JUSTICE AND THE WAR AGAINST TERRORISM

from

U.S. News & World Report, May 12, 2003

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"Terror's cellblock"

by Bruce B. Auster and Kevin Whitelaw, p.21

Complaints over the handling of suspects at Guantánamo are raising hackles in Washington.

Secretary of State Cohn Powell has argued inside the Bush administration that some detainees held at the U.S. base in Guantánamo Bay, Cuba, should not be in custody. In a strongly worded letter written to Defense Secretary Donald Rumsfeld, Powell also maintained that the Pentagon's mishandling of detainees at Guantánamo Bay undermines America's ability to win cooperation in the war on terror. He cited complaints from eight allies that want their citizens held at Guantánamo released to their custody.

Most detainees, including al Qaeda operatives and fighters for the Taliban regime, were taken into custody during the war in Afghanistan. But Powell's April 14 letter, described to U.S. News, says that both teenagers and the very elderly are among the prisoners. According to Powell, the military is holding one 13-year-old, one 14-year-old, two 15-year-olds, one 16-year-old, an 88-year-old, and a 98-year-old. Powell also questioned why it is taking so long to reach "a final determination" on the fate of the roughly 660 people from 42 countries being held at the base.

Not surprisingly, Rumsfeld rejected Powell's assertions. The two have knocked heads before, most often over the State Department's complaint that America cannot ignore its friends abroad. In a written answer, Rumsfeld chided State for failing to negotiate extradition deals with allies. A Pentagon official emphasized that many detainees remain a serious threat to Americans.

The issue was settled, at least for now, at a meeting Powell and Rumsfeld attended with President Bush late last month. The Pentagon agreed to expedite the release of the 100 or more prisoners sought by the allies, including Britain, Russia, Pakistan, and Spain. Intelligence agencies in some of those countries want to question the detainees. Meanwhile, Pentagon officials are readying a plan to hold "commissions" to try alleged terrorists.

Camp X-Ray. Since the detainees were first transported to Guantánamo, Powell has argued that they should be granted the protections of the Geneva Conventions. But the Bush administration has refused to designate them as prisoners of war; instead, they have been tagged as "unlawful combatants" with few, if any, legal rights. Conditions at Guantánamo's Camp X-Ray are said to be humane---Muslim prisoners receive a copy of the Koran, and in each cell a stenciled yellow arrow points toward Mecca. But critics like Human Rights Watch say detainees should be charged or released---not held indefinitely.

That's not happening. According to Powell's letter, not a single case is ready for prosecution in the United States, and criminal case files are incomplete. In addition, says a U.S. intelligence official, the agencies involved in interrogations---including the FBI, the CIA, and the military's intelligence services---must all sign off before a prisoner can be released. "Each agency had to sign a piece of paper guaranteeing this person would never commit a violent act against the United States," says the intelligence official. "That's one reason it took months before the initial five detainees were released last year; another 18 were let go in March. Officials also question whether prisoners have much to offer interrogators. Some have provided useful intelligence. But, says one official, "most of these people have no intelligence value."

Even Rumsfeld seems to concede the point. In a letter to Powell, he suggested that the beleaguered new Afghan government should build a prison to house "low-grade" prisoners from Guantánamo. A senior State Department official called the idea impractical and "breathtaking." Powell shot it down..

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TAKING LIBERTIES.

Are tough new responses to terrorism upsetting the balance between legal rights and national security?

By Angie Cannon, pp.44-46

Zacarias Moussaoui, the only person charged in an American court with conspiring in the September 11 [2001] terrorist attacks, calls the federal judge hearing his case the "death judge." His own lawyers, whom he has rejected, are "death lawyers." And Attorney General John Ashcroft? He's a "natural-born liar."

Moussaoui is, to put it mildly, hardly a sympathetic defendant. But the case of the French citizen often dubbed the "20^th hijacker" is not only drawing lots of media attention but raising a host of vexing new legal questions as well.

The Moussaoui case represents just one in a panoply of tough new legal responses to the terrorism threat that are changing the balance between an individual's constitutional rights and the government's need to protect national security. The Bush administration is planning military tribunals for foreign terrorism suspects and detaining as "material witnesses"---without charges---individuals it suspects of links to terrorism. Increasingly, liberals and conservatives alike are questioning whether such measures go too far. Is the war on terrorism, they ask, compromising civil liberties?

Moussaoui s case could provide some answers to the question. After a closed hearing this week, U.S. District Judge Leonie Brinkema must rule by May15 on a critical issue: Should a defendant charged with terrorism-related crimes be allowed to question a witness thought to have information useful to his defense if the witness is a member of a terrorist organization? Or can the government, as it asserts, block such questioning on national security grounds? A compromise over Moussaoui's due-process rights could keep his trial on track for the fall. Failing that, the government may send his case to a military tribunal, where he would have fewer rights than in federal court.

The precedent that would be set by that scenario troubles civil libertarians, already alarmed by what they see as a Justice Department too ready to cast aside individual rights in its pursuit of terrorists. "We tend to overreact in times of war and then we apologize for it afterward," says George Washington University law Prof. Stephen Saltzburg.

Every week seems to bring fresh examples of the shifting balance between fighting terrorism and upholding personal freedoms. Last month, for example, Ashcroft decided that broad groups of illegal immigrants can be locked up indefinitely if immigration officials say their release would jeopardize national security. Yet just a few weeks earlier, a Denver judge had released two Pakistanis being held while the FBI investigated them for possible terrorism ties. The government, the judge said, failed to show the suspects were dangerous. In some other cases, defense attorneys maintain, prosecutors are securing guilty pleas by implying that the alternative could be to declare a suspect an enemy combatant---thus throwing him into a legal black hole.

Americans are willing to accept some curbs on civil liberties as the cost of fighting terrorism, polls show. But there are signs of uneasiness. More than 90 communities---mostly liberal college towns such as Boulder, Colo., Berkeley, Calif., and Ann Arbor, Mich. "have passed symbolic resolutions urging the feds to respect people's civil rights in the terrorism war. In a similar vein, some librarians are destroying patrons' records rather than risk having to disclose them to federal agents as required under the U.S.A. Patriot Act. In a recent speech, Supreme Court Justice Stephen Breyer, a Clinton appointee, urged lawyers to question the government's tactics, such as the lack of access to counsel for some detainees.

Such worries are not voiced solely by liberals. At an American Civil Liberties Union forum last month, David Keene, head of the American Conservative Union, urged policymakers to "tread lightly when it comes to rights guaranteed by the U.S. Constitution." And Wisconsin Republican Rep. James Sensenbrenner, the chairman of the House Judiciary Committee, recently joined his Democratic counterpart, John Conyers of Michigan, in asking the Justice Department to answer some 100 questions about its tactics, including how many religious sites federal authorities have entered without disclosing their identities and how many people have been detained as material witnesses.

No charges. Authorities are increasingly using the 1984 material witness statute to circumvent limitations on holding individuals without charges. But the tactic is highly debated---and not always productive. The Washington Post last fall counted at least 44 people arrested as material witnesses in terrorism cases. The paper found that 20 were released without ever being asked to appear before a grand jury. Only two were ever indicted on terrorism-related charges.

Today's civil liberties debate has plenty of historical echoes. Since the nation's founding, Americans have relied on the basic legal protections spelled out in the Bill of Rights, including trial by jury, protection from unreasonable searches, the right to counsel, the right to confront accusers, and the right to obtain favorable witnesses. But during past wartimes, civil liberties have been curbed dramatically. President Lincoln suspended habeas corpus (which allows a suspect to challenge the legal grounds for his detention) during the Civil War, for instance, while President Roosevelt interned Japanese-Americans during World War II.

Some scholars question making too much of the parallel between those events and today's war on terrorism. "The Bush administration has done nothing like that," says Cass Sunstein, a liberal constitutional law professor at the University of Chicago. "This isn't to say that there are no legitimate criticisms. But by historical standards, it's been a pretty cautious response." Today's culture, he suggests, has become much more protective of civil liberties since the expanded definition of constitutional protections that followed the civil rights revolution of the 1960s.

The administration's legal tactics have certainly drawn plenty of fire. But the Justice Department and its defenders argue that dramatic steps are needed because the threat is grave. "The very protections in the Constitution recognize that they may vary by circumstances," says William Barr, the former attorney general during the first Bush administration. "And here where you are dealing with extraordinary threats that could take tens of thousands of lives, a rule of reason has to prevail."

The complex details of several terrorism cases show how little agreement there is on what legal rights it is reasonable to give suspects. In the Moussaoui trial, the Justice Department argues that Moussaoui should be denied the access he seeks to Ramzi Binalshibh, an alleged planner of the 9/11 attacks being held and questioned by U.S. officials. Moussaoui says Binalshibh's testimony would show that he was not involved in the 9/11 attacks. But the government argues that permitting Moussaoui's defense team access to Binalshibh "will undoubtedly become terrorist defendants' favorite trump card" to compromise prosecutions or hobble interrogations of al Qaeda leaders.

Another closely watched case raises important questions about whether a U.S. citizen may be detained without access to legal counsel. Jose Padilla, 31, a former Chicago gang member arrested at O'Hare International Airport in May 2002, was initially detained as a material witness. One month later, President Bush designated him an enemy combatant, and he was transferred to a naval brig in Charleston, S.C. The government said that Padilla was part of a plot to detonate a radioactive "dirty bomb" in the United States. In the year since, Padilla has not been charged or allowed to see a lawyer.

U.S. District Judge Michael Mukasey in New York has ruled that the president has the power to jail U.S. citizens captured on U.S. soil as enemy combatants, but he also has twice ruled that Padilla should be allowed to meet with a lawyer. The government is appealing; Justice Department lawyer Paul Clement recently argued that granting Padilla access to a lawyer "could irreparably compromise the military's efforts to obtain intelligence from Padilla."

Gag order. A third case is raising questions about whether the government is misusing the material witness statute. Maher "Mike" Hawash, 39, is a software engineer, a naturalized American of Palestinian descent, who has an American wife and three children. By all accounts, he was leading a middle-class American life. But on March 20, FBI agents picked him up in the parking lot of Intel Corp., in Hilsboro, Ore., on his way to work. For five weeks he was held in solitary confinement in a small cell as a material witness to a terrorism investigation. Agents searched his house for hours, taking computers and financial records. He did have access to a lawyer, but the judge imposed a gag order on attorneys and also barred the public from hearings. "It's Alice in Wonderland meets Franz Kafka," says Steven McGeady, a former Intel vice president, who is leading a support effort for Hawash.

Finally, last week, Hawash was charged with conspiracy~to wage war against the United States and conspiracy to provide material support to al Qaeda, a charge that has become a key tool in the government's pursuit of possible terrorists. The government's complaint says that Hawash traveled to China with several other Portland residents, who already have been charged, in an attempt to enter Afghanistan and fight against U.S. forces after September11. Shortly before he left the United States in October 2001, the complaint says, he transferred the title to his house to his wife and signed a power of attorney giving her authority to act on his behalf. Hawash returned to the United States after he was unsuccessful in entering Afghanistan, prosecutors say.

But Hawash's relatives say he told them his China travels had to do with his personal software business, according to the complaint. To complicate matters, a the Wall Street Journal that Hawash had told others that he traveled to the West Bank around that time. But all the government's evidence, says McGeady, is "weak and amounts to guilt by association."

Hawash originally was held under the material witness law, which permits the government to detain someone whose testimony is "material in a criminal proceeding." The law was intended to be used when a person is likely to flee the country to avoid testifying. Critics say the Justice Department is using it as a way to detain people indefinitely while searching for evidence against them.

Whatever the outcome of the Moussaoui, Padilla, and Hawash cases, critics say that since 9/11 there have been many other instances of newly aggressive tactics by the Justice Department. In the wartime atmosphere often cited by defenders of antiterrorism measures, "there is always a danger of saying 'we can tolerate this' and 'we can tolerate that,'"says law professor Saltzburg. "It's when you put those all together that you get a climate that frightens people."