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December 10, 2002A Slight Detour on the Road to a Police StateIt is rare that we get anything even resembling good news on the ongoing effects on American liberties of the undeclared and amorphous but still useful (to some) war on terror. And in fact this is not unalloyed good news. Still, it’s worth noting and issuing a modest cheer or two. Last week U.S. District Court Judge Michael B. Mukasey issued a decision in the Jose Padilla case that put at least a small dent in administration efforts to eliminate any semblance of accountability or checks and balances when it comes to handling people accused of terrorist links or sympathies. It could prove to be only a little speed bump in the ongoing effort to put in place, as the Washington Post put it, "a parallel legal system in which terrorism suspects ... may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system." But
a speed bump is better than a checkered flag in this instance. MAJOR
THREAT OR MINOR PLAYER? You
probably remember Jose Padilla, the alleged former Chicago gang
member also known as Abdullah al-Mujahir, who was arrested last
May as he was arriving on a plane at Chicago’s O’Hare airport. He
had apparently actually had contact with al-Qaida people overseas,
and he was accused of planning to detonate a "dirty" nuclear
bomb – not much explosion but a lot of radioactive fallout
and supposedly easier to put together than a conventional nuclear
weapon (do those words go together?). Subsequent
news stories have suggested strongly that Padilla-al-Mujahir, rather
than being a major player in an imminent plot, was something of
a pawn in a plan that had barely begun to germinate. Apparently
he had returned to the United States to begin scouting out possible
targets for a dirty bomb, and had little or no idea how to put one
together or detonate it. So while most of the media and probably
most Americans seemed less than upset that he had been detained,
the government almost certainly exaggerated the threat that he represented. The
trouble is, nobody can be sure of much of anything, either about
Mr. Padilla or the case against him. President Bush simply declared
him an "unlawful combatant" and the authorities whisked
him away to a military prison. He may or may not be undergoing intensive
questioning there so the gummint can figure out how serious the
plot was and who some of the other participants might be. But he
has been held incommunicado and little or no information has been
released about him. No charges have been filed. He is not allowed
to see or communicate with attorneys or family members. INCHING
TOWARD THE RULE OF LAW Judge
Mukasey ruled that this was taking things a little far, even in
a time of legitimate concern about and an undeclared "war"
on terrorism. He ruled that Padilla has the right to contest his
designation, and to consult with an attorney to begin some sort
of judicial proceeding in which the courts will decide whether the
designation as "unlawful combatant" is justified by the
evidence or not. That’s
an important step in the direction of something like a restoration
of the concept that the rule of law is applicable and important
even during a time of crisis. The administration had asserted that
simply by having the designation applied to him – officially by
the president, presumably acting with some sort of advice but in
effect unilaterally – the government had the right to detain him
indefinitely with no recourse, no possibility of appeal, no right
to see a lawyer, and no right even to know whether charges would
ever be preferred against him. That’s
a simply breathtaking assertion, but it seems to have bothered only
the occasional isolated civil libertarian here and there. It’s the
kind of power asserted by police states and totalitarian governments
over real and imagined political dissidents. But it’s the kind of
power that ought to be anathema in a free society. Fascinating.
The more the administration takes away the rights and liberties
of American citizens – Padilla is a citizen, by the way, not
a foreign national – the more President Bush insists that this
is really a war to protect our liberties, and anybody who questions
it must be an enemy of
liberty. AN
UNFORTUNATE PROVISO Even
as he was ruling that Padilla was not entirely rights-free, however,
Judge Mukasey signaled that it is still going to be difficult for
him to get much in the way of justice even if the doors to the courtrooms
are opened. He also ruled that the president does, indeed, have
"the power to detain unlawful combatants, and it matters not
that Padilla is a United States citizen captured on United States
soil." Thus
the judge made sure to send the message that he and other jurists
are inclined to be extremely deferential to the president and to
the assertion of power by the executive branch during a time of
perceived crisis. So even as the courts waffled on habeas corpus
in the Civil War and on the constitutionality of a Selective Slavery
system during World War II, they are likely to waffle on the generally
unjustified blanket use of the term "unlawful combatant"
to cover all kinds of potential tyranny during the war on terror. UNDERMINING
DIVISION OF POWER The
American founders created a system with three branches of government,
in part, with the hope that each would serve as a check on the proclivity
of the other branches to grab undue power. The hope was that self-interest
and jealousy at attempts by one branch to poach on the territory
of another branch could be turned to the service of the liberties
of the people. The
system hasn’t worked out as well as the founders undoubtedly hoped.
People in the three branches quickly came to understand that when
any branch of government grows in power the government as a whole
grows and opportunities for other branches are likely to present
themselves. So the three branches have not been anywhere nearly
as jealous of other branches as one might have liked. Still,
the tradition and the idea of checks and balances retains a certain
influence and even a bit of real power. Without it we might not
have had a court even willing to consider this particular usurpation. Unfortunately,
the courts tend to be most deferential when they should be most
suspicious. It is precisely during times of war, conflict or perceived
crisis that government agencies – especially in the executive
branch – are most prone to the temptation to abuse their power.
So those are precisely the times when the courts and the legislature
should exercise the strictest of scrutiny over executive branch
decisions and power grabs. This
is even more important when, as in the present instance, government
leaders have openly and proudly proclaimed that they don’t know
when the war on terror will be won, but that it could be a matter
of years or decades before the threat subsides (thanks to their
heroic exertions, of course). When the threat is so amorphous that
nobody has an idea when it will be over or what constitutes victory,
the people and the other branches of government should ratchet up
their levels of suspicion. But
the shared perception of crisis usually trumps this imperative.
The result is that government grows and seizes power during times
of crisis – power that is never returned to its original more modest
levels, even if there is a certain retrenchment when the crisis
is resolved. That’s one reason government leaders love crises and
will manufacture them if outside forces don’t create them often
enough. A
SMALL VICTORY Still,
it is worth a moment or two of gratitude for this small victory
for traditional American liberties and the concept of due process.
Judge Mukasey did assert that the judicial system has some power
to intervene when the executive branch seizes people by virtue of
a status proclaimed by the president and simply tosses them into
the military gulag. The
judge did not take up the question of whether the decision to declare
Padilla an "unlawful combatant" was justified or not.
Presumably he or some other judge will take it up at a later date,
in something resembling a normal judicial process, after a defense
attorney has at least had the opportunity to collect information
and present a case. Even if the courts turn out to be more deferential
than you or I might be to executive proclamations, that’s something
– unless the judicial procedure really is just a figleaf that gives
the blanket condemnation of suspected terrorists to indefinite detention
an aura of legitimacy. SLOWING
THE LOCOMOTIVE? However
the courts handle the case of Jose Padilla, a certain amount of
attention to this decision may stiffen the backbones of other judges.
That could at least slow down the rush to power now occurring in
the wake of the terrorist attacks. We
now see our government, partially in response to new powers blithely
granted by Congress in the USA Patriot Act and other legislation
and partially simply by acting, carrying on in ways that would normally
be associated with a particularly nasty police state. The government
has detained suspects, including U.S. citizens, without specific
charges or judicial oversight. It has maintained unwonted and unjustified
secrecy about whom it has detained and under what circumstances. The
government now has the power in some circumstances to search a person’s
home without ever bothering to tell him or her the search has taken
place – and then to detain that person indefinitely if it finds
something potentially incriminating. It has circumvented both the
Geneva Convention (which requires prisoners to be treated as POWs
required to give only name, rank and serial number until their status
has been determined by a tribunal) and U.S. law in the way it has
treated the prisoners at Guantanamo Bay. This
administration has not only sought legislation to enhance its power,
it has used the terms "unlawful combatant" and "enemy
combatant" – relative newcomers to the political parlance
that had seldom been used in times past – loosely to enhance
its power further. It is in the process of tearing down the wall
between surveillance to acquire intelligence about foreign intentions
– which requires a minimum of justification – and surveillance
to acquire evidence of a crime, which has traditionally required
a higher standard. You can be sure that the result over the long
haul
will be lower standards to justify surveillance in criminal and
domestic cases. All
this does not make the United States a police state – not yet. But
the trends are unquestionably in that direction, and for the most
part conservatives who generally make noises about the growth of
government power are leading the cheers. Pity. – Alan Bock
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