This has been an extraordinary week for those who have been watching the intersection of national security and civil liberties since 9/11/01. First the Supreme Court determined that prisoners at Guantanamo have a right to challenge their detention in a civilian court. Then, the House of Representatives agreed on a sweeping update to the Foreign Intelligence Surveillance Act. In between, the European Parliment approved a set of laws governing the detention of illegal immigrants. It will take the lawyers and scholars a long time to digest all of this, but the game has changed, with great political cause and effect.
With a 5-4 decision in the case of Boumediene v Bush, the Supreme Court decided that non-US citizens held outside of the US are entitled to access to federal courts to challenge judicial review procedures relative to detention. To civil libertarians this is a major victory for the individual over the arbitrary power of the state. To the politicians it becomes a platform to discuss who will keep us safer, and the importance of who makes the next Supreme Court appointment. But, the thorny issue really turns on the procedures to be used by a court - civilian or military - in determining legitimacy of incarceration. Here we need to also look at both the possibility of releasing unrepentant terrorists, and the upstream impact on the intelligence community of requiring informants to come forward to be cross-examined. It is not by chance that between 1988 and 2003, there were at least 20 incidents of terrorism against American interests killing some 850 people, aside from the 9/11 attacks, and that there have been none since. It is not about whether we call people "illegal enemy combatants" or some other term, it is whether we have the right procedures to make sure that we have the right people.
After almost six months of wrangling, the House has largely agreed (and the Senate is expected to follow) with the White House's proposals to update the Foreign Intelligence Surveillance Act. Among the provisions: individual warrants will no longer be required to monitor purely foreign communications passing through American switches; prior court approval is required for procedures to monitor foreign communications; and, individual court orders are required to monitor Americans outside the US, but a 7 day exception is allowed for "exigent" circumstances. Most importantly to the trial lawyer lobby, telephone companies were given effective immunity for their cooperation with the administration in the period after 9/11. The Democrats apparently decided that restrictions on intelligence gathering were a political liability in an election year.
Finally, to keep the European civil libertarians busy, the European Parliment has standardized rules (to become effective later this year) which would allow incarceration of illegal immigrants, including families, for up to 18 months at specialized facilities. With an estimated 8 million illegal immigrants in the EU, myriad poorer countries on the periphery, free passage between the member states, and a patchwork of national rules, it has become necessary to control who is in, as Europe looks to harmonize general labor laws. The problem with our southern border pales in comparison.
When later generations of historians look back at the major issues of our times, they will want to look closely at the middle of June, 2008.