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I am beginning to suspect that Nation readers may not fully appreciate the challenges Attorney General John Ashcroft faces. What would you do in his place? Your intelligence agencies had no advance knowledge of the September 11 plot and don't appear to know much more about future attackers. Airport security screeners are letting test bombs and guns pass at alarming rates, and your immigration agency is so hapless that it issued visa extensions to two of the hijackers six months after they died flying planes into the World Trade Center towers. When you consider the threat from their side and the incompetence on ours, it's understandable that Ashcroft has cast his net so wide. He's shooting in the dark. In fact, the expanse of his net is probably inversely proportional to the depth of the intelligence he has received.
But just as with the terrorists themselves, understanding Ashcroft's motives does not justify his actions. To date, despite the thousands of Arab and Muslim immigrants arrested, searched, profiled and questioned, Ashcroft has charged only a single person--Zaccarias Moussaoui--with any involvement in the attacks of September 11. And he was arrested before the attacks occurred. Such broad-brush tactics are unlikely to succeed, for they give notice to potential targets, allowing them to evade detection while alienating the very communities we must work with to identify potential threats who may be living among them.
Ashcroft has shown no signs of getting closer to his target. And the less he finds, the wider he sweeps. He recently announced that he was extending to 3,000 more people his much-criticized initiative to subject male immigrants from Arab countries to "voluntary" interviews, despite the fact that the initial interviews have led to no further charges in the investigation. And having learned how easy it is to use immigration law as a pretext for criminal law enforcement when you lack probable cause, the Justice Department is now preparing to enlist local police officers to help enforce immigration law, a disastrous proposal likely to drive immigrant communities even deeper underground.
The lengths to which Ashcroft will go was revealed most recently by his indictment of Lynne Stewart, a 62-year-old New York attorney who has made a career of courageously taking on clients for whom few other lawyers are willing to risk their reputations. Her most notorious such case was defending Sheik Omar Abdel Rahman in his 1995 criminal trial for conspiring to bomb the tunnels into Manhattan. Now she's charged with providing "material support" to the sheik's organization, the Egypt-based Islamic Group, largely by abetting communications between the sheik--whom prison regulations prohibit from communicating with virtually anyone in the outside world--and others in the group.
The government simultaneously announced that it will make Rahman its test case for its unprecedented initiative to listen in on attorney-client communications. Confidential exchanges with lawyers have long been sacrosanct, because they are critical to any fair legal process. In the past, they could be intruded upon only with a warrant based on probable cause that the communications were intentionally furthering criminal activity, but the new regulations permit monitoring without a warrant or probable cause. But under regulations issued after September 11, the government claims the authority to monitor attorney-client communications without establishing probable cause for believing that the communications are being used for illegal ends, and without obtaining authorization from a judge.
Most troubling, Ashcroft is prosecuting Stewart although she has not been charged with furthering any illegal or violent activity of the Islamic Group, a wide-ranging Islamic political movement that engages in a great deal of lawful activity in addition to terrorism. While many have criticized the government for targeting a lawyer, of far more concern is its criminalization of speech and associations having no connection to terrorism. Unable to link Stewart to any actual terrorist activity in any way, Ashcroft has resorted to guilt by association. As a US citizen, Stewart will at least have an opportunity to defend herself in a public trial. Not so the hundreds of noncitizens still being detained on immigration charges in connection with the September 11 investigation, many long after their immigration proceedings have concluded. Under orders from Ashcroft, they are being tried in secret proceedings closed to the public, press, legal observers and family members.
In a major setback for the Ashcroft agenda, US District Judge Nancy Edmunds on April 3 declared the closed proceedings unconstitutional. She ruled that open trials are a fundamental feature of our justice system and that any closure must be carried out not in the sweeping manner that Ashcroft so favors but through means narrowly tailored to protect national security interests. The government has appealed, arguing that to act in a more narrowly tailored fashion might tip off Al Qaeda to what we do and don't know. But one has to wonder whether the government's real concern isn't that opening the proceedings might tip off the public to just how wildly John Ashcroft is shooting in the dark.
How cool is Jennifer Harbury? She is currently arguing her own case before the Supreme Court, demanding the right to sue the government because, she maintains, its leaders deliberately misled her about the murder of her husband, a Guatemalan rebel leader named Efrain Bamaca Velasquez who was killed in army custody during the counterinsurgency war in Guatemala in the early 1990s.
Harbury has a case. The State Department has confirmed that Col. Julio Roberto Alpirez, who was present during Bamaca's interrogation/murder, was a paid CIA asset. A CIA report alleges that Alpirez did the dirty deed himself. When then-State Department official Richard Nuccio informed Senator Robert Torricelli of that, Nuccio immediately found himself the target of a Justice Department investigation. A federal prosecutor accused him of betraying America by conspiring with Torricelli to blow Alpirez's cover, of destroying CIA officers' careers and of being an agent of the guerrillas. Although the United States offered no official charges or accusations, in a highly unusual move the CIA demanded that the State Department strip Nuccio of his security clearance, thereby depriving him of his livelihood. Harbury endured a thirty-two-day hunger strike to force those officials to come clean. She is now arguing that she could have saved her husband's life through the US court system had she known the truth during the period between his capture in March 1992 and his murder in 1993 or 1994.
A report by the President's Intelligence Oversight Board rejected the charge of deliberate lying by US officials but admitted that if the government had bothered to investigate "when Jennifer Harbury first raised the issue of her husband's fate" in the spring of 1992, the State Department "might have been able at a much earlier date to provide her with useful information." The key word here appears to be "useful."
Warren Christopher, Anthony Lake and the other Clinton Administration officials named by Harbury are probably right when they argue that leveling with her at the time would have made little difference in saving her husband's life. US courts do not have jurisdiction over the Guatemalan military (though US foreign policy officials often do). They also deny that they lied. But for procedural reasons, the ex-officials have to argue that regardless of whether they lied, a US citizen has no legal right to sue a public official who does lie. Solicitor General Theodore Olson filed an amicus brief arguing on behalf of the government's right to lie: "It is an unfortunate reality that the issuance of incomplete information and even misinformation by government may sometimes be perceived as necessary to protect vital interests," he maintains.
This particular case stinks for more reasons than can be precisely counted. In addition to the above, Bamaca was killed by a genocidal government that enjoyed the enthusiastic support of Ronald Reagan and George H.W. Bush. This is not only my opinion; it is the view of the Guatemalan Historical Clarification Commission's 1999 report, which condemns the United States for aiding a "criminal counterinsurgency" against the nation's indigenous Mayan population. America's Guatemala policy was anticommunism gone mad.
Moreover, if David Brock is to be believed, Olson is himself tainted by his lies to Congress. According to Brock's Congressional testimony, Olson lied during his confirmation hearings about his role in the Richard Mellon Scaife-funded "Arkansas Project," run out of the offices of The American Spectator and designed to undermine the Clinton presidency by any means necessary. What a surprise, therefore, that he thinks it's OK for the government to lie as well.
But the sorry truth is that the question of the government's right to lie is a lot more complicated than it looks. The Supreme Court has repeatedly enshrined in law the extremely provocative statement enunciated in the aftermath of the Cuban missile crisis by Assistant Secretary of Defense for Public Affairs Arthur Sylvester: "It's inherent in [the] government's right, if necessary, to lie to save itself." Dishonest officials have stretched the "national security" definition beyond recognition to protect not only thuggish murderers but also narrow political interests. But the principle itself is not wholly unsound. Although lies undermine the confidence in, and practice of, democracy, in the wake of the September 11 attacks, one can imagine circumstances in which a temporary lie might save lives without endangering the Constitution.
The problem is how to set enforceable limits. Government officials lie all the time. And while it is a crime to lie to Congress and to commit perjury, these acts are prosecuted in such a haphazard and nakedly political fashion that they can hardly serve as much of a deterrent. Lawrence Walsh's legitimate prosecutions of Reagan Administration officials who lied about matters of state were mocked by allegedly high-minded pundits like David Broder and George Will and overturned in a cowardly fashion by defeated President George H.W. Bush after the 1992 election.
Meanwhile, a fanatical cabal inside the Republican Party and Kenneth Starr's office manipulated these same laws to impeach President Clinton and disarm his popular agenda over a private lie not about a matter of state but a routine case of almost adultery. Given that hundreds of thousands if not millions of Americans have told this same type of lie to protect their families (or themselves) from humiliation, they saw this partisan gambit for what it was, punishing its perpetrators in the 1998 election. But the self-righteous pooh-bahs of the punditocracy--many of whom celebrated the Reagan-era liars and quite a few of whom told their share of adulterous lies--behave as if their hypocrisy were somehow patriotically inspired.
Jennifer Harbury continues to fight not only for justice for her husband but also for a reasonable definition of the government's right to lie. Bully for this brave woman who, despite her personal tragedy, takes democracy more seriously than its alleged protectors. She is a patriot to put the pundits to shame.
"Debacle in Kwangju." Were Washington's cables read as a green light for
the 1980 Korean massacre? (1996)
"Stiglitz Roars Back" (2001)
The OSI's intent to disinform
Received responses that were less than warm.
The Pentagon now says it doesn't need
An office just to lie and to mislead.
There is, though, one false fact they're not eschewing:
The notion that the brass know what they're doing.
Bureaucratic timidity and turf battles needlessly put many Americans at risk.
Secrecy is the guiding philosophy of the Bush Administration.
We can't allow fear to erode commitment to our constitutional liberties.
Current discussions tend to trivialize acts that are not only immoral but illegal according to covenants the United States has signed.
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