Those who believe that civil liberties are a bedrock of a healthy and secure democracy are beginning to win support in cases stemming from the events of September 11. As shock has given way to a renewed appreciation for the rule of law, courts have stood up to Attorney General John Ashcroft and for civil liberties from Detroit, Michigan, to London, England.
In recent weeks:
§ a federal judge in New York threw out an indictment against Osama Awadallah, finding that he was threatened and denied access to a lawyer in prison and that the government had violated the “material witness” statute in detaining him;
§ a New Jersey state court ruled that the identity of all people detained in its state facilities must be disclosed, including the many who have been held on secret immigration charges in the September 11 investigation;
§ a federal court in Detroit declared unconstitutional Ashcroft’s decision to try in secret all people picked up on immigration charges in the September 11 investigation;
§ a federal judge criticized the government’s efforts to bar John Walker Lindh’s lawyers from interviewing witnesses held at Guant&aacute;namo Bay who the government admits have information tending to show that Lindh is innocent; and
§ a federal judge in the District of Columbia questioned the government’s closure of the Holy Land Foundation, the nation’s largest Muslim charity, without notice, a hearing or even a formal charge that it had engaged in illegal activities.
Ashcroft is losing even in London, where a judge in April dismissed extradition proceedings against Lotfi Raissi, an Algerian man whom US authorities had initially identified as the “lead instructor” of some of the September 11 hijackers but ultimately could not even prove had falsified an application for a pilot’s license.
New challenges are being filed almost daily. In April the Center for Constitutional Rights filed a nationwide class action contesting the government’s pretextual use of immigration authority to detain Arab and Muslim foreign citizens long after they have agreed to leave the country. The center has also brought two suits claiming that the detentions at Guant&aacute;namo Bay violate constitutional and international law. A lawyer for a terrorism suspect has sued Ashcroft over his new policy authorizing government officials to listen in on attorney-client conversations without probable cause or a judicial warrant. And an Indian man apprehended on September 12 with box cutters, and still being held, recently challenged the government’s conduct in holding him for nearly two months without access to a lawyer.
The more candid of the Administration’s defenders might now concede that civil liberties have been curtailed. But if we have prevented another terrorist attack, who’s to say it’s not worth the cost? The trouble is, one cannot know what might have happened had the government respected basic principles like due process, political freedom and the rule of law. But a single fact suggests that the claims of efficacy are overstated: Of the more than 1,500 people arrested since September 11 in the dragnet investigation of that day’s crimes, not one has been charged with any involvement in the crimes under investigation.