Recent days have brought the first tentative but welcome roadblocks to the Bush Administration's war-fevered assault on civil liberties. In Newark, Superior Court Judge Arthur D'Italia, calling secret arrests "odious to a democracy," ordered the Immigration and Naturalization Service to release the names of post-September 11 detainees to the New Jersey ACLU. Although the release of the names has been delayed pending a federal government appeal, Judge D'Italia's courageous ruling is a significant victory for constitutional principle.

Meanwhile, a Freedom of Information Act lawsuit requesting the names of detainees and related information continues in federal court in Washington, DC. The Center for National Security Studies, which is representing numerous civil liberties and media outfits (including The Nation), recently filed a brief supporting its own request for this material. The Administration is expected to file a response in mid-April, and oral arguments could take place weeks after that.

Some of the most important restraints are being applied from abroad. In the case of accused hijacking conspirator Zacarias Moussaoui, Attorney General John Ashcroft confronted a clear choice between his domestic political goal of advancing the death penalty and the international goal of a palatable legal campaign against Al Qaeda. Ashcroft tried to have it both ways, committing himself to capital charges against French citizen Moussaoui while seeking further cooperation in the case from the anti-capital-punishment French. The result: French officials have publicly promised to withhold any evidence that might lead to a death sentence. Ashcroft's prosecutors are on the hook, stuck with a sketchy conspiracy case requiring proof that the silent Moussaoui, grounded in jail on September 11, was a sufficiently active and knowledgeable architect of the Al Qaeda Trade Center and Pentagon attacks to merit a capital conviction.

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