278 PART ThRee • InsTITuTIons of AmeRIcAn GoveRnmenT
In the aftermath of the
terrorist attacks on September
11, 2001, the Bush adminis-
tration expanded the powers
of the FISA court. Previously,
the FISA had allowed secret
domestic surveillance only if
the purpose was to combat
intelligence gathering by for-
eign powers. Amendments
to the FISA enacted after
9/11 changed this wording
to “a significant purpose”—
meaning that warrants may
now be requested to obtain
evidence that can be used in
criminal trials.Alien “Removal courts.”
In 1996, Congress passed the
Anti-Terrorism and Effective
Death Penalty Act. The new
law was a response to the
bombing of a federal build-
ing in 1995 in Oklahoma City, which killed 168 people. Even though the perpetrators of
this crime were white U.S. citizens whose motives were entirely domestic, the new law
focused on noncitizens. For example, the act created an alien “removal court” to hear evi-
dence against suspected “alien terrorists.” The judges in this court rule on whether there
is probable cause for deportation. If so, a public deportation proceeding is held in a U.S.
district court. The prosecution does not need to follow procedures that normally apply in
criminal cases. In addition, the defendant cannot see the evidence that the prosecution
used to secure the hearing.The federal courts and enemy combatants. After the 9/11 attacks, the U.S. military
took custody of hundreds of suspected terrorists seized in Afghanistan and elsewhere and
held them at Guantánamo Bay, Cuba. The detainees were classified as enemy combatants,
and, according to the Bush administration, they could be held indefinitely. The adminis-
tration also claimed that because the detainees were not prisoners of war, they were not
protected under international laws governing the treatment of such prisoners.
The handling of the prisoners at Guantánamo has been a source of ongoing contro-
versy. The United States Supreme Court held, first in 2004 and then in 2006, that the Bush
administration’s treatment of these detainees violated the U.S. Constitution.^2
In response to the Court’s 2006 decision, Congress passed the Military Commissions
Act of 2006. The act eliminated federal court jurisdiction over challenges by noncitizens
held as enemy combatants based on habeas corpus, the right of a detained person to chal-
lenge the legality of his or her detention before a judge. In June 2008, in Boumediene v.
Bush, the Court ruled that the provisions restricting the federal courts’ jurisdictional author-“And don’t go whining to some higher court.” (Al Ross/The New Yorker Collection/www.cartoonbank.com)- Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
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