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.
The sense that European human rights commitments are having an impact despite the Administration's guff was even clearer when Defense Secretary Donald Rumsfeld effected a brief reverse-rudder from George W. Bush's military tribunal order. This past fall the Administration fumed when UN Human Rights High Commissioner Mary Robinson denounced the tribunal order, but Rumsfeld's new plan to require public trials, unanimous votes for a death sentence and additional layers of review was clearly designed to quiet international criticism. Rumsfeld's amendment to the Bush order does not get to the heart of the constitutional problem, however. The tribunals still represent an unlawful seizure of judicial authority by the President. And Rumsfeld's March 28 admission that prisoners in Guantánamo Bay could stay locked up even if acquitted of charges reveals what is in effect a permanent policy of internment without trial, a policy made possible only by the Al Qaeda prisoners' continued status in a no man's land between the Geneva Conventions and US law. This policy has European allies nearly as alarmed as they are about the tribunals.
There are two important lessons here. One is that in the months since September 11, players in the federal system of checks and balances--Congress and federal judges--have largely failed to resist the Bush Administration's constitutional power grab. The second lesson, however, is that resistance is more than possible. With state courts sometimes better guardians of civil liberties than are the Rehnquist-era federal courts, and with Europe deeply invested in its Continental human rights covenants, it may turn out that local and transnational coalitions will become an effective means of preserving civil liberties. State courts at home and allies abroad are turning out to be the most compelling protectors of the essential American values the Bush Administration has been ready to sell down the river.