The War Comes Back Home
By Richard Lacayo
Sunday 04 May 2003
Can Attorney General John Ashcroft fight terrorism on our shores without injuring our freedoms?
Standing on the deck of the U.S.S. Abraham Lincoln last week, George W. Bush declared the Iraq war largely over. It was a majestic occasion even if you knew that its majesty had been carefully stage-managed. Bush, who had just the right windswept-but-presidential look, had apparently even taken the controls for part of the flight from San Diego to the Lincoln. The White House could hardly have done more to ensure a big audience; the speech interrupted that hallowed American tradition called Friends. The central purpose of all the pageantry was to soothe us: We're winning the war on terrorism, the worst is over, let's get back to work.
But on the very day that Bush was declaring provisional victory over Baghdad, a notable skirmish in another war was quietly under way in Washington. This is a war without daily briefings by self-assured Bush men and women. It's the war over how to make America safer without turning it into a police state how to mediate the difficult conflict between security and liberty. And this war is far from over.
On Thursday, Democrats on the Senate Intelligence Committee defeated a White House attempt to give the CIA and the Pentagon new and unusual authority to investigate U.S. citizens. It would have been the first time in U.S. history that these two institutions were openly authorized to probe into the lives of Americans. In a closed-door meeting of the Intelligence Committee, Democrats rejected a measure that would have allowed the CIA and the Pentagon to issue "national security letters" requiring Internet providers, credit-card companies and other institutions to cough up the personal and financial records of their customers. Says a U.S. intelligence official: "Periodically since 9/11, the folks on the Hill have asked, 'Geez, what kind of authorities would make your job easier?' And so that proposal was proposed."
The war on terrorism may be launching a legal revolution in America. The changes pose these questions: How necessary are some of the reforms? Have John Ashcroft and the Justice Department unraveled constitutional protections in trying to ensure our safety? "There is a significant civil-liberties price to be paid as we adopt various national-security initiatives," says Mary Jo White, a former U.S. Attorney in the Southern District of New York, whose office pursued some of the biggest terrorism cases of the 1990s. "For the most part, I think that price is necessary. But what I worry about is government officials who find the answers too easy in this arena."
None of the answers are simple. Who wouldn't have authorized an extra wiretap or a longer detention if it could have prevented 9/11, but who knows how far to go? As the demands of security bump up against the safeguards of personal liberty, clashes have been breaking out around the country over where to draw the line. Librarians are alerting visitors that their Internet surfing or book borrowing may be monitored by the government. Nearly 100 towns and counties, plus the state of Hawaii, have passed resolutions condemning the USA Patriot Act, the post-9/11 law that greatly expanded federal powers to conduct the war on terrorism.
The town of Arcata (pop. 16,000), Calif., has gone further, passing an ordinance that requires city officials to decline to assist in investigations carried out under the powers of the act. David Meserve, the city council member who drafted the ordinance, says it was a pre-emptive strike in case the feds, using the Patriot Act as their legal authority, ever ask local police to serve a search warrant or order town record keepers to hand over tax records. "My oath of office is to uphold the Constitution," says Meserve. "The Patriot Act is unconstitutional."
Not so fast, says Assistant Attorney General Viet Dinh, who had a large part in shaping the USA Patriot Act. "Security is the means by which we achieve our fundamental freedoms." Dinh rejects the idea that the Justice Department is doing a balancing act because, he says, the department is making sure that no civil liberties are violated. "It is especially in this war, where our enemies are attacking the very foundations of our liberties," he says, "that we must be particularly vigilant about protecting those liberties."
Here are some of the questions that are testing that vigilance:
WHAT RIGHTS FOR ALIENS?
In the days right after 9/11, the Immigration and Naturalization Service rounded up about 750 foreign nationals and detained them on immigration charges. Most have been released, but more than 100 remain in federal custody. On March 1, immigration control was transferred to the new Department of Homeland Security. One of the department's first steps was to announce that henceforth anyone arriving from one of 33 mostly Muslim nations and seeking asylum in the U.S. would be automatically jailed while the asylum application was pending. (Asylum is a form of protection that allows foreigners to remain here, provided they meet the definition of a refugee.) The government could point to a few terrorists who had entered the U.S. under the guise of asylum seeker, notably Abdel Rahman, now in prison for plotting attacks on the United Nations and other targets. But asylum applications usually take six months or more to process, and incarceration is a fate previously reserved for applicants who might be a risk to the community or might disappear.
Three weeks ago, Ashcroft made an even more sweeping decision in a case involving David Joseph, 18, a Haitian who arrived in the U.S. illegally last October. He and 215 other undocumented immigrants from Haiti and the Dominican Republic scrambled ashore in Biscayne Bay, Fla. On arrival, Joseph petitioned for asylum as a political refugee. An immigration judge okayed his request, and an appeals board supported the judge, ruling that Joseph was neither a danger to the community nor a flight risk. But Ashcroft, who has the final say in all immigration cases, stepped in to demand that Joseph be kept in prison until his immigration status is settled, a process that can take months or years.
Ashcroft did not argue that Joseph was in any way linked to terrorism. Instead, Ashcroft insisted that granting Joseph bond "would tend to encourage further surges of mass migration from Haiti by sea, with attendant strains on national and homeland-security resources." In other words, patrolling the U.S. coastline to keep out illegal aliens diverts Coast Guard and immigration officials from other duties. Ashcroft also argued that Haiti was a route through which Pakistanis and Palestinians might try to enter the U.S. illegally.
WHO DESERVES A LAWYER?
Time and again, people rounded up after 9/11 have not been permitted to talk to lawyers. Civil libertarians are especially uneasy about the legal no man's land at the U.S. naval base at Guantanamo Bay, Cuba, where more than 600 captives from the war in Afghanistan are still being held and have not been accorded prisoner-of-war status. The government justifies this on the grounds that it needs to question them, but most of the interrogations are over. And it recently emerged that among the detainees are three boys from ages 13 to 15. The rules governing military tribunals allow the detainees at Guantanamo to have a free military lawyer or a civilian lawyer as long as the government doesn't have to pay for representation. But civilian lawyers willing to work for the detainees for free complain that the Pentagon has not allowed them to contact potential clients.
Detainees in the U.S. who were rounded up shortly after 9/11 on immigration charges also have no right to court-appointed counsel, but they are allowed to hire their own. In their case, one problem has been that some of the detainees were transferred from place to place, making representation difficult. "We had attorneys trying to track their clients all over the country as they were moved around," said Marshall Fitz of the American Immigration Lawyers Association. "Access to attorneys was extremely limited."
Government prosecutors say they are worried that lawyers could become intermediaries who help communicate messages from their clients to other terrorists. Yale University law professor Akhil Amar says concern is understandable, "but the government should come up with its own honors list of lawyers who could meet security clearances." The military model, by which lawyers are picked from a slate of officers, "could be easily adapted to all these situations," Amar says.
WHAT IF THE ACCUSER IS HIDDEN?
In the vast majority of terrorism cases, judges have sided with the government against the objections of prisoners or their counsel. But there are some notable exceptions, including one case that could undercut some of the government's central legal aims. In March two men, Irfan Kamran, 32, and Sajjad Nasser, 28, were held in prison, charged with harboring an illegal immigrant, while the FBI tried to determine whether they had links to al-Qaeda. Kamran, a naturalized American citizen, and Nasser, a Pakistani, are cousins who had been living legally in the U.S. for years but returned occasionally to their native country. The government contends that in the summer of 2001 Nasser attended a training camp in Pakistan run by the Army of Muhammad, a group the U.S. believes is linked to al-Qaeda. Nasser's lawyer admits that he spent several days there but says he left after he realized it was too strenuous. He also insists that the Army of Muhammad is not aimed at the U.S. but is a militia devoted to ousting India from Kashmir, territory that Pakistan also claims.
As for Kamran, prosecutors say he told a "confidential source" that he planned to join al-Qaeda and fight the U.S. Kamran's lawyer denies that, saying the FBI claim rests upon a witness it refuses to identify. On April 8, Federal Judge Lewis T. Babcock ordered Kamran's and Nasser's release, ruling that the government had failed to show that they were dangerous. At that point, prosecutors successfully moved to detain Nasser again by hitting him with another immigration charge.
A trial is expected next month. It might help answer the question of whether the government can use secret testimony in cases of national security or whether such a tactic is too great a danger to constitutional protections.
WHEN CITIZENS ARE BRANDED THE ENEMY
The post-9/11 episode that worries civil libertarians the most involves dirty-bomb suspect Jose Padilla, an American citizen who allegedly met with senior al-Qaeda operatives in a plot to detonate a radiological device somewhere in the U.S. Arrested last year at Chicago's O'Hare International Airport, Padilla was classified as an enemy combatant and sent to a naval prison in South Carolina, where he has been denied access to a lawyer. According to government filings, Padilla has been undergoing months of interrogation that could be compromised if lawyers were allowed into the process.
A federal judge in Manhattan has ruled that Padilla must be allowed to meet with his lawyers in order to challenge his enemy-combatant status. But the government maintains that no court has the authority to review that classification. Federal prosecutors have taken a similar position in the case of Yaser Esam Hamdi, a Louisiana-born man who came into U.S. custody after he was captured in Afghanistan, allegedly fighting for the Taliban. He has been declared an enemy combatant as well, held in a Navy prison in Virginia and prevented from seeing attorneys.
Either of those cases could wind up in the Supreme Court. "To say that the Executive Branch on its own determination can pick somebody up and hold them indefinitely without any procedure or access to a court or to counsel or the press is an absolutely staggering thought," says Stephen Schulhofer, a law professor at New York University and the author of The Enemy Within, a book produced for the Century Foundation, that examines post-9/11 questions of civil liberty. The Attorney General insists that misses the larger point. "There are no civil liberties that are more important than the right to be uninjured and to be able to live in freedom," Ashcroft recently told TIME.
The dilemma is that reasonable people can agree with both arguments. But no one knows whether such changes will make us safer or undermine constitutional protections or both. On the deck of the U.S.S. Abraham Lincoln last week, when the President said the war on terrorism would be a fight that lasts years, he should have added that some of its most pitched battles will be fought in our courts. And in our own divided hearts and minds.
Text of Hawaii Resolution
t r u t h o u t | Statement
SENATE CONCURRENT RESOLUTION
Reaffirming the state of Hawaii's commitment to civil liberties and the bill of rights.
WHEREAS, the Hawaii State Legislature is committed to upholding the United States Constitution and its Bill of Rights, and the Hawaii State Constitution and its Bill of Rights (Article I, Sections 1-22); and
WHEREAS, the State of Hawaii has a distinguished history of safeguarding the freedoms of its residents; and
WHEREAS, the State of Hawaii is comprised of a diverse and multi-ethnic population, and has experienced first hand the value of immigration to the American way of life; and
WHEREAS, the residents of Hawaii during World War II experienced first hand the dangers of unbalanced pursuit of security without appropriate checks and balances for the protection of basic liberties; and
WHEREAS, the recent adoption of the USA Patriot Act and several executive orders may unconstitutionally authorize the federal government to infringe upon fundamental liberties in violation of due process, the right to privacy, the right to counsel, protection against unreasonable searches and seizures, and basic First Amendment freedoms, all of which are guaranteed by the Constitutions of Hawaii and the United States; and
WHEREAS, the citizens of Hawaii are concerned that the actions of the Attorney General of the United States and the United States Justice Department pose significant threats to Constitutional protections; now, therefore,
BE IT RESOLVED by the Senate of the Twenty-Second Legislature of the State of Hawaii, Regular Session of 2003, the House of Representatives concurring, that the State of Hawaii urges its Congressional delegation to work to repeal any sections of the USA Patriot Act or recent executive orders that limit or violate fundamental rights and liberties protected by the Constitutions of Hawaii and the United States; and
BE IT FURTHER RESOLVED that to the extent legally possible, no state resources including law enforcement funds and educational administrative resources may be used for unconstitutional activities, including but not limited to the following under the USA Patriot Act:
(1) Monitoring political and religious gatherings exercising their First Amendment Rights;
(2) Obtaining library records, bookstore records, and website activities without proper authorization and without notification;
(3) Issuing subpoenas through the United States Attorney's Office without a court's approval or knowledge;
(4) Requesting nonconsensual releases of student and faculty records from public schools and institutions of higher learning; and
(5) Eavesdropping on confidential communications between lawyers and their clients.
BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to Hawaii's delegation in the United States Congress.
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)