On December 13, 2001, five militants, allegedly belonging to the Lashkar-e-Taiba terrorist group and armed with explosives, mounted an unprecedented suicide attack on India\'s Parliament in New Delhi. For more information see New York Times Editorial, An Assault on India\'s Democracy, December 15, 2001.Google Scholar

A discussion of the newly introduced - and quite controversial - provisions in the Indian Act relating to arrest, detention, bail, etc. is beyond the ambit of this paper.Google Scholar

India was driven by the desire to further its rapprochement with Washington and sought a closer engagement with the United States after the twin tower attacks. For an interesting comment see Dennis Kux, India\'s Fine Balance, Foreign Affairs, May/June 2002.Google Scholar

Act No. 15 of 2002, passed by Parliament on March 26, 2002. Presidential assent was received on April 2, 2002. For the text of the Act see http://216.239.51.100/search?q=cache:DHE9H9tc67kC:alfa.nic.in/rs/bills-ls-rs/5-c-2002.pdf+%22Prevention+of+Terrorism+Act+2002%22&hl=en&ie=UTF-8Google Scholar

Article 123 of the Indian Constitution empowers the President to promulgate Ordinances when Parliament is in recess. However, such Ordinance would expire if not approved by Parliament within six weeks of its re-assembly. Parliament convened for its winter session on November 19, but POTO lapsed on December 31 and had to be re-promulgated. It was finally passed by Parliament only on March 26, 2002.Google Scholar

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (October 26, 2001). For the text of the Act see http://www.ins.usdoj.gov/graphics/lawsregs/patriot.pdf Google Scholar

The House vote was 357-to-66, and the Senate vote was 98-to-1. The very title of the Act would seem to suggest that it would have been unpatriotic to vote against it, something that only one Senator had the courage to do.Google Scholar

The implementation of the Act resulted in prolonged detention without charge or bail or trial, political torture, forced confessions, etc. The law was extensively used against college students, trade unionists, women\'s organizations, anyone \“inconvenient\”. Parliament was to review the Act every two years.Google Scholar

The rate of conviction under TADA was an appalling 0.9%.Google Scholar

See David Corn, The Warning Game, The Nation, June 10, 2002.Google Scholar

The U.S. government spends more than US$30 billion annually on spies and high-tech eavesdropping.Google Scholar

Anonymous, September 11 questions, The Nation, June 10, 2002.Google Scholar

The PATRIOT Act has expanded the Attorney General\'s already broad authority to detain non-citizens as suspected ‘terrorists\’ with minimal procedural safeguards. Prolonged arbitrary detention of non-citizens is a violation of internationally recognized standards, and could encourage many authoritarian regimes around the world to do the same.Google Scholar

Criminal investigations demand a much higher legal standard of demonstrated probable cause under the Fourth Amendment. When the government in conducting surveillance is primarily attempting to form the basis for a criminal prosecution, individual privacy interests come to the fore and government foreign policy concerns recede.Google Scholar

In an opinion made public on August 23, 2002, it has been revealed that the secret Foreign Intelligence Surveillance Court has identified more than 75 cases in which it was misled by the FBI in documents in which the bureau attempted to justify its need for wiretaps and other electronic surveillance. In a stinging criticism, the court said the FBI and the Justice Department had, in a number of cases, made \“erroneous statements\” in eavesdropping applications about \“the separation of the overlapping intelligence and criminal investigators and the unauthorized sharing of intelligence information with FBI criminal investigators and assistant U.S. attorneys.\” This evidence of abuse of wiretap powers relates to cases as early as September 2000, even before PATRIOT\'s Section 218 lowered the standard for wiretap authorizations. For the full story, see Philip Shenon, Secret Court Says FBI Aides Misled Judges in 75 Cases, New York Times, August 23, 2002.Google Scholar

See Sharon H. Rackow\'s Comment, How the USA PATRIOT Act will Permit Governmental Infringement Upon the Privacy of Americans in the Name of \“Intelligence\” Investigations, 150 U. Pa. L. Rev. 1651 (2002).Google Scholar

Coyle, Marcia, Sharp Debate on Surveillance Law: Pick Between Two Little Words Makes a Big Difference, Nat\'l L.J., Oct. 8, 2001, at A13.Google Scholar

The absence of clear statutory or judicial standards led to widespread warrantless electronic surveillance of individuals who were not associated in any way with a foreign power, did not pose a threat to national security, and were not suspected of being involved in criminal activity. For more see Americo R. Cinquegrana, The Walls (and Wires) Have Ears: The Background and First Ten Years of the Foreign Intelligence Surveillance Act of 1978, 137 U. Pa. L. Rev. 793 (1989).Google Scholar

147 Cong. Rec. S10, 558 (daily ed. Oct 12, 2001) (statement of Senator Leahy).Google Scholar

Pen registers record telephone numbers of outgoing calls. Trap and trace devices record telephone numbers from which incoming calls originate.Google Scholar

Unlike telephone communications where the provision of dialing information does not run the risk of revealing content, email messages move together in packets that include both address and content information, making their separation difficult.Google Scholar

The program is called DCS1000 or Carnivore because \“it chews all the data on the network\”.Google Scholar

Prior to the PATRIOT Act, the FBI claimed authority for the deployment of Carnivore in the internet context under statutory provisions originally enacted to regulate telephone surveillance. While courts issuing Carnivore pen register orders assumed these provisions extended to the internet, statutory authorization for pen registers to be utilized with non-telephone technologies was highly questionable. Section 216 by redefining pen registers to encompass internet applications brings the existing statutory language into line with actual practice, in which Carnivore has been employed by the FBI as an internet pen register on numerous occasions. See Anthony E. Orr\'s Note, Marking Carnivore\'s Territory: Rethinking Pen Registers on the Internet, 8 Mich. Telecomm. Tech. L. Rev. 219.Google Scholar

To use an analogy, Carnivore allows the FBI to access an entire block of apartments on suspicion of just one tenant. They may not however search the other apartments or use the results of such illegal search. In support of the program, the FBI argued that smaller ISPs unlike AOL or excite.com cannot afford the capability to supply specific information, and for them, Carnivore is a necessary device. See http://www.svbizink.com/headlines/article.asp?aid=755&iid=155 Google Scholar

Section 216(3) of the PATRIOT Act requires that the record of such interception be provided under seal to the authorizing court within 30 days of the expiration of the order.Google Scholar

It has been held by the United States Court of Appeals for the Armed Forces in United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996) that an individual does have a reasonable expectation of privacy in his email transmissions. Interestingly enough, the United States Supreme Court has not yet had an opportunity to decide the issue.Google Scholar

Illinois Institute of Technology Research Institute (IITRI), Independent Technical Review of the Carnivore System: Draft Report, November 17, 2000, at 4-4 to 4-5, available at http://www.usdoj.gov/jmd/publications/carnivoredraft1.pdf The Report states: \“Since there are no checksums or other protections on the collected data files and no individual accountability, anyone could edit the collected data and evidence of changed files could be erased.\”Google Scholar

The Carnivore version reviewed by IITRI (Carnivore 1.3.4.) did not possess the ability to automatically record all of this information. See supra 26.Google Scholar

For more details see http://www.cbc.ca/news/indepth/targetterrorism/backgrounders/moussaoui_zacarias.html and http://www.wsws.org/articles/2002/jan2002/mous-j05.shtml Google Scholar

An internal memo leaked to the New York Times directly accuses Mueller and his aides of skewing, downplaying and mischaracterizing facts to avoid personal and institutional embarrassment and for political reasons. For more, see Julian Borger, Agent accuses FBI of ‘sabotage\', The Guardian, May 28, 2002 and Julian Borger, FBI Chiefs blocked investigation of ‘20th hijacker\', The Guardian, May 25, 2002.Google Scholar

See Ed Vulliamy, A bad call? The Observer, May 19, 2002 and Matthew Engel, Bush warned of hijacks before September 11, The Guardian, May 17, 2002.Google Scholar

The bureau has been struggling with computers that are over a decade old and incapable of even sending photographs over the internet.Google Scholar

Article 21 of the Indian Constitution reads: \“No person shall be deprived of his life or personal liberty except according to procedure established by law.\”Google Scholar

Article 19(1)(a) states: \“All citizens shall have the right to freedom of speech and expression.\”Google Scholar

For example, see People\'s Union for Civil Liberties v. Union of India, A.I.R. 1997 SC 568, which dealt with the issue of telephone tapping, and could be broadly interpreted even in the context of the internet. Kharak Singh v. State of U.P., A.I.R. 1963 SC 1295, Gobind v. State of M.P., A.I.R. 1975 SC 137, and Malak Singh v. State of P&H, (1981) 1 SCC 420, are earlier cases decided by the Supreme Court of India interpreting the right to privacy in the context of police surveillance.Google Scholar

Justice Holmes, in Dissenting opinion Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919).Google Scholar

Chang, Nancy, What\'s So Patriotic About Trampling on the Bill of Rights?, excerpt from Silencing Political Dissent: How Post-September 11 Antiterrorism Measures Threaten Our Civil Liberties (2002).Google Scholar

The Nixon administration also sought to chill First Amendment political speech with harassment of high-profile dissidents from Martin Luther King, Jr. to John Lennon. The FBI, CIA and NSA have in the past compiled massive files on activities protected by the First Amendment. See Americo R. Cinquegrana, supra 17.Google Scholar

See Rackow, Sharon H., supra 15.Google Scholar

For a list of proscribed ‘terrorist organizations\’ see U.S. Department of State Fact Sheet dated March 27, 2002, available at http://www.state.gov/s/ct/rls/fs/2002/9014.htm Google Scholar

United States Department of State, Patterns of Global Terrorism 2000, Introduction (April 2001).Google Scholar

Under this broad definition, it is possible that an immigrant who grabs a makeshift weapon in a sudden scuffle may be subject to removal as a \“terrorist\”.Google Scholar

In such cases, it is the non-citizen who is saddled with the difficult task of proving that his/her assistance was not intended to further terrorism.Google Scholar

Currently, 29 organizations have been banned under the Act. See Indian Ministry of Home Affairs Press Release dated June 27, 2002, available at http://pib.nic.in/archieve/lreleng/lyr2002/rjun2002/27062002/r270620022.html Google Scholar

See supra Sec. 3(1) of POTA defining ‘terrorist act\'.Google Scholar

See supra Sec 802 of the PATRIOT Act defining ‘domestic terrorism\'.Google Scholar

London-born Ahmed Omar Saeed Sheikh has been sentenced to death for abducting and murdering U.S. journalist Daniel Pearl. For a profile see Simon Jeffery, Omar Sheikh (Special Report), The Guardian, July 15, 2002. For an interesting interview see http://news.bbc.co.uk/1/hi/world/south_asia/1806001.stm. See also Dexter Filkins, Four in Pearl Murder are found Guilty in Pakistan Court, New York Times, July 15, 2002.Google Scholar

A Frenchman of Moroccan descent, Moussaoui is alleged to be the \“20th hijacker\” and has been indicted for conspiring with Osama bin Laden in the September 11 attacks. See supra 27 and 28. For an update on his trial see http://crime.about.com/library/weekly/aa20thHijacker.htm Google Scholar

London-born Richard Reid, dubbed the ‘shoe-bomber,\’ is facing trial in the U.S. for allegedly trying to blow up American Airlines flight 63 from Paris to Miami on December 22, 2001. Reid was subdued by passengers when he tried to ignite his sneakers. Reid attended the same mosque in London as Moussaoui, and is believed to have had contact with al-Qaida members. For a profile see http://news.bbc.co.uk/1/hi/uk/1731568.stm and for an update on his trial see http://crime.about.com/library/weekly/aasneakers.htm Google Scholar

The present UK Terrorism Act, 2000 is permanent and not subject to routine review. Some of its provisions echo those of POTA and the PATRIOT Act. For instance, once an organization is proscribed by the Home Secretary, it is illegal to belong to it, support it financially, or even to be present at a meeting of three people or more if one of these people is a member. While terrorism used to be defined as violence with political motivation, the Act widens the ambit to include anyone serving a \“political, religious or ideological\” cause, who uses violence or the threat of violence against people or property.Google Scholar

Pervasive electronic surveillance and security checks have become a part of everyday life. In a major departure from long-established legal principle, a presumption of guilt could attach to an accused\'s decision to remain silent. Warrant-less searches, the muzzling of the electronic media, and restrictions on freedom of movement are all costs of Britain\'s response to terrorism.Google Scholar

Ian Cuthbertson, Whittling Liberties: Britain\'s not-so-temporary antiterrorism laws, World Policy Journal, Wnter 2001/2002.Google Scholar

Ibid.Google Scholar

See Donald Rumsfeld, A War Like No Other Our Nation Has Faced, The Guardian, September 28, 2001 and Leader, A Perilous Proposition, The Guardian, September 19, 2001. See also Michael Elliott, We Will Not Fail, Time magazine, October 1, 2001.Google Scholar

Cole, David, Operating Enduring Liberty, The Nation, June 3, 2002.Google Scholar

Kittrie, Nicholas N., Rebels With A Cause: The Minds and Morality of Political Offenders (2000).Google Scholar

See generally Heymann, Philip B., Terrorism and America, pp. 100–103, 113-114 (1998).Google Scholar