9/11 Legacy may haunt the West

<BODY BGCOLOR="#FFFFFF" TEXT="#080000" LINK="#0000BF" ALINK="#80028F" VLINK="#660099"> <div> <B> Analysis: 9/11 legacy may haunt the West </B></div> <bR> <div> By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent </div> <div> <A HREF="id66.htm" TARGET="_top" TITLE="FREEING BUSH V. GORE FROM ITS HALL OF MI"><U>Previous Page</U></A></div> <div> <B>DATELINE:</B> WASHINGTON, Dec. 6 </div> <bR> <bR> <div> The Bush administration in Washington and the Blair government in London have unleashed powerful legal forces in their battle against terror, forces that are causing more than just a little uneasiness among civil libertarians. </div> <bR> <div> Their harshest critics, perhaps with a note of hysteria, have accused the two governments of subverting civil liberties as the United States and Britain hunt for plotters beyond the 19 hijackers who died on Sept. 11. </div> <bR> <div> However, the criticism has tended to be of a general nature, and U.S. Attorney General John Ashcroft continually points out that no lawsuit has been filed against him claiming a specific violation of individual rights. </div> <bR> <div> In testimony before the Senate Judiciary Committee Thursday, Ashcroft defiantly defended the administration's handling of individual rights. </div> <bR> <div> "The Department of Justice has sought to prevent terrorism with reason, careful balance and excruciating attention to detail," Ashcroft said, speaking with unusual passion. "Some of our critics, I regret to say, have shown less affection for detail. Their bold declarations of so-called fact have quickly dissolved, upon inspection, into vague conjecture. Charges of 'kangaroo courts' and 'shredding the Constitution' give new meaning to the term, 'the fog of war'." Rather than subverting civil liberties, it appears the Bush administration at least has been pushing prosecutorial advantages to the limits allowed by law -- and perhaps a bit beyond those limits. </div> <bR> <div> The question that concerns the administration's more thoughtful critics, however, is not whether the new policies actively undermine the civil liberties of U.S. citizens today. After all, the targets of the policy in both the United States and in Britain are usually illegal immigrants who may or may not have been engaged in terrorism. </div> <bR> <div> But once these policies are carried out, once the threat of the moment is removed, the precedents will remain and their long-term effect is uncertain. Once these mechanisms are created and used against non-citizens, will they be used in the future against citizens accused of terrorism or of being in sympathy with its practitioners? </div> <bR> <div> In Britain, the Blair government is asking Parliament to enact the Anti-Terrorism and Security Bill before Christmas, and with its huge majority in the House of Commons, will likely succeed, despite Thursday's series of setbacks in the House of Lords. </div> <bR> <div> A critic writes scathingly in the Times of London that "this bill will overturn the principle of habeas corpus to permit the detention of foreign nationals on the basis of ministerial fiat. This will occur after a hearing before a tribunal never designed to decide on detention, without individuals knowing the evidence against them and with only the most limited powers of appeal. It will make it easier for state agencies such as the police to scrutinize information currently considered confidential. They could conduct speculative trawls without having to seek the permission of a court and the subject of any mistaken, or malicious, abuse of these powers has no practical recourse for the invasion of his privacy. The police do not even need to entertain a reasonable suspicion that their trawl will yield evidence for a terrorist prosecution, merely that their fishing expedition will land any information that may help them in the investigation of any crime." </div> <bR> <div> Canada is also considering new anti-terrorism laws, ones that would allow "preventive arrest" detention without warrants. </div> <bR> <div> The European Union's response to the terrorist threat has been typical: a pledge by bureaucrats that each member state will make resources available to any of its members in case of a terrorist attack. The response of individual members has been more robust, however, with crackdowns in Germany, Italy and Spain. By President Bush's count, foreign governments have arrested about 300 suspects directly connected to Osama bin Laden and his al Qaida terror network. </div> <bR> <div> In the United States, the Justice Department and the White House have instituted a broad spectrum of special measures that seem logical in wartime: long-term detention of illegal immigrants; questioning of thousands of immigrants from countries believed to be staging areas for terrorism against this country; surveillance of a handful of attorney-client communications (albeit with constitutional safeguards); and an executive order authorizing the Defense Department to try non-citizen terrorist suspects by military commission. </div> <bR> <div> Such drastic measures appear to be appropriate when dealing with the perpetrators of the Sept. 11 terror attacks, those who finance them, those who abet them and those who sympathize with them. </div> <bR> <div> However, if the next wave of terrorism comes from domestic sources, will they seem just as logical? If the next terrorist atrocity is committed by the increasingly violent fringes of the domestic anti-globalization movement, will government turn to those mechanisms which proved so successful against foreign terrorists? What about those who sympathize with the legitimate goals of such a movement, such as the preservation of the environment and workers' rights? Will the precedents set against al Qaida apply when the organizations in sympathy with a movement include U.S. labor unions? </div> <bR> <div> One of the Bush administrations most vehement critics is Professor Peter Rubin of the Georgetown University Law Center. Even he believes, however, that the new policy will be sustained in the federal courts. </div> <bR> <div> "I think the courts are likely to approve of all this because of the exigencies (of the war against terror) and they are ill equipped to second guess" the executive branch, Rubin said. "I think it is perfectly reasonable that dire circumstances give (the executive branch more leeway). But in doing so, they create precedents that will be used in other circumstances." </div> <bR> <div> The current U.S. policy was articulated and defended by Assistant Attorney General Viet Dinh, who heads the Justice Department's Office of Legal Policy, in testimony before the Senate Judiciary Committee earlier this week. </div> <bR> <div> "To respond to this threat of terrorism, the department has pursued an aggressive and systematic campaign that utilizes all information available, all authorized investigative techniques and all the legal authorities at our disposal," Dinh said. </div> <bR> <div> "The overriding goal of this campaign is to prevent and disrupt terrorist activity by questioning, investigating, and arresting those who threaten our national security. In doing so, we take care to discharge fully our responsibility to uphold the laws and Constitution of the United States. All investigative techniques we employ are legally permissible under applicable constitutional, statutory and regulatory standards. As the president and the attorney general have repeatedly stated, we will not permit, and we have not permitted, our values to fall victim to the terrorist attacks of Sept. 11." </div> <bR> <div> As of last Monday, Dinh said, there were more than 600 people in federal custody following the investigation in the Sept. 11 attacks. "Of that total, 60 currently are being held on federal criminal charges," Dinh said. "The remaining 553 are being detained on immigration-related charges." </div> <bR> <div> He pointed out that the Justice Department has released the names of about 100 persons charged with federal violations in the probe. Another dozen or so are charged under court seal. </div> <bR> <div> The department has refused to release the names of the 553 being held by the Immigration and Naturalization Service, citing INS privacy procedures. </div> <bR> <div> "Every one of these detentions is fully consistent with established constitutional and statutory authority," Dinh said. "Each of the 608 persons detained has been charged with a violation of either immigration law or criminal law, or is the subject of a material witness warrant issued by a court. Every one of these individuals has a right to access to counsel. </div> <bR> <div> "In the criminal cases and in the case of material witnesses, the person has the right to a lawyer at government expense if the he or she cannot afford one. Persons detained on immigration violations have a right to access to counsel, and the Immigration and Naturalization Service provides each person with information about available pro bono representation. Every person detained, whether on criminal or immigration charges or as a material witness, has the right to make phone calls to family members and attorneys. No one is being denied their right to talk to their attorneys." </div> <bR> <div> A group led by the American Civil Liberties Union disagrees. The coalition filed suit Wednesday in a Washington federal court asking that the Justice Department be forced to release all the names of those being detained. One member of the coalition, Hussein Ibish, communications director for the Arab American Anti-Discrimination Committee, insisted that his group has been in contact with detainees who "have been held incommunicado, without counsel." However, he declined to name the detainees. </div> <bR> <div> In his testimony before the Senate panel earlier this week, Dinh also defended the interception of attorney-client communication in special cases. </div> <bR> <div> There has never been an absolute right of attorney-client privilege, and the courts have ruled that attorneys must report the information if their clients confess that they are about to commit a crime. </div> <bR> <div> The Justice Department points out that such interceptions have always been permitted under court order. Under the new policy, issued as a U.S. Bureau of Prisons regulation, surveillance of such communications would be permitted when the attorney general "determines that unrestricted communication with these detainees could result in death or serious bodily harm to others." </div> <bR> <div> "This regulation permits the monitoring of attorney-client communications for these detainees only if the attorney general ... makes the additional finding that reasonable suspicion exists that a particular detainee may use communications with attorneys to further or facilitate acts of terrorism," Dinh said. </div> <bR> <div> "Only 12 of the approximately 158,000 inmates in federal custody would be eligible for monitoring." </div> <bR> <div> Dinh reminded the senators that the attorney and client have to be notified in writing that the intercept will take place, that the monitoring team cannot be part of the law enforcement group investigating the client, that the information obtained cannot be used against the client in court and, except in cases of imminent acts of terror, the monitoring team cannot use any of the information for any purpose without court approval. </div> <bR> <div> Perhaps most troubling to the administration's civil liberty critics is the proposed use of military commissions or tribunals to try non-citizen terrorist suspects, either abroad or in the United States. </div> <bR> <div> Those tried by the commissions would not have an automatic right to appeal to a higher court, though the federal courts could still exercise constitutional review. </div> <bR> <div> Precedents for such commissions are extensive. The Supreme Court, in 1942's ex parte Quirin, approved the establishment of a commission to try eight Nazi saboteurs in the United States. In 1956, the Supreme Court again approved the use of military commission, in this case to try a U.S. civilian in Germany, in Madsen vs. Kinsella. </div> <bR> <div> However, in both rulings the high court repeatedly tied the establishment of the commissions to the president's powers arising out of wartime. Congress of course, declared war on Japan in December 1941 and Nazi Germany subsequently declared war on the United States. </div> <bR> <div> In the present military conflict in Afghanistan, President Bush is using the authority of a congressional joint resolution, but there has been no formal declaration of war. If his "wartime" powers are challenged, Bush might have to defend them before a federal judge, and would have to make the case that the country is now at war under the law, not just in fact. </div> <bR> <div> But the precedents are there, and the United States established more than 600,000 such "commissions" or "tribunals" in occupied Germany after the war to conduct trials in the absence of courts of law. </div> <bR> <div> Harvard law professor Laurence Tribe, one of the country's foremost constitutional experts, criticized Bush's executive order authorizing the formation of these military commissions. </div> <bR> <div> "Now, one point of view ... is that the president in his commander-in-chief power can do it, even without congressional authorization," Tribe told a Senate panel in testimony earlier this week. "That's a question the U.S. Supreme Court deliberately left open in ex parte Quirin in 1942. It remains open. I would rather not see a cloud hang over convictions and sentences entered by these military commissions because of a question left open by the Supreme Court. I would rather see direct authorization of a limited use of military commissions, with protections by habeas" -- constitutional review by the federal courts. </div> <bR> <div> Tribe said the question of military commissions "should be resolved not unilaterally by the executive branch, but by a collaborative process in which this branch owns up to its important responsibility ... Congress alone, I think, can look over the landscape, at all of the separate pieces of what the attorney general is putting in place, and can put some reasonable curbs on it, and a solid platform beneath it." </div> <bR> <bR> </BODY>