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home > resources > archive > archive ACLU Reporter: Winter 2002 Printable pdf version >> Table of Contents: 2002 Winter Games Protest Guide ACLU Challenges New Police Powers ACLU of Utah Sues Alcohol Board Over Secret Meetings _________________________ 2002 Winter Games Protest Guide The Utah Winter Olympics will be held in several different cities and counties, and each venue area has adopted a different demonstration plan. In an effort to inform potential demonstrators of the various ordinances that may apply in each Olympic venue area, the American Civil Liberties Union of Utah has created the following informational chart. Each of the major venue city and county demonstration ordinances are summarized below along with the relevant contact information for each venue area. Please contact the ACLU of Utah at (801) 521-9862 ext 103 or aclu@xmission.com if you have any questions about applying for a permit for free speech activities or if you are having difficulty obtaining a permit for your planned demonstration. Also, we are currently compiling a packet of final demonstration ordinances. If you would like to review a copy of any of the venue city/county ordinances, please contact our office.
* Permit Fee will be waived upon showing of inability to pay ** Clean- up deposit will be waived upon showing of inability to pay _________________________ ACLU Challenges New Police Powers Compiled by Cori Sutherland, Deputy Director The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment IV, The Bill of Rights Over the past four months, the United States Department of Justice has sought and obtained broad new police powers. Established with the stated goal of more effectively investigating the September 11 attacks and preventing future acts of terrorism, these powers extend to routine criminal investigations unrelated to terrorism and seek to permanently alter our concepts of due process and privacy in our criminal justice system. It will be difficult to monitor and evaluate the government’s use of these extraordinary new law enforcement powers. Provisions in the USA Patriot Act, as well as powers granted recently by executive order, weaken the traditional oversight function of the courts and undermine our democratic system of checks and balances. Despite the magnitude of these changes, very little public discussion has taken place. To the contrary, there has been an alarming disregard for our political process and the public participation it requires. Throughout this relatively short period of time, the American Civil Liberties Union and other organizations have tried their best to generate public debate, and have raised their concerns about the constitutionality of these proposals with congressional and administration leaders. In the next few years, we will find out how the government uses its extraordinary new law enforcement powers, and many of the constitutional shortcomings will be evident at the local level. In the meantime, those who care about the landscape of civil liberties must keep close track of these developments. Following is a summary of what has been passed, proposed, or practiced, as well as a brief outline of ACLU concerns. Military Tribunals On November 13, President Bush issued a “Military Order” providing for potentially indefinite detention of any non-citizen accused of terrorism, and permitting trial of such defendants in a military commission with a provision precluding all judicial review. The order applies to non-citizens in the United States, most of whom are legal residents, and to any other non-citizen anywhere else in the world. Such military commissions bypass the criminal justice system, its rules of evidence, and its constitutional guarantees, and would afford few, if any, of the protections available in the ordinary military justice system. At the Pentagon’s discretion, trials can be conducted in secret and evidence can be introduced without the defendant being able to confront it. Only two-thirds of the military officers on the tribunal’s jury need find a defendant guilty, and the order provides for no meaningful appeal, even in cases involving the death penalty. The President’s order raises serious constitutional concerns. It permits the United States criminal justice system to be swept aside merely on the President’s finding that he has “reason to believe” that a non-citizen may be involved in terrorism. In addition, it circumvents the basic statutory requirement that non-citizens suspected of terrorism must be charged with a crime or immigration violation within seven days of being taken into custody, and that such detainees have full access to the federal courts. The Investigation The government has been unwilling to disclose basic information about the people who have been detained. Since September 11, the Department of Justice has apparently used secret proceedings, gag orders, and material witness warrants to arrest and detain hundreds of individuals. Little is known about their current situation, except that there have been reports that some detainees have been denied fundamental due process rights in their attempts to contact lawyers and family members. The ACLU and others are especially concerned for the detainees who are being held on immigration charges. The public has virtually no information about their whereabouts, and unlike defendants in criminal cases or persons held as material witnesses, those who face immigration charges are not entitled to counsel at government expense if they cannot afford an attorney. Restrictions on telephone access, contact with family members, and visits by pro bono lawyers and organizations that offer free legal representation impose practical impediments that deny detainees the opportunity to find or retain counsel. On October 17, the ACLU asked the Department of Justice for information on the detainees, including their name, their number, their nationality and ethnicity, the criteria for requesting secret proceedings, the number of gag orders, the basis for detention, and the time detained before charges are filed. The basic information that the ACLU and other citizen’s groups have been requesting is not classified or privileged and should be a matter of public record. On December 5, the ACLU and other civil rights and human rights organizations filed a lawsuit requesting the disclosure of this information. The government has now released the names of 93 people who have been charged with federal crimes but has not said where they are being held, nor provided any information about any of the people arrested on state or local charges who were also included in the 1200 arrests. The government has begun questioning 5,000 men based on their country of national origin. On November 9, the Attorney General directed the FBI and other law enforcement officials to conduct interviews of at least 5,000 men, 10 to 33 years old, who have entered the United States on non-immigrant visas in the past two years and come from countries where terrorist activities are known or believed to occur. The DOJ’s list was compiled solely on the basis of national origin, since it acknowledges that it has no basis for believing that any of the thousands of young men on this list even has any knowledge relevant to the investigation. With hundreds of people already in jail for minor immigration violations, these interviews will understandably be seen as coercive rather than voluntary. This is especially true since the DOJ guidelines for conducting the interviews specifically instruct the interviewer not to inform the person of his Miranda rights, should that be a relevant consideration. The ACLU maintains that discriminatory, dragnet profiling should not be a substitute for the constitutional requirement of individualized suspicion of wrongdoing. The government has issued a regulation permitting the recording of protected attorney-client conversations. On October 31, the Attorney General announced, under “emergency authority,” a regulation permitting the Department of Justice to eavesdrop on confidential attorney-client conversations in any case in which the Attorney General finds that there is “reasonable suspicion” to believe that a particular federal prisoner “may” use communications with attorneys or their agents “to further or facilitate acts of terrorism.” Without judicial oversight and with no meaningful standards, the Justice Department will decide when to eavesdrop on the confidential attorney-client conversations of a person whom the Justice Department itself may be seeking to prosecute. This regulation applies not only to convicted prisoners, but to all persons in the custody of the Department of Justice, including pretrial detainees who have not yet been convicted of any crime and are presumed innocent, as well as to material witnesses and individuals who are being held on suspected immigration violations and who are not accused of any crime. The ACLU and others maintain that attorney-client privilege is the essential bedrock of the Sixth Amendment right to the assistance of counsel, since the ability to communicate privately with counsel assures that a defendant’s lawful preparations for trial are secure against intrusion by the government. Separate and distinct from the Sixth Amendment rights of persons facing criminal charges, prisoners have a constitutional right of access to the courts. The USA Patriot Act On October 26, President Bush signed the USA Patriot Act into law. In Congress for less than 6 weeks and passed with little opportunity for public input or debate, this 342-page bill makes changes to over 15 different statutes. Although some of the most controversial provisions in the USA Patriot Act contain four-year sunset clauses, there are no reporting requirements to Congress or the judiciary that will enable Congress to knowledgably evaluate their implementation. The USA Patriot Act poses several constitutional concerns that have not yet been directly addressed by the courts, specifically: The USA Patriot Act allows for the indefinite detention of non-citizens who are not terrorists on minor visa violations. Non-citizens ordered removed on visa violations could be held indefinitely if they cannot be deported because they are stateless, their country of origin refuses to accept them, or because they would face torture in their country of origin. The USA Patriot Act lowers the standard for Internet surveillance by law enforcement authorities. Law enforcement agents can easily obtain court orders requiring telephone companies to reveal the numbers dialed to and from a particular phone simply by certifying that the information to be obtained is “relevant to an ongoing criminal investigation.” Law enforcement can use this low threshold of proof only for phone numbers, and they must have probable cause in order to intercept the content of voice and data communications. The USA Patriot Act extends this very low level of proof to Internet communications that are far more revealing than numbers dialed on a phone, and to portions of e-mail communications that, unlike with telephone communications, cannot be readily separated from content. The USA Patriot Act permits the use of intelligence investigative authority to bypass normal criminal procedures. Surveillance authorized under FISA (the Foreign Intelligence Surveillance Act) does not contain many of the same checks and balances governing surveillance for criminal investigations. Prior to the passage of the USA Patriot Act, FISA surveillance could be used only when foreign intelligence gathering was the “primary” purpose of an investigation. The new law allows the use of FISA surveillance authority even if the primary purpose is a criminal investigation and intelligence surveillance is merely a “significant” purpose. Consequently, we now have the situation in which law enforcement can search for evidence of a crime without probable cause. The USA Patriot Act expands the ability of the government to conduct secret searches in anti-terrorism investigations and in routine criminal investigations unrelated to terrorism. The act allows law enforcement agencies to delay giving notice when they conduct a search. This means that the government is now allowed to enter a house, apartment, or office with a search warrant when the occupant is away, search through her property and take photographs, and, in some cases, seize physical property and electronic communications, all without telling the occupant until later. The USA Patriot Act gives the Attorney General and the Secretary of State the power to designate domestic groups as terrorist organizations and deport any non-citizen who belongs to them. Under the new law, there is a serious risk that truly innocent individuals could be deported for association with political groups that the government later chooses to regard as terrorist organizations. There would be no notice. The USA Patriot Act grants the FBI broad access to sensitive business records about individuals without having to show evidence of a crime. The act goes beyond its stated goal of shutting down financial resources used to further acts of terrorism. Financial institutions are now required to monitor daily financial transactions even more closely and to share information with federal agencies, such as the CIA. The law also allows law enforcement and intelligence agencies to get easy access to individual credit reports in secret, and does not provide for judicial review of these requests or mandate that law enforcement give notice before reviewing financial records. The USA Patriot Act allows student records to be searched based on a very low standard of relevancy to an investigation. When the changes in federal law dealing with student records are combined with other information-sharing provisions contained in the new law, it becomes clear that highly personal student information can now be transmitted to federal agencies without any particularized suspicion of wrongdoing. Additional information is available at www.aclu.org/safeandfree. _________________________ ACLU of Utah Sues Alcohol Board Over Secret Meetings By Stephen Clark, Legal Director Open and accountable government is a cornerstone of our democracy. One such law is the Utah Open and Public Meetings law. That law generally requires that the public’s business be done in open meetings with advance notice to the public. Unfortunately, public agencies and officials sometimes are either unfamiliar with or act in disregard of the law, and in the last few years the ACLU has had to file several lawsuits based on violations of the law. In October, the Utah Alcoholic Beverage Control Commission violated the Open and Public Meetings law when it conducted telephonic meetings to discuss proposed rules governing liquor advertising in Utah without adopting or following proper procedures and without notifying the public or giving interested citizens an opportunity to participate in its deliberations. The ACLU quickly filed a lawsuit on behalf of The Salt Lake Tribune, which had exposed the illegal meetings, the Utah chapter of the Society of Professional Journalists, and John Saltas, publisher of Salt Lake City Weekly. The lawsuit sought a declaration that the Commission had violated the law and asked that any action taken in the illegal meetings be held void. In addition to filing the lawsuit, the ACLU sent a letter to Attorney General Mark Shurtleff asking him to take steps “to remind State officials, agencies and political subdivisions of their responsibilities under the law so that public confidence can be restored, maintained and strengthened.” The day after the ACLU filed suit, the Commission met in a properly noticed meeting, with several members of the public in attendance. At that legal meeting it revised what it had done in the earlier illegal meetings, which only underscored the importance of doing the people’s business in the light of day. The Commission later admitted it had violated the law and promised to adopt proper procedures and to otherwise comply with the law in all future meetings. The Attorney General also promised to take specific steps to ensure that all public agencies and officials covered by the law are aware of its provisions and committed to complying with them. In short, thanks to a vigilant press and the quick action of the ACLU, the Utah Alcoholic Beverage Control Commission, all other state agencies and officials and members of the public received a refresher course in the Open and Public Meetings law and the importance of open and accountable government. The ACLU is committed to ensuring that all laws intended to foster open and accountable government be understood and followed so that the public can know what its representatives are doing. Return to top of page |
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