1. That new guy at the mosque–could he be an FBI agent fishing for something to investigate?
2. Does my librarian know something she can’t tell me?
3. If I’m being held in a federal prison, even just as a material witness or awaiting trial, could a federal agent be listening in when I talk with my lawyer?
4. Suppose my friend Khaled (who’s lived here legally for years but is not a citizen) unwittingly gave a ride to someone who was on her way to a terrorist meeting. Can the president order that he be tried in secret by a jury of military officers with no right of appeal?
5. If the president can do that to Khaled this week, will he try to do the same to citizens next week?
1. Yes, and it’s not just Muslims who need to wonder. “For the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally,” according to Attorney General Ashcroft’s “Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations,” issued May 30. Under previous guidelines, federal agents could do so only if they were following an already-developed lead or conducting an investigation. Now they can fish for leads. As ACLU legislative counsel Marvin Johnson points out in a June 5 analysis, “This was the same basis upon which the FBI sent agents into churches and other organizations during the civil rights movement, and then attempted to block the movement….So long as there is a claimed anti-terrorism purpose, nothing in the Ashcroft Guidelines imposes any judicial control, FBI Headquarters control, or even Special Agent in Command control over this activity.”
2. She might. If the FBI has asked her to turn over a list of books you’ve checked out, she can’t tell you without breaking the law–specifically Section 215 of the USA Patriot Act–and she’s not even allowed to tell anyone that the FBI has paid her a visit. The House Judiciary Committee has been unable to find out how many such subpoenas have been issued; an assistant attorney general calls the information “confidential.”
3. Yes, under the Bureau of Prisons interim rule of October 30, 2001, federal agents can listen in without getting any kind of court approval first. They are supposed to let you know. But if they get a court order, they don’t even have to do that.
4. Yes, according to a “military order” President Bush issued November 13, 2001, if the president has “reason to believe” that Khaled “aided or abetted…acts of international terrorism, or acts in preparation therefor.” (According to the order, “terrorism” includes any acts that “threaten to cause, or have as their aim to cause …adverse effects on the United States.”) On the president’s say-so, Khaled can be tried in secret, on secret evidence, with no right to appeal to “(i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.”
5. He already has. The government is holding two American citizens–Jose Padilla and Yasser Hamdi–claiming that they are “enemy combatants.” The U.S. Justice Department says that no civilian court has the right to review the government’s decision to define them as enemy combatants, and that once so defined they have no right to a lawyer or a hearing.
Art accompanying story in printed newspaper (not available in this archive): illustration/Mike Werner.