I do not know what we should do about Iraq. But to reach the right answer, we should focus on the right question: What approach seems the best bet to reduce the very large risk that a thermonuclear explosion-whether engineered by Iraq, Al Qaeda, or someone else-will obliterate Washington, New York, or another American city (or cities) at some point during the next two or three decades?
JIM LEHRER: Margaret Warner talked with Deputy Attorney General Larry Thompson last week, beginning with why so much of the legal proceedings have been conducted in secret.
LARRY THOMPSON: Nothing that we have been done has been enacted in secrecy. Every measure that we have undertaken is out in the open. Every measure that we have undertaken has had the sunlight of public attention. And almost all measures are not done unilaterally by members of the Department of Justice. These measures are subject to judicial review by judges and other judicial officers.
MARGARET WARNER: But let me just ask you for instance, the chief immigration judge, who just explained to our viewers also is part of the Department of Justice, Michael Creppi, issued an order saying, and I’ll just read it to you, that these hearings, these deportation hearings, were to be held in secret, "no visitors, no family, no press, not even confirming whether it’s on the docket."
LARRY THOMPSON: The only thing that has been secret, if you will, has been the list of the individuals and the actual hearing itself. But the fact that an individual was taken into custody, the fact that he or she was in a particular detention facility, that was open to the public, if you will, to their friends, to their relatives, they could make phone calls.
This was not done in the dark of night. People do not disappear in this country and we have really not done anything in secret, if you will. The actual administration of justice with respect to some of these cases was done, what we call in camera, because of national security and other concerns, and even that has been subject to judicial review, but nothing has been done in secret.
The biggest civil-liberties issue that the nation has confronted since September 11-indeed, the biggest in many years-is getting only a fraction of the attention it deserves. One reason is confusion over exactly what is at stake. The real issue is not whether the government can detain "enemy combatants" in military brigs without criminal charges. It can. The U.S. Court of Appeals for the 4th Circuit so stated in a July 12 preliminary ruling. Based on World War II precedents, it seems almost certain that the Supreme Court will agree.
The Constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.
To understand the Bush administration’s preference for military detention over criminal prosecution-and the dangers of its approach-compare the case of American Taliban John Walker Lindh with those of Jose Padilla, the suspected dirty-bomb-plotter who was arrested after flying into Chicago; and Yasser Esam Hamdi, the Louisiana-born Saudi Arabian captured in Afghanistan.
Some important national policies have been adopted lately, on diverse fronts: The Bush administration has made a stunning claim of unilateral power to pick up anybody the military declares to be an "enemy combatant" and jail him or her indefinitely. The president has announced an unprecedented policy of launching pre-emptive military strikes whenever he sees fit against Iraq and any other nation or terrorist group he deems threatening. The Supreme Court has ruled that the death penalty can be imposed only by juries, not by judges, and that retarded murderers may not be sentenced to death at all.
The Bush administration now has in custody in this country three U.S. citizens who are suspected of being members of Al Qaeda or sympathizers: John Walker Lindh, Jose Padilla (aka Abdullah al-Muhajir), and Yasser Esam Hamdi. Its handling of all three cases is troubling. This is not to say that the correct course is clear. These are difficult cases for which our legal system was not designed. And onrushing events keep exposing flaws in each newly minted proposal for how to guard against the unprecedented dangers we face without sacrificing our fundamental freedoms. So we grope ahead, by trial and error.
I was busy mapping out a column urging Congress to help the Bush administration prevent terrorist mass murders by giving it new investigative and detention powers-a proposal likely to horrify civil libertarians. Then I heard that the administration might be on the verge of making a claim that would horrify me: that it already has near-dictatorial powers to lock up suspected terrorists, under the "law of war," without meaningful judicial review.
As they plunge gleefully into the good old blame game, the news media have paid little attention to the most fundamental and correctable reasons for our failure to prevent the catastrophe of September 11 and our needlessly large vulnerability to the catastrophes being planned for us.
Having committed no crime-indeed, without any claim that there was probable cause to believe he had violated any law-[Osama] Awadallah bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct…. [He was] repeatedly strip-searched, shackled whenever he [was] moved, denied food that complies with his religious needs … prohibited from seeing or even calling his family over the course of 20 days and then [pressured into] testifying while handcuffed to a chair. -U.S. District Judge Shira A. Scheindlin of Manhattan, April 30
The unfortunately named Osama Awadallah was not the only one. Not by a long shot. Despite the unprecedented secrecy imposed by Attorney General John D. Ashcroft, evidence has mounted that his Justice Department has put hundreds of harmless Muslim men from abroad behind bars for far too long, treated many of them worse than convicted criminals, and arguably violated their constitutional rights-all without finding enough evidence to charge a single one of those arrested since September 11 with a terrorist crime or conspiracy.
One federal judge has ruled illegal the government’s use of the "material witness" statute to incarcerate Awadallah. Another has found unconstitutional Ashcroft’s effort to impose blanket secrecy on deportation proceedings. A New Jersey judge ordered release of the names of detainees in that state. (The Justice Department is appealing all of these decisions.) Judges have also questioned other government actions, and the media have published numerous accounts of gratuitous mistreatment and verbal and physical abuse. It’s time to shed the sunlight of public hearings on these detentions, which have swept up between 1,100 and 2,000 Muslim foreigners (if not more), the vast majority of whom have eventually been deported or released as harmless.
