We've heard two dominant reactions to the Bush's administration's legal steps to fight terrorism at home. The first is the hue and cry of civil libertarians who declare such measures inimical to our constitutional freedoms and privacy. The second is the equally automatic tendency of many conservatives to remind us that civil liberties necessarily suffer in wartime and to justify whatever Attorney General John Ashcroft wants. Perhaps the only interesting thing about the argument thus far has been its mild strange-bedfellow aspect. A band of right-wing libertarians objects to some proposals more strongly than do liberal Democrats in Congress and the ACLU.
This rather sterile debate, largely familiar from before Sept. 11, provides little guidance to those prepared to re-examine the balance our society strikes between freedom and security but disinclined to tip the scale more than we need to. If American history teaches us that freedom often suffers in wartime, it also teaches that it often suffers gratuitously. Military censorship during World War II was sensible and justified; imprisoning American citizens of Japanese descent was neither. The former action was reasonably tailored to deal with a genuine security risk. The latter was a hysterical and xenophobic overreaction. Which category do the various actions of the Bush administration fall into? I see no alternative to evaluating the six biggest, one at a time.
1. The continuing detention of more than 600 foreign nationals on immigration charges.
Official Justification: John Ashcroft, the attorney general, says that the detainees, who previously numbered more than 1,000, include al-Qaida members and that arrests have probably stopped additional terrorist attacks. The attorney general has also attempted to defend his decision to withhold information about the suspects. On Nov. 26, Ashcroft said that to give out their names would violate their privacy and create a "blacklist." On Nov. 27, he announced federal charges against 104 detainees. Releasing the names of the 548 others, he asserted, would aid Osama Bin Laden.
Discussion: Foreigners who violate the terms of their visas can be legally held without a bail hearing or even formal charges because they're noncitizens with minimal rights under the Constitution. But Ashcroft's excuses for not revealing the names of the detainees are transparent. The giveaway is his sudden solicitousness for a privacy right that doesn't even exist as a legal matter and his subsequent move to the stronger "aiding Bin Laden" justification. If he's so concerned about the privacy of detainees, why not at least ask them if they want their names withheld and release those who don't mind? As for tipping off al-Qaida, the detainees do have a right to counsel, and their lawyers can contact friends or family members or announce through the press that they're being held.
Why is release of the names such a big issue? Because without more information about the suspects, it's impossible to know whether the detentions are reasonable or not. Press reports about of some of the detainees are cause for concern. For example, the New York Times has reported that as many 11 harmless-sounding Israelis were held for several weeks. Given the circumstances, Justice can be forgiven for erring on the side of caution in releasing people it believes to be dangerous. But absent more disclosure, there's no way for Congress, the press, or the public to assess what Ashcroft is doing.
Verdict: Mixed. When it comes to detaining foreigners who are suspected terrorists and terrorist-helpers, we have no choice but to trust the Justice Department and the INS to some extent. But Ashcroft's superfluous secrecy requires us to take more on faith than we should have to.
2. The U.S.A. Patriot Act, signed by President Bush on Oct. 26, which grants the government broader powers to wiretap and detain noncitizen suspects, to conduct secret searches in which a target is not notified, and to share intelligence among agencies.
Justification: As Bush said at the signing ceremony, the bill "takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike."
Discussion: The bill has many components, all of which give the executive branch more power. On electronic surveillance, for example, it prescribes treatment for Internet wiretaps parallel to existing law on telephone communications. Another provision gives the CIA greater latitude to gather intelligence within the United States. How you feel about this stuff depends on whether you lose sleep over law enforcement authorities having too much power or not enough. Though the specifics are too many and too specific to go into here, I think advocates of the bill make a strong case that it makes life easier for law enforcement in prudent, measured ways. The final legislation was developed through bipartisan compromise, which added, among other things, a sunset provision that will cause provisions to expire in four years unless Congress acts to renew them.
Verdict: Thumbs up, despite the newspeak title. Even some doctrinaire civil libertarians found it hard to take issue with this bill in its final form. The sunset provision goes a long way toward satisfying concerns about potential abuse.
3. An Oct. 31 executive order allowing federal authorities to monitor communications between federal prisoners and their lawyers without first obtaining a judicial warrant.
Justification: A Justice Department spokesperson says this power is necessary to prevent terrorist attacks planned under cover of lawyer-client privilege. She says it intends to use information it obtains in this way only for prevention, not prosecution.
Discussion: The familiar analogy here is to mafia lawyers who are in effect part of the family. In cases where the government suspects that lawyers are abetting a criminal conspiracy, it can apply to a judge for a warrant to listen in on their conversations with clients. Why can't the Justice Department follow the same procedure in terrorism cases? There may be a reason, but Ashcroft hasn't given one.
Verdict: I agree with my colleague Dahlia Lithwick: To infringe on such a basic procedural right as the right to counsel, the government needs a damn good reason. So far, it hasn't presented any real reason beyond saying it needs this new power.
4. Bush’s order authorizing the use of military tribunals to try suspected terrorists.
Justification: The Bush administration points to a World War II precedent for prosecuting foreign nationals engaged in war with the United States in this way. To try military combatants in civilian courts, officials argue, would run the risk of provoking additional terrorist attacks and of disclosing classified intelligence information at trial.
Discussion: What's Ashcroft's basis for believing that civilian trials of terrorists inevitably create unsupportable security and confidentiality problems? The recent embassy bombing trial in New York seems to have successfully avoided both pitfalls. In terms of the risk of additional attacks, the notion that al-Qaida members are waiting for some additional provocation before striking again appears increasingly faulty. And why is al-Qaida likely to strike again to protest a civilian terrorist trial but not a military one—unless the military trial is held in such secrecy that no one even knows one is happening? In terms of protecting classified information in court, prosecutors already have an effective weapon in CIPA, the Classified Information Procedures Act. This law allows the government to disclose information to a judge without sharing it with the other side. If this law didn't work, Aldrich Ames and Robert Hanssen would have blackmailed the government into letting them walk instead of pleading guilty to espionage.
At the same time, I'm not certain that criminal trials are a sensible option for terrorists we may take as prisoners in Afghanistan. This is a tough problem we might not ever face, but imagine if we capture several thousand al-Qaida fighters alive, including Bin Laden and other top leaders. Do we really want to fly these terrorists to Cleveland for a criminal prosecution that could take years? Civil libertarian William Safire deals with the problem by saying we should kill Bin Laden even if he tries to surrender to avoid having to give him a civilian trial. I'd rather we take Bin Laden dead, too, but if he and other al-Qaida get captured alive, a quick military trail would be our best legal and practical option.
Why civilian trials for suicide bombers who make it through customs and military tribunals for those we pick up outside Kandahar? One reason for the distinction is that military trials create obvious political and public relations headaches. Some of our European allies have already said they won't deport terrorist suspects who face military justice to the United States. Another reason is the practicality of deploying various systems of justice. In Afghanistan, where there is no functioning government or system of justice, any suspected terrorist could count himself lucky to be tried by an American military tribunal. In the territorial United States, we can do better.
Verdict: No to military tribunals for prisoners in custody here; yes to courts martial for war criminals captured in Afghanistan. In any case, Bush should seek congressional approval for his decision, if only to lend legitimacy to any military proceedings.
5. Questioning 5,000 students from Islamic countries admitted to the United States since Jan. 1, 2000.
Justification: These people might know something about past or future terrorist attacks. Ashcroft says that it's their responsibility to assist the FBI's investigation.
Discussion: Let's not pretend that this is anything other than racial profiling. But it's a case where, as Michael Kinsley has argued with regard to airport searches, discrimination of a kind we ordinarily detest is warranted. We're looking for Islamic terrorists—do we have to interview Catholic nuns as well just to be fair? In this case, the imposition is not only justifiable but also extremely minor. On the other hand, I'm not sure the sweep proposed by the Justice Department is a wise use of investigative resources. If we're looking for al-Qaida "sleepers," an arbitrary cut-off date covering only those who entered the country in the last 23 months seems indefensible. And based on my experience with FBI background checks, I can't say I have much confidence in the ability of low-level agents to find out anything useful from friendly interviews.
Verdict: Acceptable but possibly pointless.
6. Bush's executive order giving the government power to detain a foreigner even after an immigration judge has ordered his release.
Justification: "To prevent the release of aliens who may pose a threat to national security." The Justice Department says the INS may be too busy to present all its evidence against a prisoner in court or appeal the release of one in a timely fashion.
Discussion: Immigration judges are executive branch employees who work for the INS but have some degree of autonomy. This order—promulgated secretly a month ago—eliminates any meaningful judicial review for foreigners in custody. If the INS doesn't like an immigration judge's ruling that someone should be let out of jail, it can simply ignore it. So what's the point of having a judge rule at all?
Verdict: Foreigners may not have the same right to judicial review as citizens, but let's not make the limited rights they do enjoy into a complete sham. Like the breach of lawyer-client confidentiality, this one seems a significant infringement offered with no outside consultation and minimal genuine rationale. If INS lawyers are too busy to make their cases in court, the INS should hire more lawyers.
In sum, the Bush-Ashcroft approach to the problem of rights in wartime leaves much to be desired. Only in the one case where Congress got involved has there been any real sense of striking a balance between liberty and privacy on the one hand and public safety on the other. Where the administration acts unilaterally, the result often seems skewed in favor of security, with constitutional rights as an annoyed afterthought. On the bright side, Bush, unlike such liberal heroes as Lincoln, Wilson, and FDR, has yet to grossly infringe the rights of Americans. For that he deserves a small bit of—provisional—credit.