The War on Terrorism: Law Enforcement or National Security?

February 15, 2005

George J. Terwilliger III, Theodore Cooperstein, Shawn Gunnarson, Daniel Blumenthal, Robert Parker

George Terwilliger*
Theodore Cooperstein**
Shawn Gunnarson***
Daniel Blumenthal****
Robert Parker*****

The horrific events of September 11th were immediately labeled "acts of terrorism," but as events unfolded, they were quickly revealed as "acts of war." The anthrax attacks that followed were surely acts of terrorism, but not necessarily acts of war by a foreign belligerent. As of this writing, investigators have been pursuing the possibility that the anthrax attacks are acts of domestic terrorism with no organizational links to those who engaged in the acts of war on September 11th.

Federal officials face the unprecedented situation of having to respond immediately to crisis events that are both war and crimes. This new paradigm of warfare has blurred the previously more-or-less clear line between national defense and law enforcement. And the idea of national defense is changing to encompass a broader range of threats than historically posed by a warring nation-state.

Historically, "war" has been only between states. ("Every contention by force between two nations, in external matters, under the authority of their respective governments.") [1] Except for civil wars, acts of individuals and groups not qualifying as states have been deemed crimes either against the law of a particular state or violators of the "law of nations," e.g. piracy (much terrorism has been state-sponsored). [2] This country's initial legal response to terrorism in the 1980s was a law enforcement approach which extended the jurisdiction of the United States to criminal acts against Americans abroad. [3]

The realization, however, that non-state and clandestinely state sponsored groups now have the ability and willingness to employ means of mass destruction has dictated the recognition that states no longer have a monopoly on war. Therefore, it has become appropriate to use war powers against foreign terrorist organizations. Using those war powers against foreign terrorists operating within the United States calls for an understanding of when actions of force or terrorism by non-state groups should be treated pursuant to national security powers, rather than within the domain of law enforcement. [4]

The use of national security powers against groups of foreign belligerents found within the United States raises dangers which could result from militarizing the homeland. [5] Nevertheless, as the Framers intended, the Constitution both gives the federal government all the powers necessary to defend the country, [6] and also limits the possibilities for abuse of those powers through separation of powers and federalism. [7] It is understandable that the initial response to the unprecedented attacks within the U.S. by foreign forces on September 11th emphasized centralized command and control. As we adjust to the new reality, an effective national security strategy requires a range of responses based on recognizing the relationship between:

1) national security powers and law enforcement powers;

2) the rights of citizens and non-citizens; and

3) centralized and decentralized defenses.

I. INTERNATIONAL TERRORISM IS A MATTER OF NATIONAL SECURITY, RATHER THAN MERELY CRIMINAL LAW ENFORCEMENT

Debate about particular anti-terrorism measures often rests on an incomplete understanding of the constitutional principles involved as well as on an over-judicialization of political and policy issues. Our national leaders have a constitutional responsibility to secure the country from foreign threats, and the Framers of our Constitution often referred to this obligation during the Philadelphia convention, in The Federalist Papers, and elsewhere. Indeed, the Preamble to the Constitution makes this very point when it states that the Constitution was ordained and established to "insure domestic tranquility" and "provide for the common Defence." In other words, we must not only account for the traditional rights that citizens enjoy, but also the broad national security power that the Constitution grants to the government to take action against unlawful belligerents acting on U.S. soil. Resolution of the significant constitutional questions raised by measures to address the current terrorist threat thus requires a clear understanding of both the powers that the Constitution grants to the government when national security is at stake, and the circumstances in which the exercise of those powers do and do not infringe our civil liberties. This is consistent with how the Framers viewed our Constitutional system - namely, that structural issues are inextricably intertwined with questions relating to the protection of freedom.
It is axiomatic that the federal government has all the constitutional power necessary to defend the nation, whether the threat comes from foreign attack or from the breakdown of internal order. As Alexander Hamilton wrote in Federalist No. 23, the powers of the federal government to provide for the common defense are complete.

These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defense.

This "truth," according to Hamilton,

rests upon axioms as simple as they are universal. The means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained. [8]

The Supreme Court has confirmed Hamilton's view that the Constitution confers on the federal government an "independent substantive power" with respect to national security, and specifically with respect to the "persons or property of [an] enemy found, at the time, within the territory" of the United States. [9] Providing for the security of one's country is an inherent feature of national sovereignty, and the Constitution expresses or confirms that fairly obvious point by vesting in a President the general Executive power under Article Two. [10]

In previous wars, except the Civil War, a fairly discernable line has existed between external defense and internal police. Thus, the Supreme Court has distinguished "between the powers of the federal government in respect to foreign or external affairs and those in respect of domestic or internal affairs." [11] This same division has passed a law that limited presidential use of military forces for domestic law enforcement to situations in which ordering means of law enforcement could not restore order. [12] During the Civil War and Reconstruction, Congress expanded the internal use of military forces. In 1878, after the domestic crisis had passed, Congress enacted the "Posse Comitatus Act," [13] which prohibits the use of the military (expressly, just the Army and Air Force) to execute the laws of the United States, the states or the territories, except as specifically provided. [14]

The federal government does have law enforcement powers, but those powers have limits. In particular, the federal government has no general police power. [15] Congress must find the source for enacting criminal law either in particular enumerated powers or in the means necessary to implement those powers. [16] In matters of national security, on the other hand, the powers of the federal government are broader. The Constitution grants to the Executive and Legislative Branches, as the preamble announces, specific powers to "insure domestic Tranquility and provide for the common Defence." Most notable and relevant for present purposes is the power of the Congress under Article I, section 8 to declare war, but also its power to "define and punish . . . Offenses against the Law of Nations" and to "make Rules concerning Captures on Land and Water." Likewise, the role of the President, under Article II, section 2, as the "Commander in Chief of the Army and the Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" reflects the Constitution's grant of authority to the Executive Branch to address threats to national security independent of the President's separate role as chief magistrate and prosecutor of criminal laws.

This constitutional authority to provide for the national defense and to protect national security in the face of enemy attack extends not only to the conduct of war by traditional military means, but also to the treatment of individuals who prosecute the attack on the enemy's behalf. "An important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war." [17]

The authority that the Constitution confers on the federal government to prosecute the enemy by all appropriate means applies to the enemy found at home as well as those encountered abroad. [18] Quirin concerned a group of saboteurs who were landed by German U-boats on U.S. beaches during World War II. Their assignment from the German military authorities was to destroy military targets and war-production facilities on the U.S. home front. All of the saboteurs were Germans except one, Haupt, who claimed to be a naturalized U.S. citizen. After capture by the FBI, the belligerents were placed in military custody. Pursuant to an Executive order, they were tried by a military commission, which found them all guilty and sentenced them to death. They then filed petitions for writs of habeas corpus, challenging the authority of the military tribunal, and the tribunal's denial to them during its proceedings of the Constitutional rights specified in Article III and the Fifth and Sixth Amendments.

The Supreme Court upheld the military commission's authority. The Court concluded that the President, as Commander-in-Chief, has the power to enforce all laws relating to the conduct of war, "and to carry into effect . . . all laws defining and punishing offenses against the law of nations including those which pertain to the conduct of war." [19] This power, the Court held, includes the authority "to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." [20]

The Court likewise rejected the would-be saboteurs' claim to the traditional constitutional rights enjoyed by an accused in the criminal justice system. The Court concluded, first, that the saboteurs were not criminal defendants, but rather were unlawful belligerents accused of violating the laws of war. "[A]n enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, is familiar examples of belligerents who are generally deemed . . . to be offenders against the law of war subject to trial and punishment by military tribunals." [21]

The Court next rejected the unlawful combatants' claim that, having been captured by FBI agents on U.S. soil, they enjoyed constitutional rights under Article III and the Fifth and Sixth Amendments. "We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury." [22]

Finally, the Court in Quirin readily rejected Haupt's claim of constitutional rights by virtue of his purported U.S. citizenship. U.S. citizenship, the Court held, "does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war." [23] By virtue of his allegiance to a foreign enemy and his taking up arms on behalf of that enemy, therefore, Haupt was subject to military punishment, rather than criminal justice.

This distinction between an unlawful belligerent and a traitorous civilian is well-grounded in constitutional precedent, and can be viewed as the definitive boundary between the government's national security power and its law enforcement authority. In Ex Parte Milligan, [24] the Court considered the conviction by a military tribunal of a U.S. citizen, resident in Indiana, who was accused of conspiring to aid the cause of the Confederacy, then at war with the United States. The Court unanimously overturned the conviction. Although the Court divided on the question of the tribunal's authority, [25] it concluded that "no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in no wise connected with the military service." [26] The Court in Quirin thus recognized that Milligan presented a different case, and raised different constitutional questions, than did the case before it. [27] We can draw from Quirin and Milligan, therefore, a clear distinction between a belligerent who threatens the national security at the service of a foreign enemy, and a civilian whose crime -- although it may involve aiding and abetting an enemy in time of war -- is subject to the jurisdiction of traditional law enforcement (rather than military) authority. The latter, but not the former, thus enjoys the constitutional protections of an accused, though fraudulent acquisition of citizenship would not afford a belligerent these constitutional protections (a point that is further discussed in the next section). [28]

The assessment of anti-terrorist measures, both those already enacted and those considered for future implementation, should not be examined exclusively through the lens of the government's traditional law enforcement powers. To the extent that anti-terrorist measures are directed at protecting our nation's security from those in the active service of our enemies, then the government may exercise a constitutional authority that is separate from and independent of its law enforcement powers. The exercise of that authority is not an infringement on the constitutional rights of civilians under Article III or the Fifth and Sixth Amendments, but a vindication of the citizens' collective grant of the powers of defense to the national government.

II. MEANINGFUL DISTINCTIONS EXIST BETWEEN CITIZENS AND NON-CITIZENS IN THE LAW OF THE CONSTITUTION

A. Citizens at Home Enjoy the Broadest Constitutional Protections Against the Federal Government

An American citizen or national is entitled as a constituent of the American polity to the protective restrictions the Constitution imposes on the United States government. Law enforcement accordingly is held to requirements of reasonableness and probable cause in performing searches and seizures against United States nationals. [29]

At the international borders or their functional equivalents, Executive power to stop and search both citizens and aliens is plenary. [30] "It is undoubtedly within the power of the Federal Government to exclude aliens from the country." [31] The plenary power stems from the interest of national self-protection is available not only at the formal border crossing, but also at functional equivalents such as international airports, or crossroads within a 'reasonable' distance from the border. [32]

The United States Government must also follow established procedures and afford constitutional due process when trying (civilian) U.S. citizens abroad. Yet even this rule need not be absolute. For instance, in occupied military zones the particular application of the War Power may be constitutionally permitted. [33] More recently, a District Court has ruled that the al-Qaeda terrorist network qualifies as a "foreign power" so as to permit the Foreign Intelligence Exception to the Fourth Amendment warrant requirement and allow the overseas search of an American working for that foreign power. [34]

Moreover, foreign governments are not bound by the Constitution unless there is an active collaboration with United States agencies. Acts of a foreign government within its own territory against United States citizens are not subject to the limitations of the Constitution. [35] Accordingly, United States officials and agencies are free to accept and make use of any truly independent assistance or information offered by other nations without regard to the methods or sources by which it was obtained.

B. Non-Citizens Enjoy Lesser Protections Under the Constitution

When operations focus on aliens abroad, the legal constraint under the Constitution is the least certain. The citizenship status of the person significantly affects the obligations and restrictions of the United States actors towards individuals overseas. In contrast to the alien lawfully resident in the United States, "there are different expectations of treatment than when a non-resident alien is simply affected by United States officials abroad. In the former instances, the United States has the power to, or has in fact imposed the framework of its government process on the non-resident alien. … [But when the alien] is harmed in his own country, he cannot and should not expect entitlement to the advantage of a United States court." [36] The "purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory." [37]

The Supreme Court has similarly "rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." [38] In times of war, domestic application of the Fifth Amendment to nonresident aliens is not presumed: "Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security. … The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a 'declared war' exists." [39]

The controlling precedent concerning the Fourth Amendment's application to aliens outside the United States is United States v. Verdugo-Urquidez. [40] Verdugo-Urquidez was indicted on drug charges under United States law, when he was a Mexican citizen residing in Mexico. Mexican police officers delivered Verdugo-Urquidez to the United States border, where he was arrested and charged. Agents of the U.S. Drug Enforcement Administration (DEA), with the permission and assistance of the Mexican federal police, conducted searches of Verdugo-Urquidez's two houses in Mexico, obtaining documents evidencing Verdugo-Urquidez's drug smuggling.

On Verdugo-Urquidez's motion to suppress the documents, the District Court ruled the Fourth Amendment applied to the searches conducted in Mexico, and that the DEA agents had no cause to conduct those searches without a warrant. [41] The Court of Appeals for the Ninth Circuit affirmed, ruling that the searches were subject to the Fourth Amendment, and therefore unlawful without a warrant or exigent circumstances. [42]

The Supreme Court reversed, holding that the Fourth Amendment does not apply to the search and seizure of a nonresident alien's property outside of the United States. [43] Both the majority opinion and the dissent recognized that the Fourth Amendment applied to protect American citizens, without regard to territorial restriction. [44] While other provisions of the Bill of Rights, such as the Fifth or Sixth Amendments, establish procedural trial rights which inure to a person who becomes a criminal defendant in United States custody, the Fourth Amendment's restrictions on search and seizure protect a right of "the people" as opposed to any person or any accused. A search and seizure can violate these restrictions prior to, or even absent, a trial or conviction. [45] It therefore made no difference to a Fourth Amendment analysis, despite the dissent's protest to the contrary, whether Verdugo-Urquidez was within or without the United States, or in custody, at the time the agents searched the Mexican properties. A judicial warrant would have had null effect outside the United States. [46] But a requirement to obtain a warrant, implied by application of the Fourth Amendment, would have pernicious effect on United States operations overseas, including, the Court feared, military operations. [47] The Supreme Court accordingly reversed the two lower courts' opinions.

The Supreme Court dissent noted that "non-law enforcement activities, not directed against enemy aliens in wartime but nevertheless implicating national security" [48] should not suffer impairment under the Fourth Amendment. "Many situations involving sensitive operations abroad likely would involve exigent circumstances" and thus not need a warrant. [49] Thus both the dissent and the majority in Verdugo-Urquidez leave open the possibility that intelligence collection and operations overseas can proceed without constitutional burden, on the significant, if unstated, assumption that the intent remains unchanged throughout the investigation to collect information solely for intelligence purposes. But the dissent's analysis seems necessarily to rely on the continued dichotomy between intelligence and law enforcement in distinguishing the Fourth Amendment's applicability to either function. In today's world, where the line between crime and war has been blurred by mass murder of civilians in attacks upon nations by unlawful belligerents, the dichotomy between gathering "intelligence" in support of national defense and obtaining evidence in support of law enforcement is less clear than the dissent might have supposed.

Similar considerations govern seizures, as well as searches, of aliens abroad. Since the Nineteenth Century it has been held that United States courts may exercise personal jurisdiction over any one properly charged and present before that court, regardless of how he found his way to that court. "[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized [sic] of the charges against him and after a fair trial in accordance with constitutional procedural safeguards." [50] The defendant can legally be tried even after plain abduction brought him to the court, whether across interstate lines, [51] or across international borders. [52] The Supreme Court most recently affirmed this principle in United States v. Alvarez-Machain. [53] While the international application of this principle is subject to the strictures of any given extradition treaty between the United States and the alien's nation of citizenship, under customary international law practice, any individual rights under an extradition treaty are solely derivative of the nation's rights. Any government must specifically object in accordance with the terms of the extradition treaty, for only governments can invoke such treaties, and the rights under them can be and frequently are waived. [54]

This does not mean that aliens would be devoid of all legal protection or safeguard. The Court in Verdugo-Urquidez left the door open to constitutional claims by aliens in this country. [55] In addition, where the Constitution and federal statutes are otherwise silent, aliens may resort to relevant international agreements such extradition treaties, treaties of friendship, commerce and navigation, tax treaties, and mutual legal assistance treaties, to the extent they are self-executing.

In conclusion, under Verdugo-Urquidez, the Fourth Amendment does not operate to protect individuals; rather it operates to protect "the class of persons who are part of a national community or who have otherwise developed sufficient connection with the country to be considered part of that community." [56] The farther an individual is removed from the "community," the less claim he has to constitutional protection. [57] Accordingly, it would be reasonable to conclude that an unlawful belligerent--even within the United States (and certainly outside the United States)--has by taking up arms against the United States so far removed himself from the national community as to forfeit Fourth Amendment rights.

C. Citizenship Procured by Fraud is Void Ab Initio and Provides No Safe Harbor

"[A]dmission to the United States [is] a privilege and [an alien] has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." [58] Congress and the Executive have clear legal powers to exclude terrorists, to remove them if they get inside our borders, and to revoke their citizenship if that citizenship was based on fraud.

Other aspects of this paper make clear that the Constitution confers ample powers on the President and Congress to defend the nation from international terrorists on U.S. soil. This portion addresses why aliens who obtain their immigration status by fraud should be deemed without lawful status and, therefore, not entitled to the full panoply of constitutional protections accorded to United States citizens.

Terrorists frequently rely on deception and outright fraud to obtain the immigration status that allows them to enter or remain in the U.S. Ramzi Yousef, widely regarded as the mastermind behind the first World Trade Center bombing in February 1993, had been in official custody the previous September when he landed without a visa at JFK Airport. [59] After being only "briefly detained," he was released and "granted asylum pending a hearing." [60] Mir Amal Kasi, convicted of murdering two CIA employees outside the agency's headquarters in Langley, Virginia, got his visa based on false statements. [61]

In responding to the immediate threats posed by international terrorism, the wise words of Justice Robert Jackson are particularly fitting: "[T]he underlying consideration is the power of our system of government to defend itself, and changing strategy of attack by infiltration may be met with changed tactics of defense." [62]

Preventing abuse of immigration laws that are intended to welcome lawful visitors and emigrés and exclude terrorists is one important step in the war against international terrorism. Congress has made clear that aliens seeking entry or citizenship must tell the truth. An alien who lies to obtain citizenship or favorable immigration status does not deserve to remain in this country. Thus, Congress has provided that a resident alien convicted of fraud on a visa application is deportable. [63] Falsely claiming to be a citizen likewise renders a person deportable. [64] And Congress has specifically directed the Executive to revoke the citizenship of any naturalized citizen who procures citizenship by "concealment of a material fact or by willful misrepresentation." [65]

These rules are obviously fair. But what constitutional protection should be accorded an alien who has procured his presence in the United States through fraud or other unlawful act? The law generally denies the benefit of a transaction to one who procured that transaction by fraud. [66] Moreover, fraudulently obtaining immigration status or citizenship is no garden-variety fraud. It undermines the social compact, the foundation of our legal system, by falsely claiming to have entered it. Even the most ardent civil libertarian would agree that the law cannot be permitted to reward deceit and fraud. An alien who lies and cheats to enter this country simply does not deserve the same legal protections as do the millions of immigrants and visitors who obtained their status lawfully. Alien terrorists and suspected terrorists who claim constitutional protections against searches, detention and other anti-terror measures should first have their immigration status examined. If that status was obtained by fraud, misrepresentation or other unlawful means, then it should be deemed void ab initio. Such an alien should be treated under the law as if he never was lawfully admitted to the United States - because in a very real sense he was not.

Supreme Court decisions construing congressional mandates in this area leave no doubt that the Executive possesses ample powers to limit the rights of aliens who obtain citizenship or immigration status through fraud. Generally, the power to exclude aliens--including foreign terrorists and their supporters--falls well within the power of Congress and the Executive. [67] Because the power to exclude is "a fundamental sovereign attribute," [68] aliens initially seeking entry into this country lack even the right to due process. [69]

What process is due an alien who enters this country or obtains citizenship through fraud? Such a person should have no greater claim to procedural protections than an alien paroled into the United States pending a hearing on the issue of admissibility. [70] Such an alien ought to be "regarded as stopped at the boundary line and kept there unless and until her right to enter should be declared." [71]

When a naturalized citizen has committed fraud to obtain citizenship the Court has been similarly deferential to Congress, hewing to the rule of "strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." [72] In Fedorenko it held that federal courts "lack equitable discretion to refrain from entering a judgment of denaturalization against a naturalized citizen whose citizenship was procured illegally or by willful misrepresentation of material facts." [73] Indeed, the Court has gone out of its way to reject "lower court efforts to moderate or otherwise avoid the statutory mandate of Congress in denaturalization proceedings." [74] A naturalized citizen subject to a denaturalization proceeding is entitled to due process. "[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law." [75] Similar due process requirements apply to deportation proceedings, [76] although what process is due may vary with the circumstances. [77]

An alien who procures citizenship or immigration status through fraud presents a special circumstance, for which the narrowest range of due process protections ought to apply. Fair procedures should be designed for the limited purpose of determining whether an alien accused of committing fraud actually did so. An affirmative determination would cause the alien to revert by operation of law to his former non-status; he would then not enjoy the full array of constitutional protections extended to citizens and those with lawfully obtained immigration status. Defrauding the country in order to enter it makes an alien indistinguishable from those paroled aliens who have "gained no foothold in the United States." [78]

Treating aliens who procure immigration status or citizenship through fraud as if they were excludable aliens would have important implications for the war on international terrorism.

First, this "entry fiction" supports Congress's recent grant of authority to detain terrorists and terrorist suspects. Under the USA PATRIOT Act, [79] the Attorney General must detain any alien certified as a suspected terrorist. [80] The Attorney General may make this certification if he has "reasonable grounds to believe," [81] that an alien has committed specified forbidden acts associated with terrorism. To be sure, certain administrative and judicial safeguards apply. The Act requires the Attorney General to begin removal proceedings, charge the alien with a crime, or release the alien within "seven days after the commencement of such detention." [82] If an alien is held solely because he is certified by the Attorney General under the Act and his removal is "unlikely in the foreseeable future," [83] the Attorney General is authorized to continue detaining him for six-month intervals "only if the release of the alien will threaten the national security of the United States or the safety of the community or any person." [84] Furthermore, the Act directs the Attorney General to review the certification of an alien as a suspected terrorist every six months. [85] The alien may submit a written request for reconsideration every six months, and such a request for reconsideration may include "documents or other evidence in support of that request." [86] Judicial review is available only in habeas corpus proceedings, [87] and the only Court of Appeals authorized to hear appeals under the Act is the D.C. Circuit. [88] Congress has deemed these procedural safeguards to be all the process due to suspected alien terrorists. For those of that group who procured their immigration status or citizenship through fraud, this may be more process than is constitutionally required.

Second, regarding those who obtain immigration status or citizenship as excludable aliens can enhance the government's power to investigate terrorist cells in this country. The Fourth Amendment, which protects "the people" from "unreasonable searches and seizures," has been given a narrower compass when applied to aliens than to citizens. As the Supreme Court has noted, "'the people' seems to have been a term of art employed in select parts of the Constitution." [89] In particular, the Court found that the language "suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." [90] Given this interpretation, the Court held that "aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country." [91]

Verdugo supports the proposition that an alien who procures citizenship or immigration status through fraud is not entitled to Fourth Amendment rights. A person who lies to gain entry to our nation should not be deemed to have established "substantial connections with this country." [92] To suggest the contrary is inconsistent with common sense and the judicial respect for the congressional determination that aliens who lie to gain entry or citizenship should be removed. No one, simply by dint of arriving at our shores and remaining undetected for a period of time precisely because of his fraud, should be rewarded by enjoying the same rights as those who come here lawfully. Treating immigration cheats differently is consistent with the principle that immigration law in general consists of rules that "would be unacceptable if applied to citizens." [93]

It is axiomatic that a contract is void ab initio where there is "fraud in the execution," [94] meaning that one party misrepresents an agreement's "essential terms." [95] An alien who falsely claims the right to enter the United States to study, perhaps at a flight school, and then commits terrorist acts misrepresents the "essential terms" of the agreement between him and this country. It follows that the agreement to let him enter is void. He had no constitutional rights before entry. Should the law be construed to give him the benefit of his fraudulent bargain by extending him constitutional protections anyway?

III. NOT ALL FORMS OF CENTRALIZATION INCREASE SECURITY; DECENTRALIZATION CAN PROTECT BOTH SECURITY AND LIBERTY

As horrific as the events of September 11th were, the damage to the United States was not catastrophic. The unprecedented loss of life and property was actually crippling only within limited geographic areas. Certainly, the resulting economic damages have been felt nationwide, as measured in the decline of stock prices, employment rates, airline passenger traffic, consumer confidence, and corporate profits. These economic damages have been driven by fear of uncertainty and vulnerability. As tremendous and widespread as these damages have been, the enemy nevertheless has not inflicted physical damage on our far-flung defense or production capabilities. Indeed, the decentralization of people, production capabilities, and defenses across a large land mass minimizes the potential for physical damages from terrorism.

Fear, more so than physical damages, is the threat. This fear is prompted by localized concentration of populations and nationwide interconnectedness. Populations concentrate in cities, buildings, subways, stadiums, and aircraft and dispersed populations are interconnected through the mail system, water supplies, the food supply, the blood supply, and the financial system. Terrorism and the fear it generates have renewed interest in the quarantine, curfew, and the martial law powers of the states. Along with the powers of the federal government, these local powers remain an important feature of the federal system for responding to new forms of violence and threats to public health, as well as the fear of both.

Although more centralized than a century ago, the United States is still not a centralized state like France. Moreover, as long as the constitutional structure remains intact, it cannot become a completely centralized state. Efficiency experts may think that fifty states represent much wasteful duplication of governmental services. Security experts, on the other hand, can appreciate the value of so much redundancy. With fifty states, each having its own government, its own law enforcement, its own emergency response resources, the federal system as designed by the Framers gives priority to security and liberty over efficiency. [96]

A. Security and Liberty Need Not Be in Conflict

Debate over the recently enacted USA PATRIOT Act [97] was typically framed in libertarian terms as a contest between liberty and security. It has been difficult for many Americans (especially lawyers) to understand that security and liberty can be hand-maidens. Liberty and security naturally conflict in a centralized state; they need not and should not in a decentralized state such as the United States. When the Framers created a strong Executive, they faced the charge that the President's powers -- said to be equal to those of a king -- posed a threat to liberty. They responded that an energetic Executive is essential to the defense of the people's liberty, [98] a view which has been confirmed by history and the opinion of the American people. Presidents have never been more esteemed by the American people than when, acting as Commander-in-Chief, they defend individual liberty by defending the nation's security.

The President's powers as Commander-in-Chief, standing alone, do not authorize him to take action within the United States. [99] Acting under Congress' war powers, [100] the President can exercise considerably more power domestically that he could otherwise. [101] The great danger, of course, is that military actions executed domestically pursuant to the war powers - whether or not constitutional - can inflict injustice on American citizens that otherwise would not be sanctioned. [102]

Preserving both liberty and security rather than sacrificing one or the other requires wise and, therefore, non-panicked policy. Fortunately, the constitutional structure imposes restraints on the process, even when issues are not justiciable. As the recent enactment of the USA PATRIOT Act reflects, the legislative process is so constituted that it slows legislation and forces compromises in order to reach consensus. Although adopted relatively quickly following the terrorist attacks, some of the Act's important provisions had been the subject of discussion for some time. [103] As the Chairman of the National Commission on Terrorism observed in presenting the report of the Commission to the Senate Foreign Relations Committee on June 15, 2000, fifteen months before the terrorist attacks of September 11th, the lack of well-considered policy threatens civil liberties: "Our view is that in the event of a catastrophic event such as we are talking about, where you have tens of thousands of people dead, the pressures will be very great on the President and the leadership of this country to impinge on civil liberties unless they have done some contingency planning and thought it through ahead of time…." [104]

B. The Limits of Centralization and Security

Since the attacks of September 11th, the knee-jerk reaction on the part of many has been towards greater centralized control. Underlying this reaction is the mistaken assumption that greater centralization would have prevented the attacks. The argument in favor of centralization ignores the consequences of concentration of power, which can be to escalate the damages if an attack is not prevented. Suppose the United States were as completely centralized as France, with all powers concentrated in one city like Paris. If in addition to being the political capital, Washington, D.C. was also the most populous city, the financial nerve center, and the single transportation hub, it would be the equivalent of Paris. In that situation, the combined attacks of September 11th would have been far more destructive to the country because the target would have been more centralized and concentrated. The physical and psychological damages would have been greater to the rest of the country precisely because of a greater dependence on the centralized target.

Even if centralization per se were desirable, it must be recognized that the best security possible cannot immunize the country from terrorist attacks any more than security measures can eliminate crime. Charles Schnabolk, a well-known security consultant has consulted on terrorism threats to the World Trade Center over the years. [105] A year ago, Schnabolk identified the greatest terrorist threat to the World Trade Center as "Someone flying a plane into the buildings. Someone blowing up the PATH tubes from New Jersey and water coming in from the Hudson River." [106] After the events of September 11th, he said, "Everyone wants to believe that we can protect ourselves from terrorism - and we can't." The problem is the classic security problem: protecting certain targets may only divert criminal attacks to less protected targets. As Schnabolt has said, the purpose of electronic security systems "is to get the criminal to go next door to the building that does not have them." [107]

Among many potential targets of terrorism, some are unique, e.g., the White House, the Capitol, and the Supreme Court Building. Anything which is unique, i.e., one of a kind, represents a form of centralization. The greater the centralization or concentration of wealth and/or power, the greater the level of security required. Thus the White House, the Capitol, and the Supreme Court get greater security than post offices, not solely because high-level officials may be "more important" than postal workers, but because there is only one Capitol, one White House, and one Supreme Court, whereas there are many post offices. The relationship between concentration/centralization and the need for security spreads across all levels of society. Even though there are many banks and armored trucks, they need more security than most residences because they are less numerous and contain more money than individual residences. "That's where the money is!" as Willy Sutton, the bank robber said when asked why he robbed banks. With greater centralization or accumulation of money and/or power and the need for greater security, comes the potential for greater damages if the security is breached.

This is not to argue against every response that involves some greater centralization. Rather, it is to argue that centralization per se is not wise policy. Thus, the Congress has debated whether airport security should be completely federalized/centralized by making security personnel federal employees or whether instead security should be governed by federal standards but administered by private contractors. The argument against making the security personnel federal employees is that degree of centralization actually undermines security.

C. Centralized Coordination; Decentralized Execution

Centralized coordination differs from centralized control. The federal government certainly has centralized control over the nation's defenses. Under Article Two, Section 2 of the Constitution, the President commands not only the military services, but also "the militia of the several States, when called into actual Serves of the United States." The federal government, however, does not and can not control all the many resources which contribute to the nation's defense, such as the emergency medical response services. Nevertheless, federal agencies such as the Department of Health and Human Services serve as central points of data collection and dissemination which, when performing well, provide centralized coordination.

In June, 2001, a simulated terrorism exercise, called "Dark Winter," played out the consequences of the intentional release of the deadly smallpox virus in several cities. Governor Frank Keating, who took the role of a governor, testified about the lessons learned from this simulation. [108] Governor Keating said the first lesson was "that in virtually every possible terrorism scenario, first responders will be the local." [109] The central problem preventing their working as a team was communication. [110] The final conclusion and strongest lesson was simply this: "Resist the urge to federalize everything." [111]

D. Concentrating on "Core Competencies"

In the current war, the great difficulty lies in distinguishing what should and should not be federalized or centralized. As many American businesses have decided, it is good policy for corporations to concentrate on their "core competencies," i.e., do only what they do best. Indeed, that just happens to be the organizational design of the Constitution, giving powers to the federal government that only it could do well. As illustrated by the following observations, devolving or shedding extraneous responsibilities from the center allows national security forces and federal law enforcement to concentrate on their primary responsibilities.

1. The Military: The federal government has the ultimate responsibility for defending the nation from foreign attack and domestic civil disorder. Against foreign attack, the military stands at the forefront; in matters of domestic order, the military is the last resort. Recently, however, the specter of militarizing law enforcement has been raised when the Chairman of the Senate Armed Services Committee asked whether the Posse Comitatus Act, [112] which generally prohibits the use of the military for law enforcement purposes, should be repealed. [113]

As discussed in Part I, foreign terrorists inside this country should be pursued under the war powers, not under law enforcement powers. If law enforcement agents are involved, they act in assisting national security actions, not law enforcement actions. That is just the converse of the situation addressed by the Posse Comitatus Act, which generally prohibits the use of the military to assist law enforcement. Thus the presence inside the country of foreign terrorists in no way implicates the Posse Comitatus Act. More importantly, militarizing law enforcement diffuses the military's mission and endangers the citizens' liberty. [114]

2. The FBI: The well-known difficulties of the FBI are at least in part due to expecting the Bureau to do too many things. If the Bureau has lost its focus, Congress must share much of the blame. Congress has imposed on the FBI wide-ranging responsibilities which result from too much federal criminal legislation that overlaps state criminal jurisdiction. Any resources the FBI devotes to crimes that are essentially state matters are resources that cannot be devoted to truly federal matters. Meanwhile, the FBI's responsibilities for domestic intelligence cannot be performed by the state law enforcement.

Moreover, the more the FBI is involved in ordinary, local crime the greater concern arises that the Bureau is directing its surveillance capabilities at ordinary citizens. To the extent that the Bureau is focused on intelligence related to foreign threats, its surveillance powers generate less concern about the potential for the abuse. There has been at least one report, however, that the FBI is preparing to increase its surveillance capability potentially over all citizens by imposing a centralized routing system on the Internet. [115] In addition to the civil liberties concerns, such a centralizing of communication actually undermines the defense to terrorism, as discussed below.

3. Communication Infrastructure: Decentralized communication received a big boost from the September 11th attacks. The use of wireless telephones on hijacked aircraft and in the Twin Towers demonstrated their intelligence and emergency response value. Since September 11th, the military has shown great interest in already available technology which can provide secure communications based on the peer-to-peer concept of Napster. [116] That same communication structure can fill the "communication gap" which exists among local emergency response agencies, as related by Governor Keating's report on "Dark Winter."

Through cutting-edge technology, communication is rapidly moving towards becoming ubiquitous. To the extent that it is based on or modeled after the Internet, this communication system will be decentralized. Although the Internet is not invulnerable, [117] it is less vulnerable than more centralized communication systems, namely the telephone system. The origins of the Internet reflect a concern to create an alternative to the telephone system in order to have a communication system that would survive a nuclear attack. The Internet is a (con)federal system, with very minimal centralized control.

Current developments in communications are leading what has been called the technology of decentralization. [118] The Internet's distributed communication is now being recognized as a strategy for defending against terrorism. [119] As demonstrated on September 11th, however, the potential of the Internet is limited by the bottle-necks created by overloads on the centralized telephone system which is generally used to connect to the Internet. Instead of following the natural urge to centralize all communications that many in federal law enforcement have, the Federal Government could do much to defend against terrorism by centrally coordinating a rapid decentralization of the nation's communications system. This approach may seem as counter-intuitive as the President's proposed missile-defense system. Both proceed on the premise that the best offense is a good defense. In fact, the Defense agencies have recently announced such a decentralized communications model. [120] The federal government could coordinate the extension of that kind of decentralized communication infrastructure so that, for example, a mission-critical communication system would connect the nations' local emergency-response resources of police, fire and health agencies with each other, with federal agencies, with public health experts, and with the public.

o o o o

*White & Case, Washington, D.C. Mr. Terwilliger served as Deputy Attorney General in the Bush I Administration.
**Office of Theodore Cooperstein, Attorney at Law, Washington D.C. Mr. Cooperstein has served as Assistant General Counsel, Federal Bureau if Investigation
***White & Case, Washington, D.C.
****Kelley Drye & Warren, New York. The views expressed herein are those of the author alone and do not reflect the views of Kelleye Drye & Warren.
*****Paul Weiss Rifkind Wharton & Garrison, Washington, D.C.
1.Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800) see (opinion of Washington, J.).
2. For statutes on piracy, see 18 U.S.C. § 1651-1661.
3. See "Diplomatic Security and Antiterrorism Act of 1986," Pub. L. N. 99-399, 100 Stat. 853.
4. For discussion of whether a formal declaration of war by Congress is required, an issue beyond the scope of this paper, see generally Bas v. Tingy, 4 U.S. 37 (4 Dall.) (1800) (opinion of Washington, J.); The Prize Cases, 67 U.S. (2 Black) 365 (1862).
5. See Federalist No. 8.
6. See Federalist Nos. 23-24.
7. See Federalist No. 51.
8. Federalist No. 23.
9. Brown v. United States, 12 U.S. [8 Cranch] 110, 125-126 (1814).
10. See United States v. Curtis-Wright Export Corp., 299 U.S. 304, 315-19 (1936).
11. Curtiss-Wright Export Corp., 299 U.S. at 315.
12. Brian L. Porto, Annotation, Construction And Application Of Posse Comitatus Act (18 U.S.C.A. § 1385), And Similar Predecessor Provisions, Restricting Use Of United States Army And Air Force To Execute Laws, 141 A.L.R. Fed. 271 (1997). Use of troops domestically for purposes other than law enforcement would be a different matter. For that issue, see the briefing paper prepared by Paul Stevens that appears on our website, http://www.fed-soc.org

13. "Posse Comitatus" means "power of the country."
14. 18 U.S.C. § 1385.
15. See United States v. Morrison, 120 S. Ct. 1740, 1754 (quoting United States v. Lopez, 514 U.S. 549, 566 (1995) ("[t]he Constitution withhold[s] from Congress a plenary police power").
16. See McCulloch v. Maryland. 17 U.S. (4 Wheat.) 316 (1819).

17. In re Yamashita, 327 U.S. 1, 9 (1946); accord Johnson v. Eisentrager, 339 U.S. 763, 774-75 (1950) ("Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed throughout our history, essential to war-time security"); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may legitimately be prosecuted. It therefore includes the right to seize and confiscate all property of an enemy and to dispose of it at the will of the captor").

18. Ex Parte Quirin, 317 U.S.1 (1942).
19. Id. at 26.
20. Id. at 28-29.
21. Quirin, 317 U.S. at 30-31.
22. Id. at 45; see also Yamashita, 327 U.S. at 23 (rejecting a Fifth Amendment challenge to the introduction of hearsay evidence in a prosecution before a military commission; "[T]he commission's rulings on evidence and on the mode of conducting these proceedings against petitioner are not reviewable by the courts . . .. From this viewpoint it is unnecessary to consider what, in other situations, the Fifth Amendment might require[.])"

23. Quirin, 317 U.S. at 37.
24. 71 U.S. (4 Wall.) 2 (1866).
25. The majority refused to consider the scope of the military tribunal's authority in this context, although the minority readily acknowledged the authority of such a tribunal that is "exercised in time of invasion or insurrection within the limits of the United States . . . when the public danger requires its exercise." 71 U.S. at 121 (majority) & 142 (opinion of Taney, C.J. and Wayne, Swayne and Miller, JJ.).
26. Ex Parte Milligan, 71 U.S. at 121-22.
27. See Quirin, 317 U.S. at 45. (Milligan involved a citizen who "was not an enemy belligerent . . . subject to the penalties imposed upon unlawful belligerents. . . . [Milligan was not] a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as . . . martial law might be constitutionally established").

28. The courts have also made clear that they stand ready to patrol the boundary between the exercise of legitimate national security powers directed to unlawful belligerents and the illegitimate use of that authority when directed at citizen civilians. In Quirin, and on two occasions since Quirin, the Supreme Court has recognized its authority to consider habeas corpus petitions filed by enemy aliens who claim they are wrongly held in military custody. In Yamashita, the Court held that Congress "has not withdrawn, and the Executive branch of the Government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus." 327 U.S. at 9. In Johnson v. Eisentrager, the Court pointed out that, despite its rulings in Quirin and Yamashita upholding the authority of the military commissions, in each case the petitioners had the benefit of a hearing at which an Article III court considered their applications and provided them with an opportunity to present reasons for their release from military jurisdiction. 339 U.S. at 780-81.
29. Reid v. Covert, 354 U.S. 1 (1957); Best v. United States, 184 F.2d 131,138 (1st Cir. 1950), cert. denied, 340 U.S. 939 (1951); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 157, (D.D.C. 1976)("There is no question, of course, that the Constitution applies to actions by the United States officials taken against American citizens overseas.").
30. United States v. Montoya de Hernandez, 473 U.S. 532, 537 (1985)("since the founding of our Republic, Congress has the Executive plenary authority to conduct searches and seizures at the border, without probable cause or warrant.")
31. Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973) (citing Chae Chan Png v. United States, 130 U.S. 581, 603-04).
32. Id. at 272-73
33. Best, 184 F.2d at 140-41 (warrantless search by U.S. Army upheld in Occupation Zone of postwar Austria).
34. United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000) (Applying Fourth Amendment to overseas search of American citizen, declining to apply exclusionary rule).
35. Rumsfeld, 410 F. Supp. at 154 ("The fourth amendment does apply to actions of foreign officials if United States officials participated in those actions so to convert them into joint ventures between the Untied States and the foreign officials") (citations omitted); see also Stonehill v. United States, 405 F.2d 738, 743-44 (9th Cir. 1968).
36. Rumsfeld, 410 F. Supp. at 152.
37. Verdugo-Urquidez, 494 U.S. at 266.
38. Id. at 269; see Johnson v. Eisentrager, 339 U.S. 763 (1950).
39. Eisentrager, 339 U.S. at 774-75.
40. 494 U.S. 259 (1992).
41. 494 U.S. at 263.
42. United States v. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir. 1988).
43. 494 U.S. at 274.
44. 494 U.S. at 283 n.7, 291 n.11.
45. Id. at 264; id. at 278 (Kennedy, J., concurring).
46. Id. at 274; id. at 279 (Stevens, J., concurring).
47. Id. at 273. This reasoning also militates against application of constitutional due process protections and other Bill of Rights provisions to aliens who are abroad.
48. Id. at 292.
49. Id.
50. United States v. Alvarez-Machain, 504 U.S. 655, 661 (1992) (citing to Frisbie v. Collins, 342 U.S. 519 (1952).
51. Frisbie v. Collins, 342 U.S. 519.
52. Ker v. Illinois, 119 U.S. 436 (1886).
53. 504 U.S. 655 (1992).
54. 504 U.S. at 667.
55. 394 U.S. at 270-71
56. 494 U.S. 265
57. Compare Bridges v. Wilson, 326 U.S. 135 (1945) (resident alien has first amendment rights) with U.S. ex. Rel. Turner v. Williams, 194 U.S. 229 (1904) (excludable alien does not have First Amendment rights).
58. Landon v. Plasencia, 459 U.S. 21, 32 (1982).
59. Laurie Mylroie, "The World Trade Center Bomb: Who is Ramzi Yousef? And Why it Matters," 42 Nat'l Int. 3 (1995).
60. Id.
61. Ed Timms, "Critics Say Visa System Was Help to Hijackers," Dallas Morning News, Sep. 15, 2001, at 25A.
62. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 223 (1953) (Jackson, J., dissenting).
63. 8 U.S.C. at § 1227(a)(3)(C).
64. Id. at § 1227(a)(3)(D).
65. Id. at § 1451(a).
66. Cf. Restatement (Second) of Torts § 549, cmt. g (1976).
67. See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953).
68. Id.
69. Landon v. Plasencia, 459 U.S. 21, 32 (1982) ("an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application . . . .").
70. Cf. Leng May Ma v. Barber, 357 U.S. 185, 187-88 (1958).
71. Kaplan v. Tod, 267 U.S. 228, 230 (1925) (Holmes, J.).
72. Fedorenko v. United States, 449 U.S. 490, 506 (1981).
73. Id. at 517.
74. Id.
75. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).
76. See Wong Wing v. United States, 163 U.S. 228, 238 (1896).
77. See Landon v. Plasencia, 459 U.S. 21, 32-34 (1982).
78. See Kaplan v. Tod, at 267 U.S. at 230.
79. P.L. 107-56 (Oct. 26, 2001),
80. Id. at § 412(a)(1).
81. Id. at § 412(a)(3),
82. Id. at § 412(a)(5).
83. Id. at § 412(a)(6),
84. Id.
85. Id. at § 412(a)(7).
86. Id.
87. Id. at § 412(b)(1),
88. Id. at § 412(b)(3).
89. United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
90. Id.
91. Id. at 271.
92. Id. (emphasis added)
93. Matthews v. Diaz, 426 U.S. 67, 79-80 (1976).
94. Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 32 (2d Cir. 1997).
95. Restatement (Second) of Contracts § 163, cmt. a (1981).
96. ...the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate governments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.
Federalist No. 51 (emphasis added).
97. USA PATRIOT Act of 2001, Pub. L. No.107-56.
98. See Federalist No. 70.
99. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (holding President Truman's order to seize steel plants in support of the Korean Conflict an unconstitutional violation of separation of powers, not justified by his powers as Commander-in-Chief).
100. See n. 3, Part I.
101. See Woods v. Miller Co., 333 U.S. 138 (1948) (upholding national rent controls under the war power even though the Housing and Rent Act of 1947 was adopted after the "cessation of hostilities" (although technically a state of war still existed) in World War II).
102. See Korematsu v. United States,323 U.S. 214 (1944) (upholding a conviction for violating a military order during World War II which imposed curfews, detention in relocation centers, and exclusion from certain areas on the West Coast on Japanese-Americans.)
103. See USA PATRIOT Act of 2001, Pub. L. No. 107-56, §§ 206, 207 compared to Countering the Changing Threat of International Terrorism: Report of The National Commission on Terrorism: Hearing Before the S. Comm. on Foreign Relations, 106th Cong. 8 (2000) (discussing the Foreign Intelligence Surveillance Act of 1978) and USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 416 compared to Countering the Changing Threat of International Terrorism: Report of The National Commission on Terrorism: Hearing Before the S. Comm. on Foreign Relations, 106th Cong. 22 (2000) (Discussing foreign student monitoring provisions). The report of The National Commission on Terrorism, released in June, 2000, can be accessed through the U.S. Government Printing Office Website at: www.gpo.gov
104. Testimony of Paul Bremer, Hearing Before the Committee on Foreign Relations, United States Senate; 106 Cong. 2d Sess., June 15, 2000, www.access.gpo.gov/congress/senate at 5 (Emphasis added).
105. Richard Reeves, Security in the Homeland - A Tough Job, Universal Press Syndicate, Oct. 12, 2001.
106. Id.
107. Id.
108. Frank Keating, Gov. of Oklahoma, Testimony Before the 107th Congress House Committee on Government Reform; Subcommittee on National Security, Veterans Affairs, and International Relations (July 23, 2001).
109. Id.

Local government and law enforcement agencies were the ones with the power to impose and enforce quarantines, curfews and states of martial law, to disseminate information through local media and to collate and forward epidemiological data to federal agencies such as the Centers for Disease Control in Atlanta. Local law enforcement would be the ones to discover, preserve and secure any available crime scenes of evidence.

110. Id.
The one central problem which emerged in Oklahoma City was that of communications. From the initial response effort through the final body recovery, it was noted that the many different radio frequencies and institutional policies in play all too often left many participants in the effort in the dark concerning vital decisions that should have been shared universally. This was remedied in part -- but only in part -- by the creation of a unified command center which invited key representatives from all of the agencies involved to frequent information briefings and discussions on tactics.

....
The rapid and accurate flow of information -- both internally among government agencies and externally to the public -- is absolutely essential.

111. Id.
Perhaps the strongest lesson from Oklahoma City -- and perhaps the most worrisome outcome from the Dark Winter exercise -- concerns the almost instinctive urge common to officials of federal agencies and the military to open the federal umbrella over any and all functions or activities. Simply put, the federal government all too often acts like the 500 pound gorilla.

In Dark Winter, we encountered this tendency as soon as state National Guard units were activated in response to the bio-terrorist attack. The function of those units--imposing curfews and quarantines and keeping public peace -- were exclusively local in nature. Still, many of the participants sought to call the Guard into federal service immediately. I want to thank Senator Nunn, who played the role of the President in the exercise, for resisting this temptation and deciding not to federalize the Guard.
(Emphasis added).

112. 18 U.S.C. §1385.
113. See Hearing on the Department of Defense's Role in Homeland Security: S. Armed Services Comm., 107th Cong. 4 (2001) ( Chairman of the Armed Services Committee Sen. Carl Levin raised the issue with Thomas White, Secretary of the Army: "Another overarching issue: Should the Posse Comitatus Act be revised or repealed?" at 4 ).
114. See Federalist No. 8.
The perpetual menacings of danger oblige the government to be always prepared to repel it - its armies must be numerous enough for instant defence. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of the territories, often the theatre of war, are unavoidably subjected to frequent infringements of their rights, which serve to weaken their sense of those rights; and by degrees, the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them as masters, is neither remote, nor difficult:(sic) But it is very difficult to prevail upon a people under such impressions, to make a bold, or effectual resistance, to usurpations, supported by military power.
115. Fox News reported and apparently overstated plans by the FBI supposedly involving a plan to change the architecture of the Internet, centralizing it by "rout[ing] traffic through central servers that it would [allow it] to monitor e-mail more easily." See www.foxnews.com/story/0,2933,37203,00.html
116. See Leslie Walker, "Uncle Sam Wants Napster!," The Washington Post, Nov. 8, 2001; Pg. E01.
117. See Thomas E. Weber, "Terrorist Attacks Raise The Issue of How Best To Protect the Internet," The Wall St. Journal, Oct. 8, 2001, A15.
118. Thomas E. Weber, "A Primer on Technology That Has the Potential To Help Foil Terrorism," The Wall St. Journal, Sept. 17, 2001, Pg. B1.
119. See Kevin Maney, "Could Internet be used as a weapon against bioterrorism?," USA TODAY, Oct. 24, 2001, Pg. 3B.
120. On October 1, 2001, the United States Joint Forces Command published a document on the previously approved Global Information Grid (GIG), which is described as "a globally interconnected, end-to-end, interoperable, secured system of systems." The document is posted at on a non-classified web site, https://jdl.jwfc.jfcom.mil