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Finally, a reporter had the temerity to question Bush on Friday regarding the ignominious collapse of Enron Corp. run by Kenneth L. Lay, a Bush family intimate and top campaign contributor.
It scarcely seems possible, but two of the staple items on the conversational menu of the left these past years might well be on the edge of disappearance, or at least a change in content. Mumia Abu-Jamal is no longer on death row. Pacifica's wars are amid final settlement. In both instances, it's a good advertisement for pertinacity.
That stentorian denunciation of the Administration came last week not from a Democrat but from conservative Republican Congressman Dan Burton.
If I had been so bold as to have wagered that Al Gore would succeed in the latest Supreme Court round, I would have quickly called my bookie this morning after breakfasting in the Court's cafeteri
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."