I love those year-end roundups—ubiquitous annual lists of greatest films and albums and lip glosses and tractors. It's reassuring that all human information can be wrestled into bundles of 10. In that spirit, Slate proudly presents, the top 10 civil liberties nightmares of the year:
10. Attempt to Get Death Penalty for Zacarias Moussaoui
Long after it was clear the hapless Frenchman was neither the "20th hijacker" nor a key plotter in the attacks of 9/11, the government pressed to execute him as a "conspirator" in those attacks. Moussaoui's alleged participation? By failing to confess to what he may have known about the plot, which may have led the government to disrupt it, Moussaoui directly caused the deaths of thousands of people. This massive overreading of the federal conspiracy laws would be laughable were the stakes not so high. Thankfully, a jury rejected the notion that Moussaoui could be executed for the crime of merely wishing there had been a real connection between himself and 9/11.
9. Guantanamo Bay
It takes a licking but it keeps on ticking. After the Supreme Court struck down the military tribunals planned to try hundreds of detainees moldering on the base, and after the president agreed that it might be a good idea to close it down, the worst public relations fiasco since the Japanese internment camps lives on. Prisoners once deemed "among the most dangerous, best-trained, vicious killers on the face of the earth" are either quietly released (and usually set free) or still awaiting trial. The lucky 75 to be tried there will be cheered to hear that the Pentagon has just unveiled plans to build a $125 million legal complex for the hearings. The government has now officially put more thought into the design of Guantanamo's court bathrooms than the charges against its prisoners.
8. Slagging the Media
Whether the Bush administration is reclassifying previously declassified documents, sidestepping the FOIA, threatening journalists for leaks on dubious legal grounds, or, most recently, using its subpoena power to try to wring secret documents from the ACLU, the administration has continued its "secrets at any price" campaign. Is this a constitutional crisis? Probably not. Annoying as hell? Definitely.
7. Slagging the Courts
It starts with the president's complaints about "activist judges," and evolves to Congressional threats to appoint an inspector general to oversee federal judges. As public distrust of the bench is fueled, the stripping of courts' authority to hear whole classes of cases—most recently any habeas corpus claims from Guantanamo detainees—almost seems reasonable. Each tiny incursion into the independence of the judiciary seems justified. Until you realize that the courts are often the only places that will defend our shrinking civil liberties. This leads to ...
6. The State-Secrets Doctrine
The Bush administration's insane argument in court is that judges should dismiss entire lawsuits over many of the outrages detailed on this very list. Why? Because the outrageously illegal things are themselves matters of top-secret national security. The administration has raised this claim in relation to its adventures in secret wiretapping and its fun with extraordinary rendition. A government privilege once used to sidestep civil claims has mushroomed into sweeping immunity for the administration's sometimes criminal behavior.
5. Government Snooping
Take your pick. There's the NSA warrantless eavesdropping program wherein the president breezily authorized spying on the phone calls of innocent citizens, in violation of the Foreign Intelligence Surveillance Act. The FBI's TALON database shows the government has been spying on nonterrorist groups, including Quakers, People for the Ethical Treatment of Animals, and Veterans for Peace. The Patriot Act lives on. And that's just the stuff we know about.
4. Extraordinary Rendition
So, when does it start to become ordinary rendition? This government program has us FedEx-ing unindicted terror suspects abroad for interrogation/torture. Khalid El-Masri, a German citizen, was shipped off to Afghanistan for such treatment and then released without charges, based on some government confusion about his name. Heh heh. Canadian citizen Maher Arar claims he was tortured in Syria for a year, released without charges, and cleared by a Canadian commission. Attempts to vindicate the rights of such men? You'd need to circle back to the state-secrets doctrine, above.
3. Abuse of Jose Padilla
First, he was, according to then-Attorney General John Ashcroft, "exploring a plan to build and explode a radiological dispersion device, or 'dirty bomb,' in the United States." Then, he was planning to blow up apartments. Then he was just part of a vague terror conspiracy to commit jihad in Bosnia and Chechnya. Always, he was a U.S. citizen. After three and a half years, in which he was denied the most basic legal rights, it has now emerged that Padilla was either outright tortured or near-tortured. According to a recent motion, during Padilla's years of almost complete isolation, he was treated by the U.S. government to sensory and sleep deprivation, extreme cold, stress positions, threats of execution, and drugging with truth serum. Experts say he is too mentally damaged to stand trial. The Bush administration supported his motion for a mental competency assessment, in hopes that will help prevent his torture claims from ever coming to trial, or, as Yale Law School's inimitable Jack Balkin put it: "You can't believe Padilla when he says we tortured him because he's crazy from all the things we did to him."
2. The Military Commissions Act of 2006
This was the so-called compromise legislation that gave President Bush even more power than he initially had to detain and try so-called enemy combatants. He was generously handed the authority to define for himself the parameters of interrogation and torture and the responsibility to report upon it, since he'd been so good at that. What we allegedly did to Jose Padilla was once a dirty national secret. The MCA made it the law.
Whenever the courts push back against the administration's unsupportable constitutional ideas—ideas about "inherent powers" and a "unitary executive" or the silliness of the Geneva Conventions or the limitless sweep of presidential powers during wartime—the Bush response is to repeat the same chorus louder: Every detainee is the worst of the worst; every action taken is legal, necessary, and secret. No mistakes, no apologies. No nuance, no regrets. This legal and intellectual intractability can create the illusion that we are standing on the same constitutional ground we stood upon in 2001, even as that ground is sliding away under our feet.
What outrage did I forget? Send mail to Dahlia.Lithwick@hotmail.com. (E-mail may be quoted by name unless otherwise stipulated.)
Wishing you and yours a happy, and freer, New Year.
A version of this piece appears in the Washington Post Outlook section.