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The US Supreme Court's stunning 5-4 stay Saturday of the Florida
undervote count--less than 24 hours after the equally stunning Florida
Supreme Court decision ordering that same count--illuminat
On November 27, Samira Dahduli waited in the Amman, Jordan, airport to pick up her husband, Ghassan, who was being deported after two months in a Denton, Texas, INS detention facility. Having lived in the States for twenty-three years, she had arrived in Jordan just weeks before with her five children, all US citizens, with the expectation that Ghassan would follow. But when the flight came, she saw no sign of her husband, a Palestinian with a Jordanian passport. She was about to leave when her 15-year-old son spotted his father surrounded by Jordanian security and American INS agents. Her son recognized one: Donna Chabot, an INS criminal investigator who had attended hearings in Dallas wearing a jacket with an antiterrorism task force insignia.
Samira Dahduli returned home and waited for her husband's call. After a week she still hadn't heard from him. "I would love to hear his voice," she said from a furnished apartment she has rented in Amman. Friends there tell her not to worry. "They need to make sure that he is not a danger to his community," she said. "Everyone says that this is normal procedure."
If the first chapter of the 9/11 detention story was the rounding up of 1,200 people, Dahduli's case ushers in the next phase, in which the government will decide their fate. Amnesty International believes that Dahduli is the first 9/11 deportee who could be facing ill treatment or torture in another country, says Angela Wright, Amnesty's chief US researcher. The arrest at the Amman gate and the accompaniment by a US task force member are troubling and unusual, according to immigration advocates and Dahduli's Dallas lawyer, Karen Pennington. "Nobody represents him now," said Pennington. "They took him away, and now he will be without the protections of American law, and they can torture him as much as they want."
Dahduli had a tense relationship with the US government well before September 11. He had been a leader of the Islamic Association for Palestine, an Illinois-based nonprofit with an office in Texas that has been the subject of federal scrutiny for allegedly having ties to Hamas. On September 25, 2000, federal agents confronted Dahduli in a Wal-Mart parking lot and then threatened to deport him, but offered to halt the proceedings if he agreed to become an informant on the IAP and other Islamic organizations. The FBI warned him that if he refused and was deported to Jordan, officials there would not be so understanding, according to three lawyers who worked on his case. Says Pennington, "The FBI said he would be treated a lot better by them than he would be by Jordanians." Elise Healy, a lawyer who represented him during the early deportation proceedings, adds, "He was perfectly willing to give information if he had it. But he was unwilling to be a lifetime mole." Dahduli not only rejected the government's offer but made it public, and news of it soon appeared on the Internet. "He became useless to them," says Healy. The INS began deportation proceedings but set him free on $50,000 bond.
Meanwhile, Dahduli was pursuing several avenues in immigration court to stay in the United States. He also filed an asylum claim, arguing that the FBI would paint him as a terrorist if he was returned to Jordan, rendering him vulnerable to torture. Amnesty has documented Jordan's practice of torturing terrorist suspects. In a trial last year in Jordan of Al Qaeda associates accused of planning bombings in Israel and Jordan during the millennium celebrations, the defendants testified that they had falsely confessed after beatings that included shabeh (suspending the victim by the feet with arms tied behind the back) and falaqa (lashings on the soles of their feet, sometimes followed by dousing in salt water). In the mid-1980s, in order to penetrate the Abu Nidal organization, responsible for 900 deaths or injuries in twenty countries, Jordanian security moved against suspects' family members.
In the wake of the September 11 attacks, INS officials revoked Dahduli's bond and arrested him on September 22 at his home in Richardson, Texas. A few days later, news accounts said, the name of Dahduli had turned up in an address book of Wadih el Hage, a former personal secretary to Osama bin Laden who was convicted in the 1998 bombings of the two US embassies in Africa. Pennington says that in the 1980s, when the two were students in Tucson, Dahduli and el Hage were members of the same mosque, the Islamic Center of Tucson. Later, they had a brief encounter in 1998 at a Dallas restaurant.
In late November, Dahduli gave up his asylum claim and agreed to be deported to Jordan. Now, in the Dallas Muslim community, "everybody is sick and worried," said a colleague at Dahduli's mosque, where he was a leader. INS spokesman Russ Bergeron said the INS accompanies deportees who pose a risk of flight or a risk to public safety. He declined to comment on Dahduli and denied the possibility of torture. "As a signatory of the torture convention it is a US policy not to deport someone to a country that there is reasonable cause to believe that person will be tortured or physically or mentally abused," he said. (Chabot's voicemail says she won't return calls until December 11. Lynn Ligon, INS spokesperson in Dallas, says Chabot is "on leave" until then. The Jordanian Embassy did not return e-mails or calls.)
Other 9/11 detainees could encounter similar problems. The government has reported links to Al Qaeda among only ten to fifteen detainees; the rest are being held on material-witness warrants and on immigration charges for violations like overstaying visas or lying on documents. It is doubtful that they'll be allowed to stay, although under the revamped "responsible cooperators" program, some who offer helpful information might remain. Many, however, will likely be deported, often to countries that don't offer protection from interrogational abuse.
It's possible that the Jordanian government is holding Dahduli as part of a routine check on a man with a native passport who has been detained in the United States; or maybe Jordan has some information on Dahduli; or Dahduli may have made an extradition deal with the United States and Jordan, in which he agreed to work as an informant (his lawyers and wife deny this); or perhaps, as Pennington fears, the FBI hopes to reap the benefits of interrogation tactics that contravene US law.
Why did Dahduli decide to abandon his fight with the US government and agree to be deported to Jordan? Pennington says it was because his application to the United Arab Emirates took too long, and he wanted to get out of jail. An Amnesty memo on post-September 11 human rights abuses, which describes Dahduli's case without naming him, says he was shackled during contact visits, held in solitary confinement for months and allowed only one hour of exercise per week. "He seemed to be treated more harshly than other detainees," said Wright of Amnesty. Could America's justice system have appeared so bereft of due process that he preferred the possibility of torture in Amman? "We had exactly that discussion," said Pennington. "If he didn't end up killed in Jordan, he thought he would be treated much more fairly there. He thought he would get out much more quickly."
How short the memory of even our more respected pundits. Take Thomas L. Friedman, who argued in the New York Times on Sunday that because we now face an enemy unlike any other, "Atty.
It is already a cliché that the attacks of September 11 "changed everything." One thing they do seem to have changed is liberals. Harvard law professor Laurence Tribe, a stalwart defender of civil rights and civil liberties, has condoned the use of military tribunals and the detention of more than 1,200 people, even though not a single detainee has been charged in connection with the attacks. His colleague Alan Dershowitz has suggested that torture may sometimes be justified, as long as it is authorized by a warrant. And George Washington law professor Jeff Rosen has argued that "the real story after September 11 is that America hasn't yet come close to abandoning any immutable principles of its national identity."
I cite these scholars not to single them out for criticism--all are important and courageous liberal voices--but as illustrations of a larger trend. Even liberals these days seem reluctant to criticize the government's response to the new threat of terrorism.
But a brief overview of what we've done so far in the interest of "homeland security" makes clear that we have already abandoned several of our "immutable principles" and have already begun to repeat the mistakes of the past.
Consider first the USA Patriot Act, an omnibus law of 342 pages enacted under in terrorem threats from Attorney General John Ashcroft, who suggested that if another terrorist incident occurred before Congress passed it, the blame would rest on Congress. The nuts and bolts of the law were worked out in a couple of all-night sessions and approved by large majorities the day they were introduced, even though members could not possibly have read the bill before casting their votes.
The Patriot Act imposes guilt by association on immigrants, rendering them deportable for wholly innocent nonviolent associational activity on behalf of any organization blacklisted as terrorist by the Secretary of State. Any group of two or more that has used or threatened to use force can be designated as terrorist. This provision in effect resurrects the philosophy of McCarthyism, simply substituting "terrorist" for "communist." Perhaps not realizing the pun, the Supreme Court has condemned guilt by association as "alien to the traditions of a free society and the First Amendment itself." Yet it is now the rule for aliens in our free society.
The Patriot Act also authorizes the Attorney General to lock up aliens, potentially indefinitely, on mere suspicion, without any hearing and without any obligation to establish to a court that the detention is necessary to forestall flight or danger to the community. Moreover, most of the more than 1,200 detentions already effected have not relied upon this authority; the detainees are instead held on pretextual criminal charges, as material witnesses and under pre-Patriot Act immigration authority. The government claims that about ten to fifteen of the detained may be linked to Al Qaeda, but what about the other 1,185? We can't know the answer to that question, because the Justice Department refuses to disclose even the most basic information about most of the detainees, such as who they are, what they are being held for or where they're imprisoned. On November 27 Ashcroft reluctantly identified about fifty people in custody on federal criminal charges but refused to identify more than 500 held on immigration charges, or even to put a number on those held as material witnesses or on state charges. Never in our history has the government engaged in such a blanket practice of secret incarceration.
Secrecy has become the order of the day. Criminal proceedings are governed by gag orders--themselves secret--preventing defendants or their lawyers from saying anything to the public about their predicament. The INS has conducted secret immigration proceedings, closed to the public and even to family members. The Patriot Act authorizes never-disclosed wiretaps and secret searches in criminal investigations without probable cause of a crime, the bedrock constitutional predicate for any search. And in a federal court of appeals in Miami in November, the government renewed its defense of the use of secret evidence in immigration proceedings, arguing that it needs the authority more than ever after September 11 to detain aliens by using evidence they cannot confront or rebut.
We can look forward to more secrecy still. A major impetus behind George W. Bush's presidential order authorizing the trial of suspected terrorists in military tribunals was the desire to avoid the constitutional necessity of disclosing classified evidence to the defendant in an ordinary criminal trial. In military tribunals, defendants have no right to a public trial, no right to trial by jury, no right to confront the evidence or to object to illegally obtained evidence and no right to appeal to an independent court. The military acts as prosecutor, judge, jury and executioner, and a death sentence can be imposed by a two-thirds vote of the military officers presiding.
We have used military tribunals to try our enemies in times of war before. There has been no declared war here, but perhaps that can be excused as a technicality. What cannot be excused is the extension of the tribunals to US residents who have no connection to Al Qaeda whatsoever but who are merely charged with "international terrorism," a wholly undefined offense, or of harboring someone so charged. Military tribunals have always been limited to the trial of belligerents--those fighting for the enemy, as the Supreme Court ruled in Ex Parte Milligan during the Civil War. Bush's order, however, allows the President to dispense with a criminal trial for any noncitizen accused of terrorism.
In one setting--attorney-client communications--secrecy will no longer be the rule. At the end of October, Ashcroft asserted the authority to listen in on such highly privileged discussions without a warrant.
Finally, we have succumbed to ethnic profiling. The Justice Department has instructed law enforcement agents across the country to "interview" more than 5,000 immigrants based not on any evidence that they are connected to Al Qaeda or the events of September 11 but solely on their age, gender and country of origin. The list looks suspiciously like what an enterprising lawyer would come up with if instructed to make a list of immigrant Arab men but to make it look like it wasn't based on ethnicity.
After facing some initial, albeit muted, opposition to its first antiterrorism legislative proposal to Congress, the Administration has chosen since then to bypass Congress altogether. It has also bypassed the public, instead instituting radical changes through rule-makings that go into effect the moment they are published and without notice or comment.
The Administration has made no case that its pre-existing authorities were insufficient. We have successfully tried serious terrorist crimes in open court with all the protections that customarily apply, without regard to whether the defendants were citizens or aliens. Before the Patriot Act, we could deport aliens who supported terrorist activity in any way and could detain aliens who posed a threat to national security or posed a risk of flight. And we had authority to conduct wiretaps and searches in foreign intelligence investigations without probable cause of a crime, as long as that authority was not used as an end-run around the constitutional rules that govern criminal investigations. The government has not even tried to show that the absence of any of its newfound powers contributed to its failure to identify and thwart the September 11 attacks.
Rather, what the Administration has said, time and time again, is that we are "at war." Apparently this statement renders any further argument unnecessary. Thus, Ashcroft tells us that because we are at war, "foreign terrorists who commit war crimes against the United States...are not entitled to and do not deserve the protections of the American Constitution." But putting aside whether we are "at war" without a declaration of war, the bigger problem is that we can't know whether someone is a "foreign terrorist" until those charges are proven in a fair proceeding. The military tribunals eliminate virtually every procedural check designed to protect the innocent and accurately identify the guilty.
These initiatives have sparked opposition from unlikely quarters. Police officers in Portland, Oregon, have refused to take part in the interviews of the 5,000 immigrant men, citing local laws against racial profiling. Spain has said it will not extradite eight men charged with complicity in the September 11 attacks unless we promise not to try them in military tribunals. Even William Safire has called the military tribunals "kangaroo courts." And on Capitol Hill, Republican Orrin Hatch has joined Democrat Patrick Leahy in calling on Ashcroft to answer questions before the Judiciary Committee about his recent executive initiatives.
So why are so many liberals satisfied with the government's response? Why hasn't there been a louder outcry about the measures adopted? Why hasn't the Administration been asked to justify its newfound authorities on a power-by-power basis? For one thing, we are afraid, and in times of fear we crave security above all. For another, in the face of an attack we naturally and properly seek to stick together, to show a united front. But in times of fear and crisis we also panic. And panic causes us to abandon our principles.
So have we abandoned any "immutable principles," as Jeff Rosen calls them? Well, political freedom has given way to guilt by association. Due process has given way to detention on the Attorney General's say-so. Public scrutiny has given way to secret detentions and secret trials. Equal protection under law has given way to ethnic profiling. And we're only three months into this. We can't afford to let liberal vigilance give way to complacency.
The Justice Department, Attorney General John Ashcroft declared in his confirmation hearings, is "the role model for justice the world over." But under Ashcroft that role model is rapidly losing the confidence of allies abroad and at home in the campaign against Al Qaeda. Spain--a country that after decades of Basque separatist movement bombings knows about fighting terrorists--openly declared that it will not extradite eight imprisoned Al Qaeda suspects if they could face military tribunals or the death penalty. Around the United States police chiefs--who know they need the ground-level trust of immigrant communities--are resisting Ashcroft's plan for an open-ended trawl among young men from Middle Eastern nations. Serious voices from Milwaukee to Madrid say that secret immigration trials, unreviewable military tribunals and warrantless monitoring of attorney-client conversations have little to do with real security.
While the cops speak up, most of Washington keeps its head down. Just before Thanksgiving, Senate majority leader Tom Daschle ducked questions about the military tribunals. Daschle now says he is "concerned" but adds, "until we see exactly how they will promulgate this new concept it's pretty hard for us to come to any conclusions." Translation: I'd rather not deal with this.
A few Congressional voices are at last beginning to ask bolder questions. It's mildly encouraging, for instance, that Democratic Senator Patrick Leahy succeeded in getting GOP colleague Orrin Hatch to sign a letter "inviting" Ashcroft to explain himself before the Judiciary Committee. In the House, Bob Barr and John Conyers have joined forces to breathe down the neck of their slow-moving Judiciary chairman, James Sensenbrenner. What has legislators rumbling--if still too quietly--is the sudden realization that through a barrage of executive orders and legal maneuvers, Ashcroft and Bush are systematically seizing on the Congressional prerogative to make the laws governing crime and punishment.
Pollsters declare that civil liberties have little resonance with the broad public now. But the public's sophistication and even outrage about legal issues sometimes runs ahead of the Beltway. What it will take to ignite that latent sensibility, though, is leadership, starting with vigorous questioning of Ashcroft when he appears before Leahy's committee.
The need for those questions grows daily. On November 27 Ashcroft announced that at least 550 people rounded up after September 11 remain in federal custody on immigration violations and another fifty-five on federal criminal charges. But once again he refused to provide details--claiming, absurdly, that he was protecting the privacy of detainees. Still left unanswered are basic questions including how many have been detained on the basis of secret evidence, a discredited practice that Ashcroft is now trying to revive, as Bruce Shapiro notes on page 6.
The relentless Spanish investigative magistrate Baltasar Garzón, prosecutor of Gen. Augusto Pinochet as well as those eight Al Qaeda suspects, warns against the direction Ashcroft seems to be headed in: "It is not sufficient to say: 'I have the evidence but I cannot make it public for fear of endangering my sources.' That is not a serious approach--it is simply illegal."
"The government destroyed my life," Mazen Al-Najjar said with both anger and wonder. "Slandered me with secret evidence. And all that time, they were after the wrong man. While I was in jail, the terrorists were loose."
A few days before Thanksgiving Al-Najjar sat across a coffee table from me, explicating the relationship between T.S. Eliot and contemporary Palestinian poetry, repeating a Ramadan joke he'd heard at his mosque the night before, pensively analyzing what he called the "terrible crime" of September 11 and how its perpetrators could best be fought. But mostly Al-Najjar talked about the three and a half years he spent in jail, based on still-secret evidence alleging terrorist associations. He stayed locked up until a no-nonsense federal judge declared his detention unconstitutional in May 2000, and an immigration judge, in a new and more fair proceeding, declared the charge unfounded and last December ordered his release. Neither of us had an inkling that just a few days later, Mazen Al-Najjar would end up as one of the post-September 11 "disappeared."
On the morning of November 24, Al-Najjar left his apartment near the University of South Florida, where he used to teach, to get quarters for the laundromat. His wife was at work, his three daughters still in bed. Federal agents arrested him. A Justice Department press release, repeating the same allegations that had been thrown out of court last year, described his arrest as an effort to "address terrorism by using all legal authorities available."
I sought out Al-Najjar before his unexpected second incarceration because the case of this Gaza-born, US-educated PhD is a bellwether challenge to the constitutionality of secret-evidence antiterrorism trials. He had attracted supporters ranging from Republican Congressman Bob Barr to Democrat David Bonior. Yet here was Al-Najjar arrested again, once more labeled a terrorist, locked up for yet another Ramadan. Has the Justice Department uncovered new evidence linking him to Palestinian Islamic Jihad, the group he was once accused of aiding? Or to the September 11 plot?
According to the Justice Department, there is no new evidence. Al-Najjar's latest arrest is ostensibly on technical grounds. Although freed by court order of terrorism charges, he still is under a deportation order for overstaying his student visa. Although he is contesting that deportation (in mid-November he lost a case before the US Court of Appeals for the Eleventh Circuit, which he plans to take to the Supreme Court), the INS may hold someone under a final deportation order for up to six months while it seeks to deport him--but only if he poses a danger to the community or a risk of flight, neither of which the INS has been able to establish.
But the visa issue is just a smokescreen. In fact, Al-Najjar's latest detention appears to be the leading edge of an alarming strategy by John Ashcroft's Justice Department to resuscitate and expand secret-evidence trials and to prepare the way for the imprisonment of noncitizens for virtually unlimited terms.
Until September 11 the use of secret evidence in immigration cases appeared to be finished: All but one of the noncitizens held on the basis of secret evidence had been freed, a Congressional bill restricting the practice had passed the House Judiciary Committee and last year candidate George W. Bush himself denounced secret-evidence trials, after hearing complaints from Arab-Americans in Michigan. But now his Justice Department is seeking broader secret-trial powers than ever--with Mazen Al-Najjar a convenient guinea pig.
Al-Najjar's case aroused strong emotion in Florida even before he became a civil liberties cause célèbre. He arrived in the United States in 1981 after living in the United Arab Emirates. While earning a PhD from University of South Florida and teaching there, Al-Najjar helped establish an Islamic studies center that invited to its conferences a wide range of scholars and speakers from the Muslim world--some of whom espoused controversial views on Israel. In 1995, Al-Najjar's co-editor at the center's journal disappeared and later turned up in Syria as general secretary of Palestinian Islamic Jihad. As a result, the FBI--apparently convinced the center was a front-- seized its computers, videotapes and files and froze its accounts; USF, under intense media scrutiny as "Jihad U," conducted its own independent investigation.
Both inquiries cleared the center of any connection to terrorism--it was, a federal judge would later declare, "a reputable and scholarly research center." But local FBI officials arrested Al-Najjar, its executive director, anyway and detained him on secret evidence. What lay behind the charge was never made public, but court papers hint that agents decided, on murky evidence, that he helped raise money for Palestinian Islamic Jihad and Hamas.
Al-Najjar now believes the FBI may have been hoping to make him an informant. "But I hadn't done anything," he insists. "I hate violence. I have never been a paramilitary. I have never raised money for killers." Finally, last fall, Immigration Judge R. Kevin McHugh heard two weeks of evidence allegedly supporting the government's claim--and promptly slammed the Justice Department for a case "devoid of any direct or indirect evidence" to support imprisonment of Al-Najjar. He refused to rely on secret evidence, because the government did not provide a summary that offered Al-Najjar a meaningful opportunity to respond. Janet Reno, after a personal review of the record, open as well as secret, declined to bar Al-Najjar's release.
Facing the collapse of its terrorism case, the only face-saving course for the INS was to deport Al-Najjar through conventional channels. He had indeed overstayed his student visa. But deportation is no simple matter: Many of the logical destinations for Al Najjar--Egypt, Saudi Arabia--have grown hostile to stateless Palestinians. The INS ostensibly plans to deport him to the Emirates, but his attorneys (including Nation legal affairs writer and Georgetown law professor David Cole) believe it unlikely that the Emirates would welcome him back. Even as the INS is seeking his deportation, Al-Najjar has applied for political asylum, claiming he would face persecution in any of his former homes.
All this still leaves the matter of Al-Najjar's arrest a mystery. Even if the government intends to deport him, why jail a man who repeatedly demonstrated that he is not a flight risk and whose name has been cleared by an Attorney General and a federal immigration judge? Why issue a press release that resurrects allegations already thrown out of court?
The answer may lie, in part, with an accident of geography. Al-Najjar may not be a terrorist, but he is guilty of living in the territory covered by the Eleventh Circuit, one of the most notoriously pro-prosecution, law-and-order appellate benches in the country. Arguments presented by Ashcroft aide Douglas Ginsburg at a November 8 circuit court hearing on Al-Najjar's case suggest a specific goal: establishing a blank-check policy for terrorism prosecutions. Ginsburg argued that even though Al-Najjar has no connection to the September 11 attacks, those attacks should convince the appellate court to set aside a district court ruling that his detention on secret evidence was unconstitutional and simply grant the Justice Department virtual unreviewable power to bring secret-evidence cases. Clearly, Justice thinks that in this courtroom it has perhaps the strongest chance in the nation of securing a new secret-evidence precedent.
At the same time, Mazen Al-Najjar's case plays into a little-noted Justice Department change in policy with sweeping implications for Palestinians and other stateless or unpopular migrants. In mid-November Ashcroft quietly issued a new regulation allowing indefinite detention of noncitizens under a final deportation order if they are deemed to be national security risks and if no country can be found to accept them. Call it Mazen's Law: Should the Eleventh Circuit hand the government its secret-evidence authority, under this new regulation Al-Najjar, a man never indicted or convicted of a crime, would once again be labeled a terrorist and face imprisonment without end.
During his first 1,307 days in prison, Al-Najjar came to believe, he said, that "the government's intention all along was to detain me, not deport me." His new arrest, and Justice's cynical use of discredited charges, suggests that he's right. This time Justice appears determined to keep him far away from the press and his Tampa supporters: Instead of a nearby immigration jail, he's been shipped to solitary confinement in Coleman federal penitentiary seventy-five miles away and may not make phone calls or receive visits from his family for thirty days. The latest--perhaps indefinite--imprisonment of Al-Najjar deeply calls into question the factual and moral basis for the Justice Department's ongoing dragnet.
I was sitting in the public library the day Bush's order creating military tribunals was issued. A loud young man was in a froth about it, and he announced to a companion that the "friggin' Nazis is takin' over. It's, like, secret police time." He rattled off the elements of the new order, and, despite the geeky over-the-top colloquialism with which he cloaked every phrase, got it entirely right: The President wants to allow the military to try noncitizens suspected of terrorism in secret tribunals rather than courts. No requirements of due process, public charges, adequacy of counsel, the usual rules of evidence or proof beyond a reasonable doubt. The cases would be presented before unspecified judges, with rulings based on the accusations of unidentified witnesses. The tribunals would have the power to execute anyone so convicted, with no right of appeal.
The young man's friend, a dour bespectacled sort, was unruffled. "This is America, man. That can't happen. If they tried to do it, you'd see. The American people would be up in arms in a minute." The minutes have been ticking right on by since then. With the exception of rather muffled and nonspecific reports of broad consternation among the "usual suspects" of human rights groups, most Americans remain remarkably unconcerned.
"Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution," says John Ashcroft in defense of the tribunals. There are a number of aspects of that statement that ought to worry us. First, the reasoning is alarmingly circular in Ashcroft's characterization of those who have not yet been convicted as "terrorists." Most lawyers fresh out of law school know enough to refer to "the accused" rather than presuming guilt before adjudication. Our system of innocent until proven guilty is hardly foolproof, but it does provide an essential, base- line bulwark against the furious thirst for quick vengeance, the carelessly deadly mistake--albeit in the name of self-protection. In the wake of even so vast a horror as the Holocaust, the orderly gravitas of the Nuremberg trials provided a model we might do well to follow.
Second, it is worrisome when the highest prosecutor in the land declares that war criminals do not "deserve" basic constitutional protections. We confer due process not because putative criminals are "deserving" recipients of rights-as-reward. Rights are not "earned" in this way. What makes rights rights is that they ritualize the importance of solid, impartial and public consensus before we take life or liberty from anyone, particularly those whom we fear. We ritualize this process to make sure we don't allow the grief of great tragedies to blind us with mob fury, inflamed judgments and uninformed reasoning.
In any event, Bush's new order bypasses not only the American Constitution but the laws of any other democratic nation too. It even exceeds the accepted conventions of most military courts. (I say this provisionally, given that the Bush Administration is urging that similar antiterrorism measures be enacted in Russia, Britain and the European Union.) Moreover, since our system of justice is the model for international human rights generally, in bypassing it we position ourselves outside virtually all international human rights treaties.
As the hours and days have passed since the order was published, a number of popular defenses of it have emerged: We should trust our President, we should have faith in our government, we are in a new world facing new kinds of enemies who have access to new weapons of mass destruction. Assuming all this, we must wonder if this Administration also questions whether citizens who are thought to have committed heinous crimes "deserve" the protections of American citizenship. The terrorist who brought to a standstill all three branches of government with mailed anthrax is, according to the FBI, probably a lone American microbiologist. Although authorities have not yet rounded up thousands of microbiologists for questioning, I wonder whether the government will soon be hauling them before military tribunals--for if this is a war without national borders, the panicked logic of secret trials will surely expand rather than contract domestically. A friend observes wryly that if the reasoning behind the order is that the perpetrators of mass death must be summarily executed, then there are some CEOs in the tobacco industry who ought to be trembling in their boots. Another friend who works with questions of reproductive choice observes more grimly that that is exactly the reasoning used by those who assault and murder abortion doctors.
As weeks go by, such thoughts seem not to be the subject of public debate. "There are situations when I do think you need to presume guilt over innocence," one citizen from Chattanooga told the New York Times. Conservative talk-show host Mike Reagan leads the pack in such boundlessly presumed guilt by warning that you might think the guy living next door is the most wonderful person in the world, you see him playing with his children, but in fact "he might be part of a sleeper cell that wants to blow you away." We forget, perhaps, that J. Edgar Hoover justified sabotaging Martin Luther King Jr. and the "dangerous suspects" of that era with similar sentiments. "A Communist," he said, "is not always easy to identify.... He is trained in deceit and uses cleverly camouflaged movements to conceal his real purposes.... Report your information immediately and fully to the FBI."
As an American citizen and as a lawyer, I want to just scream: This is a dangerous path. Few would argue that we be passive in the face of September 11, but what is shaping up now resembles the kind of secret global force that has created havoc in various parts of Africa and Latin America--where outfits like Executive Outcomes and other corporatized armies have been such efficient, brutal, invisible executioners. In such places, the devastation has been profound. People know nothing, so they suspect everything. Deaths are never just accidental. Every human catastrophe is also a mystery, and mysteries create ghosts, hauntings, "blowback" and ultimately new forms of terror.
Sadly, the old slander that a liberal is someone who has never been mugged is turning out to be true.
The media consortium review of disputed Florida presidential ballots concluded that George W. Bush would have won the recount the US Supreme Court blocked. So is the debate on the Court's intervention over? No way, says Vincent Bugliosi, the trial lawyer who wrote The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President (Nation Books). He spoke with Nation Washington correspondent John Nichols.
THE NATION: Does the consortium's conclusion absolve the Justices?
BUGLIOSI: Of course not. George Bush was inaugurated on January 20 not because of any finding that he had won Florida after a count of all valid undervotes; he was inaugurated solely because of the Supreme Court's ruling on December 12. The consortium's report does not change that reality at all. The finding by the consortium that Bush would have won a recount is totally, completely, utterly irrelevant.... No one claims the Justices were clairvoyant. So to judge these Justices by the final result--i.e., by the findings of the consortium, which I have no reason not to accept, rather than by their intentions at the time they engaged in their conduct--would be like exonerating someone who shoots to kill if the bullet happens to miss the victim.
THE NATION: But if you accept a review that says Bush would have won the recount, is it right to say that the Court "stole" the election for Bush?
BUGLIOSI: Let me offer an illustrative example: If the Los Angeles Lakers are leading the Boston Celtics by two points in the last game of the NBA playoffs with one minute to go, and suddenly the referee stops the game and hands the title to the Lakers, anyone would say the referee stole the NBA championship for the Lakers. Who would make the preposterous argument that if the Lakers and Celtics had played the game out the Lakers would win anyway, so what difference does it make what the referee did? Bush winning a media recount has nothing at all to do with the fact that the Justices intervened inappropriately to steal an election--and in so doing committed one of the most serious crimes in American history. The two realities are independent of each other.... A 5-year-old could see that, even if most of the media cannot.
THE NATION: So Bush remains a selected, not elected, President?
BUGLIOSI: Precisely. And we cannot have the Supreme Court picking our President--which is exactly what happened here--whether or not their pick ended up to be correct.
THE NATION: Since September 11, many voices that had taken up your call to impeach the Justices have gone silent. Will history, as well, be silent on this issue?
BUGLIOSI: Obviously September 11 dealt a solar plexus blow to this whole movement.... But I think that in the dispassionate light of the future, history is going to be harsh on us. We already know the moral bankruptcy and the destitution of character of these five Justices. They have proven that. But if we Americans meekly allow what the Court did to stand, without demonstrating our absolute outrage, what does that say about our character? I think history is going to be harsh not just on the Supreme Court but on the American people for allowing this to happen without marching in the streets. History will say we should have been in the streets.