The War on Due Process

The question of how often the administration plans to use this tactic was raised again last week when President Bush named Ali Saleh Kahlah Al-Marri, 37, the third “enemy combatant” to be so designated since September 11. The other is Yaser Esam Hamdi, a Louisiana-born Saudi who was captured in Afghanistan. Al-Marri is a Qatari national, who was here on a student visa. The charges against him stem from his alleged efforts to settle al Qaeda sleeper cells here. As with the others, Al-Marri’s status as an enemy combatant means jurisdiction over his case is entirely in the hands of the Pentagon; it means his due-process rights — to a lawyer, to an arraignment, to examining the evidence against him — do not exist. If Padilla, Al-Marri and Hamdi are tried anywhere, it will be before a military tribunal, with the only appeal to President Bush, but there is no guarantee even of a tribunal. Padilla, Al-Marri and Hamdi have all fallen down an extraconstitutional black hole.

The argument over “enemy combatants” gains urgency, too, from a story that has fallen off the media radar: Camp Delta, the Guantánamo Bay prison for al Qaeda fighters seized in Afghanistan. In late May, Britain’s Mail on Sunday newspaper quoted camp commander General Geoffrey Miller as saying the Pentagon is planning to build a death row and execution chamber — anticipating capital convictions in upcoming military tribunals. It took nearly a month for The New York Times to hit the story, but by then European officials had registered strong protests. According to Defense Department officials, debate is now raging at the Pentagon over Camp Delta’s future, with a trickle of inmates now being repatriated. Defense Secretary Rumsfeld is reportedly urging a swift start to tribunals, with other officials worried over the international implications of trials and sentences — even executions — unreviewable by anyone except George W. Bush, who displayed so little queasiness presiding over executions as governor of Texas.

While the administration’s critics are challenging Ashcroft’s civil-liberties policies in the courts, the Justice Department has been doing some testing of its own. Recent months have brought the first criminal cases using both new PATRIOT-granted powers and new Justice Department strategies for expanding the government’s investigatory power.

Most of these cases are far away from the beltway spotlight. Temple Terrace, Florida, for instance, may seem an unlikely venue for feeling out the power and limits of the PATRIOT Act. Leafy, suburban Temple Terrace’s major thoroughfares are lined by strip malls, not national monuments that would make attractive terrorist targets. When Mohammed Atta ‰ and other al Qaeda operatives wanted a Florida base, they settled across the state, near Miami, not among Tampa Bay’s substantial Muslim-immigrant community.

But when federal agents arrived at the home of University of South Florida professor Sami Al-Arian in late February, their arrest warrant might as well have been stamped PATRIOT Act Test Case— one of a handful of indictments pushing the boundaries of antiterrorism law and challenging traditional civil-liberties premises.

The government has been watching Al-Arian — a Palestinian by birth and a longtime Islamic-affairs activist — since the mid-’90s, when a think tank he ran at USF was accused of being a front for Islamist radicals. He has been a particularly contentious figure at USF as a sometimes-hotheaded Palestinian activist and defender of his brother-in-law, Mazen Al-Najjar, who was held on secret antiterrorism charges for more than three years and ultimately deported after September 11.

Al-Arian was a tenured computer-engineering professor until his arrest. He became a national cause célèbre in the months after September 11, when USF’s president — encouraged by Governor Jeb Bush — suspended Al-Arian because of past anti-Israel speeches. This ignited national support for the professor from campus free-speech groups. But his arrest in February had to do with something else: Key provisions in the PATRIOT Act granted criminal investigators new, intrusive powers — in particular, access to foreign-intelligence wiretaps, which was unheard-of even in the Cold War. The indictment alleges that those national-security wiretaps — their source shrouded in secrecy — showed Al-Arian to be a top adviser to, and U.S. fund-raiser for, Palestinian Islamic Jihad (PIJ) — one of the groups behind suicide bombings in Israel. His indictment on dozens of counts of conspiracy amounts to a high-profile test run for the new antiterrorism law as much as it does a trial for Al-Arian himself.

Like Jose Padilla, Al-Arian is unlikely to win much public sympathy for his politics: The wiretap intercepts do suggest that he played a role in PIJ’s fund-raising. But one of the legal and political challenges for those attempting to slow the PATRIOT Act’s march on civil liberties is that the Bush administration has shrewdly chosen unappetizing characters with whom to test its sweeping new powers. Just as Padilla, Hamdi and Al-Marri are the test cases for enemy-combatant status, with Al-Arian the power grab is just as sweeping: opening the door for secret information gathered from overseas intelligence to be accepted as evidence by American grand juries and courts.

One of the main goals of the PATRIOT Act was to allow spy agencies and the criminal-justice system to trade information. Al-Arian’s indictment refers repeatedly to unidentified secret informants; the wiretaps were obtained overseas without warrants and cannot have their credibility tested in court. Al-Arian may or may not be the terrorist strategist portrayed in the indictment, but the powers unleashed in his case could be applied more broadly. The PATRIOT Act, for instance, also criminalizes destruction of corporate property for political purposes. Will overseas intelligence intercepts be used to justify indictment of globalization protesters? Will notoriously unreliable secret informants form the basis for conspiracy indictments against union leaders, activists for Irish Republicanism or future Latin American revolts? Al-Arian’s case raises the fundamental question of to what degree evidence from the shadowy, secret world of intelligence can support a criminal case in a legal system predicated on openness and the defendant’s ability to challenge evidence.