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The State of Civil Liberties

Now fast-forward to 1995. The Oklahoma City bombing had killed 168 people. Public pressure mounted for President Clinton and Congress to "do something" to prevent domestic terrorism. After a year of deliberation, Congress passed a new anti-terrorism law giving the government new tools to conduct surveillance and detain suspicious individuals. More worrisome was the fact that many of these new enforcement powers were insulated from meaningful judicial oversight.

Within a few short months following passage of the 1996 anti-terrorism law, Congress enacted two additional laws focused on immigrants and prisoners. These laws once again shielded executive authority from review by neutral judges.

This trilogy of laws passed in 1996 set in motion a dangerous trend in which the framers' view of the judiciary as an essential instrument of accountability is being replaced by a totally opposite view - one in which the judiciary is treated as an inconvenient obstacle to executive action. For example, the 1996 immigration law restricted judicial review of a range of executive branch decisions regarding legal and undocumented immigrants.

Let's move to the current situation - the aftermath of September 11. After barely merely a month and a half of deliberation, Congress, with the strong support of the President, passed a complex, hastily drafted 342-page piece of legislation known as the USA PATRIOT Act.

Unfortunately, many of the Act's provisions further undercut the role of the judiciary, in some cases limiting judicial review of law enforcement activities altogether, or creating the illusion of judicial review while transforming judges into rubber stamps of administrative actions.

During Congressional deliberations, the ACLU did succeed in getting accountability measures included in the House bill. However, the victory was short-lived since these provisions were removed under pressure from the Administration. The new law, therefore, preserves the fullness of law enforcement powers, but substantially weakens the safeguards against abuse.