Wash Post - Loss of Legal Protections for citizens & non

[Guest guest]

And I say, learn what you can now from these lists, as we might not be

around for much longer.

I am weighing my options.

Sheri

From Sherri Tenpenny, DO

http://www.washingtonpost.com/wp-dyn/articles/A58308-2002Nov30.html

In Terror War, 2nd Track for Suspects

Those Designated 'Combatants' Lose Legal Protections

By Lane, Washington Post Staff Writer

Sunday, December 1, 2002; Page A01

The Bush administration is developing a parallel legal system in which

terrorism suspects -- U.S. citizens and noncitizens alike -- may be

investigated, jailed, interrogated, tried and punished without legal

protections guaranteed by the ordinary system, lawyers inside and outside

the government say.

The elements of this new system are already familiar from President Bush's

orders and his aides' policy statements and legal briefs: indefinite

military detention for those designated " enemy combatants, " liberal use of

" material witness " warrants, counterintelligence-style wiretaps and

searches led by law enforcement officials and, for noncitizens, trial by

military commissions or deportation after strictly closed hearings.

Only now, however, is it becoming clear how these elements could ultimately

interact.

For example, under authority it already has or is asserting in court cases,

the administration, with approval of the special Foreign Intelligence

Surveillance Court, could order a clandestine search of a U.S. citizen's

home and, based on the information gathered, secretly declare the citizen

an enemy combatant, to be held indefinitely at a U.S. military base. Courts

would have very limited authority to second-guess the detention, to the

extent that they were aware of it.

Administration officials, noting that they have chosen to prosecute

suspected Taliban member Lindh, " shoe bomber " Reid and

alleged Sept. 11 conspirator Zacarias Moussaoui in ordinary federal courts,

say the parallel system is meant to be used selectively, as a complement to

conventional processes, not as a substitute. But, they say, the parallel

system is necessary because terrorism is a form of war as well as a form of

crime, and it must not only be punished after incidents occur, but also

prevented and disrupted through the gathering of timely intelligence.

" I wouldn't call it an alternative system, " said an administration official

who has helped devise the legal response to the terrorist attacks of Sept.

11, 2001. " But it is different than the criminal procedure system we all

know and love. It's a separate track for people we catch in the war. "

At least one American has been shifted from the ordinary legal system into

the parallel one: alleged al Qaeda " dirty bomb " plotter Padilla, who

is being held at a Navy brig, without the right to communicate with a

lawyer or anyone else. U.S. officials have told the courts that they can

detain and interrogate him until the executive branch declares an end to

the war against terrorism.

The final outlines of this parallel system will be known only after the

courts, including probably the Supreme Court, have settled a variety of

issues being litigated. But the prospect of such a system has triggered a

fierce debate.

Civil libertarians accuse the Bush administration of an executive-branch

power grab that will erode the rights and freedoms that terrorists are

trying to destroy -- and that were enhanced only recently in response to

abuses during the civil rights era, Vietnam and Watergate.

" They are trying to embed in law a vast expansion of executive authority

with no judicial oversight in the name of national security, " said Kate

, director of the Center for National Security Studies, a

Washington-based nonprofit group that has challenged the administration

approach in court. " This is more tied to statutory legal authority than J.

Edgar Hoover's political spying, but that may make it more dangerous. You

could have the law serving as a vehicle for all kinds of abuses. "

Administration officials say that they are acting under ample legal

authority derived from statutes, court decisions and wartime powers that

the president possesses as commander in chief under the Constitution.

" When you have a long period of time when you're not engaged in a war,

people tend to forget, or put in backs of their minds, the necessity for

certain types of government action used when we are in danger, when we are

facing eyeball to eyeball a serious threat, " Solicitor General Theodore B.

Olson, who leads the administration's anti-terrorism legal team in the

federal courts, said in an interview.

Broadly speaking, the debate between the administration and its critics is

not so much about the methods the government seeks to employ as it is about

who should act as a check against potential abuses.

Executive Decisions

Civil libertarians insist that the courts should searchingly review Bush's

actions, so that he is always held accountable to an independent branch of

government. Administration officials, however, imply that the main check on

the president's performance in wartime is political -- that if the public

perceives his approach to terrorism is excessive or ineffective, it will

vote him out of office.

" At the end of the day in our constitutional system, someone will have to

decide whether that [decision to designate someone an enemy combatant] is a

right or just decision, " Olson said. " Who will finally decide that? Will it

be a judge, or will it be the president of the United States, elected by

the people, specifically to perform that function, with the capacity to

have the information at his disposal with the assistance of those who work

for him? "

Probably the most hotly disputed element of the administration's approach

is its contention that the president alone can designate individuals,

including U.S. citizens, as enemy combatants, who can be detained with no

access to lawyers or family members unless and until the president

determines, in effect, that hostilities between the United States and that

individual have ended.

Padilla was held as a material witness for a month after his May 8 arrest

in Chicago before he was designated an enemy combatant. He is one of two

U.S. citizens being held as enemy combatants at the Navy brig in

ton, S.C. The other is Yaser Esam Hamdi, a Saudi Taliban fighter who

was captured by American troops in Afghanistan and sent to the U.S. prison

at Guantanamo Bay, Cuba, until it was discovered that he was born in

Louisiana.

Attorneys are challenging their detentions in federal court. While civil

libertarians concede that the executive branch has well-established

authority to name and confine members of enemy forces during wartime, they

maintain that it is unconstitutional to subject U.S. citizens to indefinite

confinement on little more than the president's declaration, especially

given the inherently open-ended nature of an unconventional war against

terrorism.

" The notion that the executive branch can decide by itself that an American

citizen can be put in a military camp, incommunicado, is frightening, " said

Morton H. Halperin, director of the Washington office of the Open Society

Institute. " They're entitled to hold him on the grounds that he is in fact

at war with the U.S., but there has to be an opportunity for him to contest

those facts. "

However, the Bush administration, citing two World War II-era cases -- the

Supreme Court's ruling upholding a military commission trial for a captured

American-citizen Nazi saboteur, and a later federal appeals court decision

upholding the imprisonment of an Italian American caught as a member of

Italian forces in Europe -- says there is ample precedent for what it is

doing.

Courts traditionally understand that they must defer to the executive's

greater expertise and capability when it comes to looking at such facts and

making such judgments in time of war, Bush officials said. At most, courts

have only the power to review legal claims brought on behalf of detainees,

such as whether there is indeed a state of conflict between the United

States and the detainee.

In a recent legal brief, Olson argued that the detention of people such as

Hamdi or Padilla as enemy combatants is " critical to gathering intelligence

in connection with the overall war effort. "

Nor is there any requirement that the executive branch spell out its

criteria for determining who qualifies as an enemy combatant, Olson argues.

" There won't be 10 rules that trigger this or 10 rules that end this, "

Olson said in the interview. " There will be judgments and instincts and

evaluations and implementations that have to be made by the executive that

are probably going to be different from day to day, depending on the

circumstances. "

The federal courts have yet to deliver a definitive judgment on the

question. A federal district judge in Virginia, G. Doumar, was

sharply critical of the administration, insisting that Hamdi be permitted

to consult an attorney. But he was partially overruled by the U.S. Court of

Appeals for the 4th Circuit, based in Richmond.

The 4th Circuit, however, said the administration's assertion that courts

should have absolutely no role in examining the facts leading to an enemy

combatant designation was " sweeping. " A decision from that court is pending

as to how much of a role a court could claim, if any. The matter could well

have to be settled in the Supreme Court.

Secret Surveillance

The administration scored a victory recently when the U.S. Foreign

Intelligence Surveillance Court of Review ruled 3 to 0 that the USA Patriot

Act, passed by Congress shortly after the Sept. 11 terrorist attacks, gives

the Justice Department authority to break down what had come to be known as

" the wall " separating criminal investigations from investigations of

foreign agents.

The ruling endorsed the administration's view that law enforcement goals

should be allowed to drive Justice Department requests for special

eavesdropping and search warrants that had been thought to be reserved for

counterintelligence operations. But the court went further, agreeing with

the administration that " the wall " itself had no real basis in pre-Patriot

Act law. Instead, the court ruled, " the wall " was a product of internal

Justice Department guidelines that were, in turn, based partly on erroneous

interpretations of the law by some courts.

There is no clear line between intelligence and crime in any case, the

court said, because any investigation of a spy ring could ultimately lead

to charging U.S. citizens with crimes such as espionage.

The decision overruled an earlier one by the lower-level Foreign

Intelligence Surveillance Court, in which seven judges sharply criticized

past Justice Department misstatements in applications for permission to do

secret surveillance.

Administration officials say that the ruling permits what is only sensible

-- greater sharing of information between federal prosecutors and federal

counterintelligence officials.

Thanks to enforcement of " the wall " by FBI lawyers, they note, pre-Sept. 11

permission to search Moussaoui's computer was not sought, a crucial missed

opportunity to prevent the attacks.

In practical terms, the ruling means that the attorney general would still

have to convince the Foreign Intelligence Surveillance Court that he has

probable cause to believe that a given subject of a wiretap or search is an

agent of a foreign terrorist group, a standard that is not dissimilar to

the one required for warrants in ordinary criminal cases.

Yet civil libertarians say that targets of such investigations who end up

being ordered out of the country or prosecuted would lose a crucial right

that they would have in the ordinary criminal justice system -- the right

to examine the government's evidence justifying the initial warrant.

" So the government starts off using secret surveillance information not to

gather information upon which to make policy, but to imprison or deport an

individual, and then it never gives the individual a fair chance to see if

the surveillance was lawful, " said.

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Sheri Nakken, R.N., MA

Vaccination Information & Choice Network, Nevada City CA & Wales UK

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