This article from NYTimes.com
has been sent to you by luke@applix.com.
The mind boggles at the idea that the Bush administration has not bothered to find a serious rationale at all, much less one extraordinary enough to justify these extraordinary measures, much less present it to the public, and that the Bush administration appears to be against American-style justice.
The default explanation for government secrecy is to conceal official wrongdoing.  The administration is here making the case that Americans don't even have a right to question government secrecy.
We may find that the history of this past year has been an epic looting from the public, made possible by the urgency of reacting to 9/11.
luke@applix.com
After Sept. 11, a Legal Battle Over Limits of Civil Liberty
August 4, 2002
By THE NEW YORK TIMES
This article was reported and written by Adam Liptak, Neil
A. Lewis and Benjamin Weiser.
In the fearful aftermath of Sept. 11, Attorney General John
Ashcroft vowed to use the full might of the federal
government and "every available statute" to hunt down and
punish "the terrorists among us."
The roundup that followed the attacks, conducted with
wartime urgency and uncommon secrecy, led to the detentions
of more than 1,200 people suspected of violating
immigration laws, being material witnesses to terrorism or
fighting for the enemy.
The government's effort has produced few if any law
enforcement coups. Most of the detainees have since been
released or deported, with fewer than 200 still being held.
But it has provoked a sprawling legal battle, now being
waged in federal courthouses around the country, that
experts say has begun to redefine the delicate balance
between individual liberties and national security.
The main combatants are the attorney general and federal
prosecutors on one side and a network of public defenders,
immigration and criminal defense lawyers, civil
libertarians and some constitutional scholars on the other,
with federal judges in between.
The government's record has so far been decidedly mixed. As
it has pushed civil liberties protections to their limits,
the courts, particularly at the trial level, have pushed
back, stopping well short of endorsing Mr. Ashcroft's
tactics or the rationales he has offered to justify them.
Federal judges have, however, allowed the government to
hold two American citizens without charges in military
brigs, indefinitely, incommunicado and without a road map
for how they might even challenge their detentions.
In the nation's history, the greatest battles over the
reach of government power have occurred against the
backdrop of wartime. Some scholars say the current
restrictions on civil liberties are relatively minor by
historical standards and in light of the risks the nation
faces.
The current struggle centers on three sets of issues.
People held simply for immigration violations have objected
to new rules requiring that their cases be heard in secret,
and they have leveraged those challenges into an attack on
what they call unconstitutional preventive detentions.
People brought in and jailed as material witnesses, those
thought to have information about terrorist plots, have
argued that they should not be held to give testimony in
grand jury investigations.
Finally, Yasser Esam Hamdi and Jose Padilla, the two
Americans labeled "enemy combatants" for what the
government contends is more direct involvement with
terrorist groups, are seeking rights once thought to be
fundamental to American citizens, like a lawyer's
representation and a chance to challenge their detentions
before a civilian judge.
So far, federal judges in Newark and Detroit have ordered
secret deportation proceedings opened to public scrutiny,
and on Friday a federal district judge in Washington
ordered that the identities of most of the detainees be
made public under the Freedom of Information Act.
"Secret arrests," Judge Gladys Kessler wrote in the
decision on Friday, "are a concept odious to a democratic
society."
A senior Justice Department official said the detentions
had been lawful and effective. He said it was hard to
"prove a negative" and cite specific terrorist acts that
had been disrupted. But he said that department officials
believed that the detentions had "incapacitated and
disrupted some ongoing terrorist plans."
Two federal judges in New York have differed sharply on
whether the government may jail material witnesses while
they wait to testify in grand jury investigations. In
Virginia, a federal judge ordered the government to allow
Mr. Hamdi to consult a lawyer.
"I look at the federal district court judges and just cheer
them on, because they are doing exactly what an independent
judiciary should be doing," said Jane E. Kirtley, a
professor at the University of Minnesota and former
executive director for the Reporters Committee for Freedom
of the Press. "It's not hostile or adversarial; it's simply
skeptical."
These lower-court decisions have for the most part not yet
been tested on appeal, and there is reason to think that
appeals courts and the Supreme Court will prove more
sympathetic to the government's tactics and arguments.
The federal appeals court in Richmond, Va., for instance,
reversed the decision to allow Mr. Hamdi to talk to a
lawyer and ordered the lower court judge to consider
additional evidence and arguments.
But even the appeals court seemed torn, and it rejected the
government's sweeping argument that the courts have no role
in reviewing the government's designation of an American
citizen as an enemy combatant.
The detention issues also carry an emotional punch. Many of
the Arabs and Muslims caught in the government dragnet were
cabdrivers, construction workers or other types of
laborers, and some spent up to seven months in jail before
being cleared of terrorism ties and deported or released.
Last month, at a conference held by a federal appeals
court, Warren Christopher, the secretary of state in the
Clinton administration, snapped at Viet Dinh, an assistant
attorney general under President Bush, saying that the
administration's refusal to identify the people it had
detained reminded him of the "disappeareds" in Argentina.
"I'll never forget going to Argentina and seeing the
mothers marching in the streets asking for the names of
those being held by the government," Mr. Christopher said.
"We must be very careful in this country about taking
people into custody without revealing their names."
Mr. Dinh, who came to the United States as a refugee from
Vietnam, recalled his family's anguish when his father was
taken away in 1975 for "re-education." In contrast, he
said, those detained by the United States were not being
secretly held but were allowed to go to the press and seek
lawyers.
"These are not incognito detentions," he said. "The only
thing we will not do is provide a road map for the
investigations."
According to the Justice Department, 752 of the more than
1,200 people detained since Sept. 11 were held on
immigration charges. Officials said recently that 81
remained in detention. Court papers indicate there were
about two dozen material witnesses, while most of the other
detainees were held on various state and federal criminal
charges.
President Bush also has announced plans to try suspected
foreign terrorists before military tribunals, though no
such charges have been brought yet.
Last month, William G. Young, the federal judge presiding
in Boston over the criminal case against Richard C. Reid, a
British citizen accused of trying to detonate a bomb in his
shoe on a trans-Atlantic flight, noted that the very
establishment of those tribunals "has the effect of
diminishing the American jury, once the central feature of
American justice."
Judge Young, who was appointed by President Ronald Reagan,
added: "This is the most profound shift in our legal
institutions in my lifetime and - most remarkable of all -
it has taken place without engaging any broad public
interest whatsoever."
Jack Goldsmith and Cass R. Sunstein, professors at the
University of Chicago Law School, have written that the
Bush administration's policies are a minimal challenge to
civil liberties especially compared with changes during the
times of Abraham Lincoln and Franklin D. Roosevelt. What
has changed, they say, is a greater sensitivity to civil
liberties and a vast increase in mistrust of government.
The Secrecy
U.S. Says Hearings
Are Not Trials
Ten days
after last September's attacks, Michael J. Creppy, the
nation's chief immigration judge, quietly issued sweeping
instructions to hundreds of judges for what would turn out
to be more than 600 "special interest" immigration cases.
"Each of these cases is to be heard separately from all
other cases on the docket," Judge Creppy wrote. "The
courtroom must be closed for these cases - no visitors, no
family, and no press."
"This restriction," he continued, "includes confirming or
denying whether such a case is on the docket."
The government has never formally explained how it decided
which visa violators would be singled out for this
extraordinary process, and it has insisted that the
designations could not be reviewed by the courts.
But as it turns out, most of these cases involved Arab and
Muslim men who were detained in fairly haphazard ways, for
example at traffic stops or through tips from suspicious
neighbors. Law enforcement officials have acknowledged that
only a few of these detainees had any significant
information about possible terrorists.
As the ruling on Friday in Washington suggests, a series of
legal challenges to this secrecy has resulted in striking
legal setbacks for the administration. Several courts have
ordered the proceedings opened and have voiced considerable
skepticism about the government's justifications for its
detention policies generally.
Lee Gelernt, a lawyer at the American Civil Liberties
Union, said the secrecy of the proceedings exacerbated the
hardships faced by people who disappeared from sight on
violations that in the past would not have resulted in
incarceration.
"Preventive detention," he said, "is such a radical
departure from constitutional traditions that we certainly
shouldn't be undertaking it solely on the Justice
Department's say-so."
Malek Zeidan's detention would have been unexceptional had
it not given rise to one of the legal challenges that
threatens to end the secret proceedings.
Mr. Zeidan, 42, is a Syrian citizen who overstayed his visa
14 years ago and has lived in Paterson, N.J., for more than
a decade. Over the years, he has delivered pizzas, driven
an ice cream truck and pumped gas. When the Immigration and
Naturalization Service came around last Jan. 31 to ask him
about a former roommate suspected of marriage fraud, Mr.
Zeidan was working at Dunkin' Donuts, and his expired visa
soon cost him 40 days in custody.
When a hearing was finally held three weeks after his
detention, the judge closed the courtroom, excluding Mr.
Zeidan's cousin and reporters.
The closing of proceedings prompted lawsuits in federal
court, from both Mr. Zeidan and two New Jersey newspapers.
In March, the government dropped the "special interest"
designation, Mr. Zeiden was released after posting a bond,
and the case he filed was dismissed. The immigration
charges against him will be considered in the fall.
"You're one of the lucky ones," his lawyer, Regis
Fernandez, recalls telling Mr. Zeidan, given that other
visa violators were held as long as six or seven months
before being deported or released.
Mr. Zeidan's lawyers believe that their legal strategy,
which focused on openness, forced the government's hand.
"The government was somehow linking secrecy to guilt," Mr.
Fernandez said. "We figured if the public had access to
these hearings they would see that nothing went on except
multiple adjournments and delay."
Through a spokeswoman, Judge Creppy declined to comment. An
I.N.S. official, who spoke on the condition that he not be
named, said the agency had acted properly in Mr. Zeidan's
case and in similar cases.
He said the immigration service had always detained people
without bond who were linked to criminal investigations. He
added that the agency had no choice now but to detain a
visa violator until the Federal Bureau of Investigation was
sure the person was not involved in terrorism.
"Consider the flip side - that you held him for two days
and then deported him, and 30 days later you found out he
was a terrorist," the official said.
The newspapers' lawsuit has continued. It has already once
reached the Supreme Court, and the government's papers
contain one of the fullest accounts of its position on
secrecy and executive power.
Its main argument is that the courts have no role because
immigration hearings are not really trials, but are merely
administrative hearings that can be closed at will.
Bennet Zurofsky, who also represented Mr. Zeidan, said he
was flabbergasted by this suggestion.
"A trial is a trial," he said. "A person's liberty is at
stake. A person is being held in jail. A person is being
told where to live."
But in a sworn statement submitted in several court cases,
Dale L. Watson, the executive assistant director for
counterterrorism and counterintelligence at the F.B.I.,
outlined the reasoning behind the government demand for
total secrecy.
"Bits and pieces of information that may appear innocuous
in isolation can be fit into a bigger picture by terrorist
groups," he said.
This rationale for withholding information, sometimes
called the mosaic theory, is controversial.
"It's impossible to refute," Professor Kirtley said,
"because who can say with certainty that it's not true?"
In May, John W. Bissell, the chief judge of the federal
district court in Newark, appointed by President Reagan,
ruled for the newspapers and ordered all deportation
hearings nationwide to be opened, unless the government is
able to show a need for a closed hearing on a case-by-case
basis. His ruling followed a similar one in Detroit the
month before, though that case involved only a single
detainee.
The government appealed to the Court of Appeals for the
Third Circuit, in Philadelphia, and asked it to block Judge
Bissell's order until the appeal was decided. The court,
which will hear arguments in September, declined to do
that. A number of news organizations, including The New
York Times, filed a brief as a friend of the court in
support of the newspapers.
The government then asked the United States Supreme Court
to stay Judge Bissell's order. The court, in a relatively
unusual move given that the case was not before it for any
other purpose, blocked Judge Bissell's order, suggesting
that it might have more sympathy for the government's
arguments.
The Witnesses
Rights Violated,
Lawyers Contend
Late on Sept. 12, federal agents pulled
two nervous Indian men, Mohammed Jaweed Azmath and Syed Gul
Mohammed Shah, off an Amtrak train near Fort Worth. They
were carrying box cutters, black hair dye and about $5,000
in cash and had also shaved their body hair.
The agents' suspicions were obvious. The hijackers had used
box cutters and knives to take control of the aircraft and
had received letters instructing them to "shave excess hair
from the body." An F.B.I. affidavit dated Sept. 15 said
there was probable cause to believe that both of the Indian
men were involved in, or "were associated" with, those
responsible for the Sept. 11 attacks.
But even though government officials told reporters that
the men had been detained as material witnesses, their
lawyers now say that they were held last fall only on
immigration violations.
The distinction is important because a material witness
warrant brings the automatic appointment of a
government-paid lawyer, while the government does not have
to supply a visa violator with counsel.
As a result, the authorities were able to question each of
the men repeatedly about terrorism without a lawyer
present, their current lawyers say.
Like some of the people who were picked up as material
witnesses, the Indian men were held in isolation in jails
in New York for extended periods. It was 91 days before Mr.
Azmath received a lawyer and 57 days before Mr. Shah did,
their lawyers say.
"It's wrong to keep a man in jail for 57 days and never
bring him before a magistrate to advise him of his rights,"
Mr. Shah's lawyer, Lawrence K. Feitell, said in an
interview. "It's wrong not to provide him with an attorney
at the threshold. It's wrong to depict this as an I.N.S.
investigation, when in truth and in fact, it's the main
inquiry into the World Trade Center debacle."
Anthony L. Ricco, the lawyer for Mr. Azmath, said his
client was interrogated "often times for several hours a
day, with multiple interviewers, getting rapid-fire
questions from three or four different people."
Eventually, the F.B.I. and the prosecutors cleared the men
of any involvement in terrorism, and both pleaded guilty in
June in a credit-card fraud scheme and are awaiting
sentencing.
Federal prosecutors said in court papers that both men
consented to questioning. Each "was read and waived his
Miranda rights before each interview," prosecutors wrote,
adding that each man confessed to the credit card offenses.
The United States attorney in Manhattan, James B. Comey,
would not comment on the specific cases, but said generally
of the government's tactics: "I don't see any violation of
any rule, regulation, or law.
"I can understand defense lawyers not being happy," he
said. "But I know our position after 9/11 was to use every
available tool, to stay within the rules but play the whole
field and recognize the boundaries, but cover the whole
field.
"We need to do whatever we can that's legal to investigate
and disrupt," he added.
Today, it is believed that only a handful of the two dozen
material witnesses, perhaps as few as two, are still being
detained.
But the process of detaining the witnesses has stirred
intense criticism.
Last April, Judge Shira A. Scheindlin of Federal District
Court in Manhattan ruled that the use of the law "to detain
people who are presumed innocent under our Constitution in
order to prevent potential crimes is an illegitimate use of
the statute."
Judge Scheindlin said the material witness law applied when
witnesses were held to give testimony at trials, not for
grand jury investigations. "Since 1789," Judge Scheindlin
said, "no Congress has granted the government the authority
to imprison an innocent person in order to guarantee that
he will testify before a grand jury conducting a criminal
investigation."
Then last month, Chief Judge Michael B. Mukasey, also of
Federal District Court in Manhattan, upheld the
government's use of the material witness statute in grand
jury investigations, criticizing Judge Scheindlin's
reasoning.
Judge Mukasey, citing the assertion in 1807 by Chief
Justice John Marshall that "the public has a right to every
man's evidence," held that detentions of material witnesses
during investigations are proper.
The War Captives
No Lawyers Allowed
Under U.S. Label
Yasser Esam Hamdi, a
Saudi national who was captured in Afghanistan, is probably
an American citizen by virtue of having been born in
Louisiana. His case represents the core issue of what kind
of role the nation's courts should have, if any, in
reviewing the government's imprisonment of someone charged
with something akin to a war crime.
Prosecutors will be back in Federal District Court in
Norfolk, Va., next Thursday to confront one of the federal
judges who has shown resistance to the government's
approach that once someone is declared an "enemy combatant"
by the president, all judicial review ceases.
Judge Robert G. Doumar, an appointee of President Reagan,
has twice ruled that Mr. Hamdi is entitled to a lawyer and
ordered the government to allow Frank Dunham, the federal
public defender, to be allowed to visit him without
government officials or listening devices. Judge Doumar
said that "fair play and fundamental justice" require it.
He said the government "could not cite one case where a
prisoner of any variety within the jurisdiction of a United
States District Court, who was held incommunicado and
indefinitely."
But the three-judge panel of the appeals court stayed Judge
Doumar's order, saying he had not fully considered the
government's needs to keep Mr. Hamdi incommunicado and,
more important, the executive branch's primacy in areas of
foreign and military affairs.
"The authority to capture those who take up arms against
America belongs to the commander in chief," Chief Judge J.
Harvie Wilkinson 3rd wrote for the appeals panel.
But even Judge Wilkinson seemed to evince some surprise at
the breadth of what the government was asserting when he
asked the Justice Department's lawyer, "You are saying that
the judiciary has no right to inquire at all into someone's
stature as an enemy combatant?"
The government has relented slightly, agreeing to provide
the court with a sealed declaration of the criteria by
which they have judged Mr. Hamdi to be an enemy combatant.
But the government has argued that judges cannot argue with
the standards.
Judge Doumar has indicated that he will question the
government closely on those standards.
The case of Jose Padilla, which has not progressed as far
as that of Mr. Hamdi, may present an even greater challenge
to normal judicial procedures.
Mr. Padilla, also known as Abdullah al-Muhajir, is, like
Mr. Hamdi, an American citizen, imprisoned in a naval brig
after having been declared an enemy combatant. But unlike
Mr. Hamdi, Mr. Padilla was not arrested on the battlefield
by the military but on United States soil by civil law
enforcement authorities, on May 8 in Chicago.
After his detention as a material witness based on
suspicions that he was seeking to obtain material and
information to build a radioactive bomb, he was transferred
to military custody.
"This is the model we all fear or should fear," said Mr.
Dunham, the public defender. "The executive branch can
arrest an American citizen here and then declare him an
enemy combatant and put him outside the reach of the
courts. They can keep him indefinitely without charging him
or giving him access to a lawyer or presenting any
evidence."
http://www.nytimes.com/2002/08/04/national/04CIVI.html?ex=1029550865&ei=1&en=c82350bcf915e44e
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