National Security State

by David Cole

The Nation magazine, December 17, 2001

It is already a cliché that the attacks of September 11 "changed everything." One thing they do seem to have changed is liberals. Harvard law professor Laurence Tribe, a stalwart defender of civil rights and civil liberties, has condoned the use of military tribunals and the detention of more than 1,200 people, even though not a single detainee has been charged in connection with the attacks. His colleague Alan Dershowitz has suggested that torture may sometimes be justified, as long as it is authorized by a warrant. And George Washington law professor Jeff Rosen has argued that "the real story after September 11 is that America hasn't yet come close to abandoning any immutable principles of its national identity."

I cite these scholars not to single them out for criticism-all are important and courageous liberal voices-but as illustrations of a larger trend. Even liberals these days seem reluctant to criticize the government's response to the pew threat of terrorism.

But a brief overview of what we've done so far in the interest of "homeland security" makes clear that we have already abandoned several of our "immutable principles" and have already begun to repeat the mistakes of the past.

Consider first the USA Patriot Act, an omnibus law of 342 pages enacted under in terrorem threats from Attorney General John Ashcroft, who suggested that if another terrorist incident occurred before Congress passed it, the blame would rest on Congress. The nuts and bolts of the law were worked out in a couple of all-night sessions and approved by large majorities the day they were introduced, even though members could not possibly have read the bill before casting their votes.

The Patriot Act imposes guilt by association on immigrants, rendering them deportable for wholly innocent nonviolent associational activity on behalf of any organization blacklisted as terrorist by the Secretary of State. Any group of two or more that has used or threatened to use force can be designated as terrorist. This provision in effect resurrects the philosophy of McCarthyism, simply substituting "terrorist" for "communist." Perhaps not realizing the pun, the Supreme Court has condemned guilt by association as "alien to the traditions of a free society and the First Amendment itself." Yet it is now the rule for aliens in our free society.

The Patriot Act also authorizes the Attorney General to lock up aliens, potentially indefinitely, on mere suspicion, without any hearing and without any obligation to establish to a court that the detention is necessary to forestall flight or danger to the community. Moreover, most of the more than 1,200 detentions already effected have not relied upon this authority; the detainees are instead held on pretextual criminal charges, as material witnesses and under pre-Patriot Act immigration authority. The government claims that about ten to fifteen of the detained may be linked to Al Qaeda, but what about the other 1,185? We can't know the answer to that question, because the Justice Department refuses to disclose even the most basic information about most of the detainees, such as who they are, what they are being held for or where they're imprisoned. On November 27, Ashcroft reluctantly identified about fifty people in custody on federal criminal charges but refused to identify more than 500 held on immigration charges, or even to put a number on those held as material witnesses or on state charges. Never in our history has the government engaged in such a blanket practice of secret incarceration.

Secrecy has become the order of the day. Criminal proceedings are governed by gag orders-themselves secret-preventing defendants or the* lawyers from saying anything to the public about their predicament. The INS has conducted secret immigration proceedings, closed to the public and even to family members The Patriot Act authorizes never-disclosed wiretaps and secret searches in criminal investigations without probable cause of a crime, the bedrock constitutional predicate for any search. And in a federal court of appeals in Miami in November, the government renewed its defense of the use of secret evidence in immigration proceedings, arguing that it needs the authority more than ever after September 11 to detain aliens by using evidence they cannot confront or rebut.

We can look forward to more secrecy still. A major impetus behind George W. Bush's presidential order authorizing the trial of suspected terrorists *n military tribunals was the desire to avoid the constitutional necessity of disclosing classified evidence to the defendant in an ordinary criminal trial. In military tribunals, defendants have no right to a public trial, no right to trial by jury, no right to confront the evidence or to object to illegally obtained evidence and no right to appeal to an independent court. The military acts as prosecutor, judge, jury and executioner, and a death sentence can be imposed by a two-thirds vote of the military officers presiding.

We have used military tribunals to try our enemies in times of war before. There has been no declared war here, but perhaps that can be excused as a technicality. What cannot be excused is the extension of the tribunals to US residents who have no connection to Al Qaeda whatsoever but who are merely charged with "international terrorism," a wholly undefined offense, or of harboring someone so charged. Military tribunals have always been limited to the trial of belligerents-those fighting for the enemy, as the Supreme Court ruled in Ex Parte Milligan during the Civil War. Bush's order, however, allows the President to dispense with a criminal trial for any noncitizen accused of terrorism.

In one setting-attorney-client communications-secrecy will no longer be the rule. At the end of October, Ashcroft asserted the authority to listen in on such highly privileged discussions without a warrant.

Finally, we have succumbed to ethnic profiling. The Justice Department has instructed law enforcement agents across the country to "interview" more than 5,000 immigrants based not on any evidence that they are connected to Al Qaeda or the events of September 11 but solely on their age, gender and country of origin. The list looks suspiciously like what an enterprising lawyer would come up with if instructed to make a list of immigrant Arab men but to make it look like it wasn't based on ethnicity.

After facing some initial, albeit muted, opposition to its first antiterrorism legislative proposal to Congress, the Administration has chosen since then to bypass Congress altogether. It has also bypassed the public, instead instituting radical changes through rule-makings that go into effect the moment they are published and without notice or comment.

The Administration has made no case that its pre-existing authorities were insufficient. We have successfully tried serious terrorist crimes in open court with all the protections that customarily apply, without regard to whether the defendants were citizens or aliens. Before the Patriot Act, we could deport aliens who supported terrorist activity in any way and could detain aliens who posed a threat to national security or posed a risk of flight. And we had authority to conduct wiretaps and searches in foreign intelligence investigations without probable cause of a crime, as long as that authority was not used as an end-run around the constitutional rules that govern criminal investigations. The government has not even tried to show that the absence of any of its newfound powers contributed to its failure to identify and thwart the September 11 attacks.

Rather, what the Administration has said, time and time again, is that we are "at war." Apparently this statement renders any further argument unnecessary. Thus, Ashcroft tells us that because we are at war, "foreign terrorists who commit war crimes against the United States...are not entitled to and do not deserve the protections of the American Constitution." But putting aside whether we are "at war" without a declaration of war, the bigger problem is that we can't know whether someone is a "foreign terrorist" until those charges are proven in a fair proceeding. The military tribunals eliminate virtually every procedural check designed to protect the innocent and accurately identify the guilty.

These initiatives have sparked opposition from unlikely quarters. Police officers in Portland, Oregon, have refused to take part in the interviews of the 5,000 immigrant men, citing local laws against racial profiling. Spain has said it will not extradite eight men charged with complicity in the September 11 attacks unless we promise not to try them in military tribunals. Even William Safire has called the military tribunals "kangaroo courts." And on Capitol Hill, Republican Orrin Hatch has joined Democrat Patrick Leahy in calling on Ashcroft to answer questions before the Judiciary Committee about his recent executive initiatives.

So why are so many liberals satisfied with the government's response? Why hasn't there been a louder outcry about the measures adopted? Why hasn't the Administration been asked to justify its newfound authorities on a power-by-power basis? For one thing, we are afraid, and in times of fear we crave security above all. For another, in the face of an attack we naturally and properly seek to stick together, to show a united front. But in times of fear and crisis we also panic. And panic causes us to abandon our principles.

So have we abandoned any "immutable principles," as Jeff Rosen calls them? Well, political freedom has given way to guilt by association. Due process has given way to detention on the Attorney General's say-so. Public scrutiny has given way to secret detentions and secret trials. Equal protection under law has given way to ethnic profiling. And we're only three months into this. We can't afford to let liberal vigilance give way to complacency.

David Cole, a professor at Georgetown University Law Center, is legal affairs correspondent for The Nation.

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