The War on Due Process

WASHINGTON — Representative William Delahunt leaned into his microphone and looked a stone-faced Attorney General John Ashcroft in the eye. Delahunt, a Massachusetts Democrat, spoke slowly, lest anyone think he was indulging in impulsive overstatement. “No prosecutor in modern history has been granted as much power as you now hold,” he told Ashcroft, who, on this particular June afternoon, had come to the House Judiciary Committee seeking to broaden the USA PATRIOT Act.

Twenty-one months after al Qaeda’s attacks, the courts, Congress, even the Justice Department itself, are at last attempting an accurate assessment of the civil-liberties fallout from September 11. As if by plan — but in reality just reflecting the pace of bureaucracy, judiciary and politics — recent weeks have brought a minor cascade of reports and rulings on the Bush administration’s antiterrorism strategy, on the mass arrests of immigrants, the expansion of secrecy and asphyxiation of freedom of information, even as the administration has been testing the power and limits of USA PATRIOT and other measures.

At that June 5 House Judiciary Committee hearing — his first Judiciary appearance since September of 2001 — Ashcroft touted a long list of PATRIOT Act achievements: 18,000 subpoenas and search warrants; 15 plea agreements from “terrorist suspects”; more than 1,000 secret wiretaps of noncitizens under the Foreign Intelligence Surveillance Act, “more than three times the total number of emergency Foreign Intelligence Surveillance Act warrants obtained than in the prior 23-year history of the FISA law.”

In fact, Ashcroft’s Judiciary Committee appearance came at the end of a spring of at-best equivocal results and often-embarrassing setbacks, including the leak of internal Justice Department memos on his proposed PATRIOT Act II, which would permit warrantless searches, secret arrests and the stripping of immigrants’ citizenship without any proof of their support for terrorism. PATRIOT II provoked sharp dissent even from Ashcroft’s fellow conservatives, including former Congressman Bob Barr and David Keene, the president of the American Conservative Union.

This abrupt climate change was acutely evident during Ashcroft’s testimony. Despite an emotional opening statement laced with the names of individuals killed on September 11 and on the USS Cole, he spent much of the hearing fielding pointed questions — sometimes awkwardly, sometimes angrily — about the abuses during the past 18 months and about his own seizure of new powers. And it wasn’t just Democrats raising the questions.

Even the committee’s chair, Republican James Sensenbrenner of Wisconsin, an original PATRIOT Act sponsor, led off questioning by declaring that his support for the measure “is neither perpetual nor unconditional.” Sensenbrenner chided Ashcroft for loosening the FBI’s long-standing guidelines for political surveillance — the so-called “Levy Guidelines,” named for the Ford administration attorney general who curbed Hoover-era excess — without consulting Congress. Startled by Sensenbrenner’s slap, Ashcroft at first fudged, conflating the FBI guidelines with the PATRIOT Act. Then he changed course and admitted he thought that letting the FBI spy on political meetings and religious groups was “in the same spirit” as the legislation passed by Congress. He wound up with a head-spinning apologia: “Any assumption that I might have made that presumed that the kind of ideas of extending the guidelines, to extend them in the same way that we had worked collaboratively to extend the law in PATRIOT, may have been one that presumed in a way that overestimated our previous consultation.”

Ashcroft’s entire committee appearance was marked by a defensiveness and obfuscation more noteworthy than the relatively minor adjustments to PATRIOT Act I he ended up proposing. It was marked, as well, by a new assertiveness from congressional Democrats, who, after offering little resistance to the original PATRIOT Act, now seem to have decided that civil liberties once again can make good politics.

Representative Maxine Waters, of Los Angeles, asked how many of the hundreds of immigrants incarcerated after September 11 were actually implicated in the attacks. “They were all in the U.S. illegally,” Ashcroft replied, skipping over her question entirely. Wisconsin Representative Mark Green asked Ashcroft how he could justify the FBI’s PATRIOT Act authority to monitor library borrowing records. “We remember the Unabomber,” Ashcroft replied. “Some may remember that the capture of the Unabomber was made possible” because “investigators subpoenaed records from libraries and they developed an awareness of who had looked at these esoteric treatises.” New York City Representative Jerrold Nadler had to remind a visibly irritated Ashcroft that the Unabomber was turned in by his own brother, not identified by the FBI.


Judiciary Democrats gained momentum for their tough questioning from the release, just a few days earlier, of an internal Justice Department review of Ashcroft’s September 11 detentions. The 198-page report — by the Justice Department’s independent Office of Inspector General — amounts to a definitive and damning investigation of how Ashcroft, his aides and the FBI handled the nationwide roundup.


Departing from the usual cool, bureaucratic tone of government reports, the inspector general charges that the evidence raises “serious questions about the treatment of September 11 detainees,” and about accountability in the FBI and Department of Justice. At the Judiciary Committee hearing, Ashcroft repeatedly dodged queries about the inspector general’s report, insisting yet again that all the detainees were in the country illegally.

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.”

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.

The PATRIOT Act’s many repressive measures — which also include authorizing warrantless break-ins and limiting judicial scrutiny over wiretaps, among others — received such wide attention when the bill was passed that it has become shorthand for a whole range of administration strategies. But the dangers go beyond the PATRIOT Act itself.

Increasingly, for instance, the Justice Department has turned grand juries into tools for intelligence gathering and coercing suspects, rather than for simply evaluating indictments. In several cases — such as that of computer scientist Mike Hawash in Portland — the Justice Department has used “material witness” warrants to justify an otherwise illegal detention. Hawash was arrested on March 20 and detained for five weeks without charge, with all evidence in his case deemed secret. He never testified before a grand jury. When a furious federal judge ordered his release, the government charged Hawash with “conspiracy to levy war against the United States,” attaching his name to a broader Portland indictment. Ashcroft’s Justice Department has detained other grand-jury “witnesses” for more than a year without charge, and in at least one case extracted a confession from one of those “material witnesses” later proved to be utterly false. Beyond the abuse of the material-witness law itself, the use of coercive grand juries evokes an ugly past. Coercive grand juries were a staple of 1960s investigations into the student and feminist movements and have long since been abandoned.

Strikingly, the Bush Justice Department’s attack on civil liberties leaves it not only isolated from abroad — even Iraq war allies Britain and Australia have voiced protest at the confinement of their citizens at Guantánamo — but from local officials at home. The National Immigration Forum recently released a report with a 14-page list of local police chiefs, sheriffs and other law-enforcement leaders who object to the Bush administration’s demand that they become frontline enforcers of immigration law. More than 100 municipalities have passed resolutions pledging varying degrees of noncooperation with intrusive USA PATRIOT Act provisions. Indeed, Ashcroft himself conceded that “We do not believe that the Justice Department is in a position to mandate that the local police enforce the federal laws.”


All of this suggests that even with support for President Bush generally high, unease over the PATRIOT Act and its progeny is substantial, bringing the possibility that Ashcroft himself will become a flashpoint in the presidential elections. Americans, Representative Bill Delahunt told the attorney general, “feel that the government is intent on prying into every nook and cranny of people’s private lives, while, at the same time, doing all it can to block access to government information that would inform the American people as to what is being done in their name.”

The book is by no means closed on whether the court system will sustain stretching the boundaries of investigation this much. The 2nd Circuit Court of Appeals, in early June, agreed to a speedy decision of Jose Padilla’s “enemy combatant” status. More than anything, the July 5 Judiciary Committee hearing, along with the inspector general’s report and other recent events, made clear the contradictory reality of the post–September 11 civil-liberties crisis. On the one hand, never before in American history have an attorney general and president moved so swiftly to unleash and centralize surveillance and secrecy.

At the same time, it is clear that it is a dangerous mistake to think of Ashcroft and the PATRIOT Act as simply a reincarnation of McCarythyism and COINTELPRO, the FBI’s notorious surveillance-and-disruption program of the 1960s. McCarthyism and the Red Scare swept broadly over the nation’s political culture, victimizing teachers, artists and union officials. Ashcroftism — at least so far — has far more narrowly targeted immigrant communities, and while administration-friendly, right-wing broadcast hosts tried to rouse hysterical attacks against anti-war protesters, those attacks had little traction. COINTELPRO enjoyed the enthusiastic support not only of the FBI but also of the broader federal bureaucracy, backed by local Red squads.

Ashcroft’s surveillance state, by comparison, has met unanticipated resistance within the federal bureaucracy — those leaks and court rulings, that inspector general’s report, growing congressional resentment. And it has often been rejected outright by local officials. Instead of a populist witch-hunt, Ashcroftism is mired in the Bush administration’s determination to stand above the scrutiny of courts, the oversight of Congress and the authority of local government and law enforcement. In that, it comes closer to an executive-branch coup than anything since Roosevelt tried packing the Supreme Court.


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