charges or allowing access to an attorney.(A look at the ruling)

The Justice Department has refused to release information about most detainees; the agency says revealing their names could compromise the investigation by tipping off terrorists or making detainees reluctant to help.

"It just amazes me every time I have a debate with the ACLU on this," Toensing said. "What would you want, to have innocent names made public?"

Similarly, the Justice Department is resisting efforts by another federal judge in Norfolk, Virginia, to make the government turn over documents justifying the detention of Yaser Esam Hamdi, a U.S. citizen held as an enemy combatant in a military jail. (A look at the Hamdi case)

If the rulings in the Hamdi case are upheld, it could shed light on the secrecy surrounding hundreds of others detained since last fall.

Justice Department officials have defended keeping the process secret on two grounds: It protects the privacy of detainees who are innocent and it prevents al Qaeda from finding out if its operatives have in fact been caught.

Under the old rules, for example, FBI agents asking the FISA court for permission to use surveillance were required to identify suspected terrorists as agents of a specific nation.

But that often proved impossible, either because a suspect could not be linked to a specific hostile country or because the ability to make that connection hinged on court-ordered surveillance.

Officials have also said that national origin -- not ethnicity or religion -- is the main criterion used to single out detainees. The effort, therefore, does not represent racial profiling, according to the administration.


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