The War on Due Process 

With Patriot Act power, Bush and Ashcroft try to conquer the legal system

Thursday, Jul 3 2003

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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.”

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.

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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.

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