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The Threat to Patriotism

1.

What has al-Qaeda done to our Constitution, and to our national standards of fairness and decency? Since September 11, the government has enacted legislation, adopted policies, and threatened procedures that are not consistent with our established laws and values and would have been unthinkable before.

On October 25, Congress passed the “USA Patriot Act” with only one dissenting vote in the Senate and sixty-six in the House. That statute sets out a new, breathtakingly vague and broad definition of terrorism and of aiding terrorists: someone may be guilty of aiding terrorism, for example, if he collects money for or even contributes to a charity which supports the general aims of any organization abroad—the IRA, for example, or foreign anti-abortion groups, or, in the days of apartheid, the African National Congress—that uses violence among other means in an effort to oppose American policy or interests. If the attorney general declares that he has “reasonable grounds” for suspecting any alien of terrorism or aiding terrorism in the broad sense that is defined, then he may detain that alien for seven days with no charge. If the alien is then charged with any, even a wholly unrelated, crime, and the attorney general finds that “the release of the alien will threaten the national security of the United States or the safety of the community or any person,” he may be detained for six months, and then for additional six-month periods so long as the attorney general continues to declare that his release would threaten national security or anyone’s safety.1

The Justice Department has now detained several hundred aliens, some of them in solitary confinement for twenty-three hours a day. None of them has been convicted of anything at all, and many of them have been charged with only minor immigration offenses that would not by themselves remotely justify detention.2 It has refused repeated efforts on the part of journalists, the ACLU, and other groups even to identify these detainees.3 So our country now jails large numbers of people, secretly, not for what they have done, nor even with case-by-case evidence that it would be dangerous to leave them at liberty, but only because they fall within a vaguely defined class, of which some members might pose danger.

The USA Patriot Act relaxes many of the other rules that protect people suspected of crime from unfair investigation and prosecution. It greatly expands the government’s power to conduct searches of the premises and property of citizens and aliens alike without informing them. Such secret searches were formerly permitted, pursuant to a special warrant for that purpose, only if the primary purpose of the search was to collect information about a foreign nation’s activities in this country. Now they are permitted if the primary purpose is to collect evidence of a crime that can be used in a prosecution, so long as intelligence-gathering is a subsidiary purpose, as it can always be said to be when a suspected terrorist’s property is searched. So no one may now be confident that his premises have not been searched by the government without his knowledge.4

The Justice Department has also, without any congressional approval at all, unilaterally altered other important safeguards against injustice, including, for instance, the right of someone suspected or accused of a crime to consult in private a lawyer of his own choosing. On October 31, the department announced that it had the authority to “monitor” conversations between detainees and the lawyers they consulted to plan their defense whenever, according to the attorney general, “there is a substantial risk” that such conversations could facilitate terrorism by passing on information or instructions.

The order does provide that the detainee and lawyer must be advised that their conversation will be overheard (except when a judge permits secret monitoring) and that the monitoring must be conducted by a special team from within the Justice Department whose members are directed not to divulge to those actually prosecuting the detainee any part of the conversation that would be covered by the traditional lawyer–client privilege. But monitoring, even with these qualifications, seriously undermines people’s constitutionally guaranteed right to counsel of their choice when they are accused of a crime: only the most trusting prisoner will be willing to discuss defense strategy candidly with his lawyer if he knows that agents from the organization that is trying to convict him are listening.

On November 13, in the most dramatic declaration so far, President Bush announced that any non-US citizen that he declared a suspected terrorist—aliens resident in the United States for many years as well as soldiers captured in combat in Afghanistan—might be tried, at his sole discretion, by a military tribunal rather than in an ordinary criminal court. Such tribunals might be secret, and would be governed by special rules laid down by the secretary of defense, including provisions for the “qualifications” and “conduct” of lawyers representing the accused; the ordinary rules of evidence would not apply; the tribunal might declare a defendant’s guilt even though not satisfied of his guilt beyond a reasonable doubt; its verdict, including any death penalties it might order, could be taken by a two-thirds vote of its members; and that verdict might be reviewed only by the President, or the secretary of defense if the President so designates. This is the kind of “trial” we associate with the most lawless of totalitarian dictatorships. If any American were tried by a foreign government in that way, even for a minor offense, let alone a capital crime, we would denounce that government as itself criminal.

Bush’s military tribunal plan, as originally announced, provoked more criticism than any other part of the government’s new hard-line criminal justice rules, not only from liberal commentators and organizations, including The New York Times, but also from some conservatives, such as the columnist William Safire and Republican Representative Bob Barr of Georgia. Our ordinary federal courts, they said, have shown themselves fully capable of trying terrorists in the past, and could do so again. Trying aliens in secret military tribunals would outrage public opinion in the Muslim world and undermine our claims that we were seeking justice, not intimidation or revenge. Moreover, foreign democracies would be much less likely to extradite suspected terrorists to this country, or even to share information that might be used in prosecuting terrorists, if they considered our methods of trying them unfair or unsafe. (Indeed, as Aryeh Neier wrote recently in these pages, Baltazar Garzón, a prominent Spanish judge, has said that the European Convention on Human Rights, which almost all European nations have joined, would prohibit extraditing any suspects to a nation that used such tribunals as criminal courts.5)

On December 28, The New York Times reported that in response to these criticisms the government is considering revisions to the military tribunal scheme that would provide for a presumption of innocence; impose a beyond-reasonable-doubt standard for conviction; guarantee the right to counsel of one’s choice; require a unanimous decision imposing the death penalty; and provide for some form of appellate review.6 No such revisions have yet been announced, but it is significant that the Justice Department has decided to try Zacarias Moussaoui, probably the most important prisoner it has detained so far, in an ordinary federal court in Alexandria, Virginia, rather than in a special tribunal. (Moussaoui was arrested last August after suspicious behavior in a flight school, where he wanted instruction in flying but not in taking off or landing. It is widely suspected that Moussaoui would have been among the hijackers on September 11 if he had not been arrested earlier.)

Still, the government apparently intends to use special tribunals of some sort to try, for as yet undesignated offenses, a large group of people captured in Afghanistan and flown to a detention center at the American military base on Guantánamo Bay in Cuba, where prisoners are kept in small, low cages whose chain-link walls expose them to the weather, and are provided with an inch-thick mat and a bucket for a toilet. According to press reports, the prisoners so far transported to Cuba wore blacked-out goggles during the long trip, and their beards, which many of them regard as required by their religion, were shaved (allegedly to protect against lice). The prisoners presumably include Afghan soldiers fighting under the direction of the Taliban, which was the effective government of their country, and they would seem plainly entitled, as prisoners of war, to the provisions of the Geneva Conventions, one of which states that if there is doubt whether or not a person is entitled to be treated as a prisoner of war, the issue must be decided by a competent tribunal. Though Bush initially declared that the detainees were not deserving of the protections of the Geneva Conventions, and Attorney General John Ashcroft and Secretary of Defense Donald Rumsfeld agreed, Secretary of State Powell asked the President to reconsider that decision, among other reasons, in order to protect American soldiers taken captive in the future. Bush has now agreed to reconsider it. But he also prejudged the decision of any tribunals that might be organized: he said that the detainees were all “killers” who would not be granted the status of prisoners of war. His statement does not encourage hope that the decisions of the tribunals would be independent and fair.7

The government’s dubious laws, practices, and proposals have provoked surprisingly little protest in America. Even some groups that traditionally champion civil rights have, with surprisingly few reservations, supported the government’s hard line.8Polls suggest that nearly 60 percent of the public approves even the use of military tribunals.9 We should not be surprised at any of this. September 11 was horrifying: it proved that our enemies are vicious, powerful, and imaginative, and that they have well-trained and suicidal fanatics at their disposal. People’s respect for human and civil rights is very often fragile when they are frightened, and Americans are very frightened. The country has done even worse by those rights in the past, moreover. It suspended the most basic civil rights in the Civil War, punished people for criticizing the military draft in World War I, interned Japanese-American citizens in detention camps in World War II, and after that war encouraged a Red Scare that destroyed the lives of many of its citizens because their political opinions were unpopular. Much of this was unconstitutional, but the Supreme Court tolerated almost all of it.

We are ashamed now of what we did then: we count the Court’s past tolerance of anti-sedition laws, internments, and McCarthyism as among the worst stains on its record. That shame comes easier now, of course, because we no longer fear the Kaiser, or kamikazes, or Stalin. It may be a long time before we stop fearing international or domestic terrorism, however, and we must therefore be particularly careful now. What we lose now, in our commitment to civil rights and fair play, may be much harder later to regain.

  1. 1

    The bill the administration originally sent to Congress, on September 18, was even worse than the final act. It would have licensed the use in American courts against American citizens of information obtained through wiretaps abroad that would be unconstitutional here, permitted freezing all the assets of people accused of terrorism even before they were tried, and allowed indefinite detention when the Justice Department said only that it had “had reason to believe” rather than “reasonable grounds” for suspecting terrorism. Congress took longer than Attorney General John Ashcroft wanted to consider the bill—he said it would be dangerous to delay passage for more than a few days—and it deleted some of the bill’s most objectionable features.

  2. 2

    A CNN broadcast described the history and fate of some of the detainees. See CNN Presents, “The Enemy Within,” January 12, 2002. According to that broadcast, Mazen al-Najjar, for example, a Palestinian, has an American Ph.D., has lived in America for over twenty years, and has three children born here. In 1997 he was arrested for overstaying his visa: the Justice Department claimed he had ties to terrorist organizations, but a judge decided there was no evidence of that, and ordered him released in 2000. Immediately after September 11, he helped to organize a blood drive for its victims, but was picked up on the street and taken back into detention. He is held in twenty-three-hour lockdown solitary confinement, and the press is not allowed to interview him. The Justice Department has determined that it would threaten security to release him, but he has been allowed no hearing in which to attempt to rebut that claim.

    On the same broadcast, an interviewer suggested to Viet Dinh, an assistant attorney general, that the agency was not particularly interested in the violations with which people like al-Najjar were actually charged. “Right,” he said. “What we are doing is simply using our process or our discretion to the fullest extent to remove from the street those who we suspect to be engaging in terrorist activity.”

  3. 3

    Officials have steadily refused such information, citing security interests as justification. See Dan Eggen, “Delays Cited in Charging Detainees,” The Washington Post, January 15, 2002, p. A1.

  4. 4

    See Jeffrey Toobin, “Crackdown,” The New Yorker, November 5, 2001, p. 56.

  5. 5

    The Military Tribunals on Trial,” The New York Review, February 14, 2002.

  6. 6

    See Neil A. Lewis, “Rules on Tribunal Require Unanimity on Death Penalty,” The New York Times, December 28, 2001.

  7. 7

    As Kenneth Roth, the executive director of Human Rights Watch, pointed out in a letter to Condoleezza Rice, the national security advisor, America could have pursued the terrorists as criminals. “But since the United States government engaged in armed conflict in Afghanistan—by bombing and undertaking other military operations—the Geneva Conventions clearly do apply to that conflict.”

  8. 8

    See Laurie Goodstein, “Jewish Groups Endorse Tough Security Laws,” The New York Times, January 3, 2002.

  9. 9

    Full poll data are available at www .publicagenda.org/specials/terrorism/terror_pubopinion.htm.

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