The War on Due Process

Some of the most dramatic revelations of the inspector general’s inquiry are buried in the fine print. One footnote, for instance, suggests that the generally accepted number of arrests may understate the case: The report quotes an anonymous senior Justice Department official revealing that after 1,200 arrests, Justice simply stopped counting or providing updated figures.

The report focuses on 762 immigrants incarcerated in New York and New Jersey because the FBI determined, on vague grounds, that they were “persons of interest.” Many of the arrests were inspired by the scantest of tips, such as an anonymous call complaining of a late-night deli staffed entirely by Middle Eastern immigrants.

At the time, Deputy Attorney General Michael Chertoff — since confirmed to become a federal judge — promised that most detainees would be cleared within three days. Instead, the average time was nearly three months. (In a particularly embarrassing sideswipe at the FBI, the report says bureau officials falsely blamed the delay on the CIA. In fact, declares the inspector general, the CIA responded to all requests for review within days, and it was the FBI’s own mismanagement that kept hundreds of individuals locked up for months on end.) The inspector general bluntly says that Ashcroft should have revised his policy of holding all September 11 detainees without bail once it became clear that the roundup was random.

Most damaging of all, the inspector general says September 11 detainees — particularly those in New York’s Metropolitan Correctional Center — were subjected to “a pattern of physical and verbal abuse.” Inmates were slammed against walls; others endured painfully tight handcuffs. “You’re going to die here,” guards promised some bewildered detainees. Corrections officers told others to “shut up” when they turned to their prayers. Inmates — nearly all innocent of any crime except overstaying a visa — were subjected to 24-hour lighting in their cells for months on end, provoking depression and exhaustion. Jail videotapes that might have documented the extent of such abuse were destroyed before reaching investigators.

If Ashcroft was vexed by the inspector general’s report, he could take some comfort in another review of his post–September 11 policies, when, on June 17, a three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled 2-1 in favor of his keeping the names of those 1,200-plus detainees secret. Last August, a federal judge had ordered the names released after a Freedom of Information Act (FOIA) lawsuit by the ACLU and the Center for National Security Studies. This time around, Appeals Judge David Sentelle, a Reagan appointee, wrote that Ashcroft had sound reasons to keep the names secret. “While the name of any individual detainee may appear innocuous or trivial, it could be of great use to al Qaeda in plotting future terrorist attacks or intimidating witnesses in the present investigation,” Sentelle wrote.

But this was hardly a definitive verdict. Indeed, the argument within the Appeals Court panel itself only underscored how divided the courts remain over the Bush administration’s policies. Sentelle was joined by Judge Karen L. Henderson, appointed by the previous Bush administration. But Judge David Tatel, a moderate Clinton appointee, wrote a lengthy and blistering dissent. Tatel scorned the Justice Department’s arguments as “vague and poorly reasoned,” riddled with “factual and logical gaps.” The majority Appeals Court decision, he wrote, “eviscerates both the FOIA itself and the principles of openness in government that FOIA embodies.” Further appeals are sure to follow.

The courtroom arguments over those detainees — most long since deported — are minor-league compared to the implications of another case now wending its way through the federal courts. Jose Padilla, the former Chicago gangbanger allegedly turned low-level al Qaeda operative, has become a subject of sharp questioning for Judiciary Democrats scrutinizing the administration’s handling of its new powers.

Since his arrest last summer, Padilla — an American citizen and adult convert to Islam — has not been charged with any crime. Instead, the White House has labeled him an “enemy combatant” and confined him in a naval brig. Padilla — who authorities claim was in the early stages of evaluating the prospects for a “dirty bomb” attack — has no access to his lawyer and no right to a courtroom. In a recent Court of Appeals hearing, Ashcroft’s aides argued not only that Padilla is an “enemy combatant,” but that status puts him effectively beyond any judicial protection: Only the president, they said, can remove “enemy combatant” status.

Padilla may not be a sympathetic character, but by all reliable accounts, even from intelligence agencies, he is no terrorist mastermind either. The idea of the president having the unilateral power to lock up an American citizen without any access to the courts clearly riles some in Congress, and provoked emotional exchanges between Ashcroft and Judiciary Democrats. “How would someone who is factually innocent of the crime or of the charge, had nothing to do with it, false identification or bogus evidence — how would they ever get out of jail?” demanded an exasperated Representative Robert Scott of Virginia.

Ashcroft replied that an “enemy combatant” could be imprisoned “during the pendency of the conflict” — in other words, indefinitely. The San Gabriel Valley’s Representative Adam Schiff recalled his own six years as an assistant U.S. attorney. “I wouldn’t want the unbridled discretion to designate an American as an enemy and lock them up without judicial review,” he said. Ashcroft’s only reply was to wash his hands of the whole matter, insisting that “it is the president, not the Justice Department, which decides who is an enemy combatant,” adding — as if it were comfort — that if there was “an abuse or mistake,” he was “sure the president would correct it.”