Antiterrorism's methodology in the spotlight

THE BALTIMORE SUN

WASHINGTON - Attorney General John Ashcroft has taken on the threat of terrorism with a bruising combination of methods that have often come into conflict with civil liberties.

Ashcroft, among other things, has relaxed domestic spying guidelines, secretly detained 1,200 Middle Eastern men accused of immigration violations and incarcerated two U.S. citizens without charges - one accused of fighting for the Taliban, the other of plotting a terrorist attack.

Ashcroft's actions have won praise and condemnation. His champions insist that perilous times demand extraordinary measures. His critics charge that he has gone too far and trampled on basic freedoms.

This tug-of-war over civil liberties and who is entitled to them is playing out in several federal courtrooms, as the government tries to convince judges that its response to the attacks of Sept. 11 has been appropriate.

A fresh dispute emerged recently with the release of a May 17 opinion by the secret federal court that oversees terrorism-related wiretaps and electronic spying. The court refused to give Ashcroft the expanded powers he sought.

In a sharp rebuke, the court found that the Justice Department, largely during the Clinton years, had misled the court at least 75 times with erroneous information in its requests.

The department has fared a little better with some appellate courts which have signaled their tilt toward the government's position. But last week, in the first sign that civil liberties groups might prevail on the issue of courtroom secrecy, a three-judge panel of the federal appeals court in Cincinnati issued a harsh rebuke of the government's efforts to close an immigration hearing, and ordered it opened to the public. The government has not said if it will appeal.

Despite the fierce courtroom battles, legal scholars say that when looked at over the course of American history, the government's wartime measures have grown less restrictive with each passing conflict - and the current war seems no different.

"After a success, we think the restrictions on civil liberties were excessive," said Cass R. Sunstein, a constitutional law professor at the University of Chicago Law School. "Hindsight after each successful war" continues the progression toward fewer restrictions.

"It's interesting because we tend to think the framers of the Constitution gave great safeguards for civil liberties - and in a sense they did - but the safeguards have really had their biggest life in the past 40 years," Sunstein said.

Sunstein and others point to a general distrust of government and the military that has afflicted the American public since the 1960s as a result of the Watergate scandal and the Vietnam War.

In the past, Americans put up with severe restrictions on civil liberties. During the Civil War, Americans tolerated Abraham Lincoln's suspension of the right of arrested citizens to appear in open court and hear the charges against them. After World War I, there was a wave of arrests and deportations of "radicals" spearheaded by A. Mitchell Palmer, Woodrow Wilson's attorney general, as Americans feared that a Bolshevik-style revolution was waiting in the wings.

And after the December 1941 Japanese attack on Pearl Harbor, the Justice Department, on orders from President Franklin D. Roosevelt, rounded up more than 100,000 Japanese-Americans and shipped them to internment camps.

At issue today are a number of measures implemented by Ashcroft or imposed at the attorney general's urging that, while not nearly as extreme, have triggered a fresh round of recriminations.

Some key elements in the debate:

The government secretly detained 1,200 Middle Easterners on alleged immigration violations, some for at least six months. None has been charged in the attacks, and all but 200 have been released.

The president, acting on Ashcroft's advice, announced last fall that those captured in Afghanistan might be tried by military tribunals, where the defendants' rights can be sharply limited and the trials can be held in secret. To date, no tribunals have been employed.

Ashcroft loosened domestic spying guidelines so that FBI agents can collect information from mosques, churches, the Internet and other places open to the public without evidence of criminal behavior. In the past, agents had to show entering an establishment or conducting public surveillance was part of an investigation into a crime.

Ashcroft led the fight for congressional passage of the USA Patriot Act, which allows federal investigators greater license to search homes and offices, track Internet use, review library records and monitor telephone conversations without having to show probable cause.

It also gives the CIA access to confidential information from grand juries and allows the monitoring of conversations between attorneys and clients in cases the Justice Department says involve national security.

Ashcroft's "tips" program drew loud disapproval after the Justice Department announced that it wanted workers such as postal carriers, repair crews and cable installers to voluntarily report to the FBI any "suspicious" activity they see while in people's homes. Many companies and the Postal Service said they would not take part.

Intense scrutiny

Today, Ashcroft's measures are facing intense scrutiny from the lower courts in cases brought against the government by a slew of civil liberties groups and others. Though weighing an appeal of the Cincinnati ruling, the government is appealing a second order to open immigration hearings, as well as an order to release the names of the 1,200 Middle Easterners.

One of the higher-profile issues also in the courts has centered on the department's handling of Louisiana-born Yasser Hamdi, an alleged Taliban fighter captured in Afghanistan.

The Justice Department is fighting to keep Hamdi classified as an "enemy combatant," a designation that means he can be held indefinitely, without access to the outside world, a hearing or an attorney. The case marks one of the few times since the Civil War that an American citizen has been formally detained by the government without charges or access to the courts.

Jose Padilla, a U.S. citizen from Chicago who authorities say plotted to explode a radioactive "dirty bomb," is also in military custody, without charges, access to a lawyer or contact with anyone other than military interrogators.

At the American Bar Association convention last month, Michael Chertoff, assistant attorney general in charge of the Justice Department's criminal division, defended the government's right to term anyone - citizen or not, here or abroad - an "enemy combatant" and hold him indefinitely without counsel.

'Model does not work'

"We cannot lose sight that in a war-fighting situation the president is acting as commander in chief and acting to prevent acts of violence against America," he said. "The judicial model does not work. Judges are not able to roam around in Afghanistan and get in the middle of the battlefield and decide whether a particular enemy soldier" should be afforded constitutional rights. If the military has the right to kill someone, he said, it implicitly has the right to detain the person.

He also said the department's decisions to implement measures, such as requesting that 5,000 Arab-American men submit to voluntary questioning and holding the Middle Easterners, were not made haphazardly.

That argument has not quieted anger among Arab-Americans.

"Once you start down this road, you betray the principle of the laws," said Jean AbiNader, managing director of the Arab American Institute. "What has happened to Muslims today can happen to any group of Americans in the future."

Ashcroft's tactics have been bolstered by what some officials call the "what if" reasoning.

The government has acknowledged in recent court briefs that it isn't claiming any of the 1,200 alleged immigration violators were involved in the attacks. But, officials contend in the briefs, what if those individuals have information about people who may be planning a new attack? What if a detainee was released and later killed Americans in a terrorist act?

Last week, the government brought charges against five men in Detroit and an American citizen in Seattle for conspiring to aid terrorists, scoping targets, amassing weapons and trying to recruit followers.

In an interview at the bar association meeting, Chertoff said the judiciary is responsible for punishing crime while the executive branch is responsible for preventing crime - such as a terrorist act.

"It's not an American citizenship issue, it's an issue of whether you are in fact bearing arms against the United States," he said.

2 cases not going well

The two cases involving the September attacks or the war in Afghanistan that the government has brought before civilian courts have not gone well and seem to have soured U.S. officials on the ability of the judicial system to handle terrorism-related cases.

John Walker Lindh, the American-born fighter who recently pleaded guilty to aiding the Taliban, mounted an extensive and time-consuming defense. His veteran legal team pressed for access to military detainees in Guantanamo Bay, Cuba, and to classified military information from Afghanistan. The team criticized the government's treatment of Lindh, releasing a vivid photograph of him belted to a bed naked and blindfolded.

Zacarias Moussaoui, the alleged intended 20th hijacker and a French citizen of Moroccan descent, is facing a criminal trial in January in which he is representing himself. Pretrial hearings have given him a platform to spew anti-American rhetoric while his motions and behavior in court have become increasingly bizarre and hostile.

Ashcroft seems to want to avoid a repeat performance, as the Justice Department openly argues its right in court to keep Hamdi and Padilla where they are - out of sight and out of the way.

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