Constitutional Issues: At A Glance

Posted: Monday, June 17, 2002

Some of the constitutional issues arising from the government's response to the Sept. 11 attacks:

FIRST AMENDMENT (freedom of speech, press, assembly, religion):

New government guidelines give the FBI greater authority to monitor Americans at religious services and other public meetings. Some civil libertarians say that will have a chilling effect on open political speech and religious expression.

Federal district courts in New Jersey and Michigan this year have ruled against the government's closed immigration hearings for people detained in the terrorism investigation, based on First Amendment challenges. But a New Jersey state appeals court ruled the government could not be forced to release names of detainees.

American John Walker Lindh, charged with conspiring to murder Americans, providing services to the Taliban and al-Qaida and using firearms during crimes of violence, argues his decision to join Taliban fighters was ''First Amendment protected activity -- speech, assembly, petition, and the exercise of religion.''

Some critics of the anti-terrorism Patriot Act enacted last fall worry that its definition of ''domestic terrorism'' is so broad it could extend to political groups that are distant from terrorists.

FOURTH AMENDMENT (ban on unreasonable searches and seizures, probable cause):

New regulations allow indefinite imprisonment of noncitizens, even if an immigration judge has ruled there is no evidence to justify holding them.

Islamic groups complained in March about raids on homes and businesses in Virginia and Georgia that were part of an effort to cut off terrorist financing but produced no arrests.

The Patriot Act gives federal agents broad new powers to detain immigrants, eavesdrop on telephone calls and e-mails, and share sensitive details of criminal investigations with the CIA. It makes it easier to obtain sensitive financial, student and medical records.

FIFTH AMENDMENT (right to due process, equal protection):

American Jose Padilla is being held indefinitely in South Carolina as an ''enemy combatant'' after being switched to military custody. He is suspected of intending to explode a radioactive dirty bomb but has not been charged. The fact he was transferred from proceedings in federal court in New York may raise Fifth Amendment concerns. His lawyer contends he is being held illegally.

Military tribunals proposed for Taliban and al-Qaida fighters could put accused terrorists on trial more quickly and in greater secrecy than an ordinary criminal court, and without traditional due process protections. No Americans would face a tribunal.

A Boston cab driver who is from the Middle East, originally described as a terrorist suspect, was held for eight months without seeing a lawyer or judge. Nabil Almarabh, finally charged last month with trying to enter the country illegally, could end up with a sentence shorter than the time he has already spent in solitary confinement.

A class-action lawsuit filed on behalf of hundreds of Middle Eastern men detained on immigration charges alleges widespread abuse of the men and that they have been denied due process protections. It also raises Fourth Amendment concerns.

A government plan to require roughly 100,000 new visitors each year to provide fingerprints, photographs and details about their plans in the United States raised concerns among some lawmakers about possible racial and ethnic profiling.

A New York federal judge in April threw out a perjury indictment against a 21-year-old Jordanian college student who knew two of the Sept. 11 hijackers. The judge declared that the government's practice of jailing material witnesses in the Sept. 11 grand jury investigation is unconstitutional.

The government sought voluntary interviews with thousands of foreign visitors in the United States, generating allegations of ethnic profiling.

SIXTH AMENDMENT (Right to lawyer)

The government argues that American-born prisoner Yaser Esam Hamdi, captured in Afghanistan and jailed in Norfolk, Va., can be held indefinitely and is not entitled to a lawyer. A federal judge ordered that Hamdi be allowed to meet with a federal public defender. The ruling is under appeal.

Padilla's lawyer says she has been unable to see him since he was transferred to military custody.

New government rules allow investigators to eavesdrop on phone calls and read mail between defense lawyers and some federal terrorist suspects as well as others detained but not charged with a crime.

--The Associated Press

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