The USA PATRIOT Act has sparked intense public debate, with proponents claiming that the Act is a necessarily hard-minded response to a national crisis, while opponents see unwarranted, even opportunistic, expansion of state power. Perhaps no provision of the Act has generated more controversy than §215, which authorizes the FBI to seek a court order compelling the production of “any tangible things” relevant to certain counterintelligence and counterterrorism investigations. Like many other provisions of the USA PATRIOT Act, §215 will expire on December 31, 2005, unless reauthorized by Congress. The controversy, therefore, is likely to intensify over the coming months.
In two cases decided on June 28, 2004, the Supreme Court emphatically upheld the rule of law and the right of those being detained as part of the war on terrorism to have access to the courts. In Rasul v. Bush, the Court held that those being detained in Guantánamo Bay, Cuba are entitled to have a habeas corpus petition heard in federal court. In Hamdi v. Rumsfeld, the Justices declared, by an 8-to-1 margin, that an American citizen apprehended in a foreign country and held as an enemy combatant must be accorded due process, including a meaningful factual hearing on his status.
Humberto Alvarez-Machain, a Mexican national, was kidnapped in Mexico and brought to the United States at the behest of US Drug Enforcement Administration (DEA) agents for allegedly assisting in the torture and murder of a DEA agent in Mexico. He challenged the jurisdiction of US courts to try him, arguing that his illegal seizure barred the trial. The Supreme Court rejected that contention, holding that “the power of a court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’” This writer was one of the few who supported the Supreme Court’s decision sustaining jurisdiction, arguing that it was consistent both with international law and with the Fourth Amendment.