[iwar] [fc:After.Sept..11,.a.Legal.Battle.Over.Limits.of.Civil.Liberty]

From: Fred Cohen (fc@all.net)
Date: 2002-08-06 20:56:45
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From: Fred Cohen <fc@all.net>
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Date: Tue, 6 Aug 2002 20:56:45 -0700 (PDT)
Subject: [iwar] [fc:After.Sept..11,.a.Legal.Battle.Over.Limits.of.Civil.Liberty]
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After Sept. 11, a Legal Battle Over Limits of Civil Liberty
By The New York Times

Sunday, 4 August, 2002

This article was reported and written by Adam Liptak, Neil A. Lewis and
Benjamin Weiser.

In the fearful aftermath of Sept. 11, Attorney General John Ashcroft vowed
to use the full might of the federal government and "every available
statute" to hunt down and punish "the terrorists among us."

The roundup that followed the attacks, conducted with wartime urgency and
uncommon secrecy, led to the detentions of more than 1,200 people suspected
of violating immigration laws, being material witnesses to terrorism or
fighting for the enemy.

The government's effort has produced few if any law enforcement coups. Most
of the detainees have since been released or deported, with fewer than 200
still being held.

But it has provoked a sprawling legal battle, now being waged in federal
courthouses around the country, that experts say has begun to redefine the
delicate balance between individual liberties and national security.

The main combatants are the attorney general and federal prosecutors on one
side and a network of public defenders, immigration and criminal defense
lawyers, civil libertarians and some constitutional scholars on the other,
with federal judges in between.

The government's record has so far been decidedly mixed. As it has pushed
civil liberties protections to their limits, the courts, particularly at the
trial level, have pushed back, stopping well short of endorsing Mr.
Ashcroft's tactics or the rationales he has offered to justify them. Federal
judges have, however, allowed the government to hold two American citizens
without charges in military brigs, indefinitely, incommunicado and without a
road map for how they might even challenge their detentions.

In the nation's history, the greatest battles over the reach of government
power have occurred against the backdrop of wartime. Some scholars say the
current restrictions on civil liberties are relatively minor by historical
standards and in light of the risks the nation faces.

The current struggle centers on three sets of issues. People held simply for
immigration violations have objected to new rules requiring that their cases
be heard in secret, and they have leveraged those challenges into an attack
on what they call unconstitutional preventive detentions.

People brought in and jailed as material witnesses, those thought to have
information about terrorist plots, have argued that they should not be held
to give testimony in grand jury investigations.

Finally, Yasser Esam Hamdi and Jose Padilla, the two Americans labeled
"enemy combatants" for what the government contends is more direct
involvement with terrorist groups, are seeking rights once thought to be
fundamental to American citizens, like a lawyer's representation and a
chance to challenge their detentions before a civilian judge.

So far, federal judges in Newark and Detroit have ordered secret deportation
proceedings opened to public scrutiny, and on Friday a federal district
judge in Washington ordered that the identities of most of the detainees be
made public under the Freedom of Information Act.

"Secret arrests," Judge Gladys Kessler wrote in the decision on Friday, "are
a concept odious to a democratic society."

A senior Justice Department official said the detentions had been lawful and
effective. He said it was hard to "prove a negative" and cite specific
terrorist acts that had been disrupted. But he said that department
officials believed that the detentions had "incapacitated and disrupted some
ongoing terrorist plans."

Two federal judges in New York have differed sharply on whether the
government may jail material witnesses while they wait to testify in grand
jury investigations. In Virginia, a federal judge ordered the government to
allow Mr. Hamdi to consult a lawyer.

"I look at the federal district court judges and just cheer them on, because
they are doing exactly what an independent judiciary should be doing," said
Jane E. Kirtley, a professor at the University of Minnesota and former
executive director for the Reporters Committee for Freedom of the Press.
"It's not hostile or adversarial; it's simply skeptical."

These lower-court decisions have for the most part not yet been tested on
appeal, and there is reason to think that appeals courts and the Supreme
Court will prove more sympathetic to the government's tactics and arguments.

The federal appeals court in Richmond, Va., for instance, reversed the
decision to allow Mr. Hamdi to talk to a lawyer and ordered the lower court
judge to consider additional evidence and arguments.

But even the appeals court seemed torn, and it rejected the government's
sweeping argument that the courts have no role in reviewing the government's
designation of an American citizen as an enemy combatant.

The detention issues also carry an emotional punch. Many of the Arabs and
Muslims caught in the government dragnet were cabdrivers, construction
workers or other types of laborers, and some spent up to seven months in
jail before being cleared of terrorism ties and deported or released.

Last month, at a conference held by a federal appeals court, Warren
Christopher, the secretary of state in the Clinton administration, snapped
at Viet Dinh, an assistant attorney general under President Bush, saying
that the administration's refusal to identify the people it had detained
reminded him of the "disappeareds" in Argentina.

"I'll never forget going to Argentina and seeing the mothers marching in the
streets asking for the names of those being held by the government," Mr.
Christopher said. "We must be very careful in this country about taking
people into custody without revealing their names."

Mr. Dinh, who came to the United States as a refugee from Vietnam, recalled
his family's anguish when his father was taken away in 1975 for
"re-education." In contrast, he said, those detained by the United States
were not being secretly held but were allowed to go to the press and seek
lawyers.

"These are not incognito detentions," he said. "The only thing we will not
do is provide a road map for the investigations."

According to the Justice Department, 752 of the more than 1,200 people
detained since Sept. 11 were held on immigration charges. Officials said
recently that 81 remained in detention. Court papers indicate there were
about two dozen material witnesses, while most of the other detainees were
held on various state and federal criminal charges.

President Bush also has announced plans to try suspected foreign terrorists
before military tribunals, though no such charges have been brought yet.

Last month, William G. Young, the federal judge presiding in Boston over the
criminal case against Richard C. Reid, a British citizen accused of trying
to detonate a bomb in his shoe on a trans-Atlantic flight, noted that the
very establishment of those tribunals "has the effect of diminishing the
American jury, once the central feature of American justice."

Judge Young, who was appointed by President Ronald Reagan, added: "This is
the most profound shift in our legal institutions in my lifetime and -- most
remarkable of all -- it has taken place without engaging any broad public
interest whatsoever."

Jack Goldsmith and Cass R. Sunstein, professors at the University of Chicago
Law School, have written that the Bush administration's policies are a
minimal challenge to civil liberties especially compared with changes during
the times of Abraham Lincoln and Franklin D. Roosevelt. What has changed,
they say, is a greater sensitivity to civil liberties and a vast increase in
mistrust of government.

The Secrecy

U.S. Says Hearings
Are Not Trials

Ten days after last September's attacks, Michael J. Creppy, the nation's
chief immigration judge, quietly issued sweeping instructions to hundreds of
judges for what would turn out to be more than 600 "special interest"
immigration cases.

"Each of these cases is to be heard separately from all other cases on the
docket," Judge Creppy wrote. "The courtroom must be closed for these cases
-- no visitors, no family, and no press."

"This restriction," he continued, "includes confirming or denying whether
such a case is on the docket."

The government has never formally explained how it decided which visa
violators would be singled out for this extraordinary process, and it has
insisted that the designations could not be reviewed by the courts.

But as it turns out, most of these cases involved Arab and Muslim men who
were detained in fairly haphazard ways, for example at traffic stops or
through tips from suspicious neighbors. Law enforcement officials have
acknowledged that only a few of these detainees had any significant
information about possible terrorists.

As the ruling on Friday in Washington suggests, a series of legal challenges
to this secrecy has resulted in striking legal setbacks for the
administration. Several courts have ordered the proceedings opened and have
voiced considerable skepticism about the government's justifications for its
detention policies generally.

Lee Gelernt, a lawyer at the American Civil Liberties Union, said the
secrecy of the proceedings exacerbated the hardships faced by people who
disappeared from sight on violations that in the past would not have
resulted in incarceration.

"Preventive detention," he said, "is such a radical departure from
constitutional traditions that we certainly shouldn't be undertaking it
solely on the Justice Department's say-so."

Malek Zeidan's detention would have been unexceptional had it not given rise
to one of the legal challenges that threatens to end the secret proceedings.

Mr. Zeidan, 42, is a Syrian citizen who overstayed his visa 14 years ago and
has lived in Paterson, N.J., for more than a decade. Over the years, he has
delivered pizzas, driven an ice cream truck and pumped gas. When the
Immigration and Naturalization Service came around last Jan. 31 to ask him
about a former roommate suspected of marriage fraud, Mr. Zeidan was working
at Dunkin' Donuts, and his expired visa soon cost him 40 days in custody.

When a hearing was finally held three weeks after his detention, the judge
closed the courtroom, excluding Mr. Zeidan's cousin and reporters.

The closing of proceedings prompted lawsuits in federal court, from both Mr.
Zeidan and two New Jersey newspapers. In March, the government dropped the
"special interest" designation, Mr. Zeiden was released after posting a
bond, and the case he filed was dismissed. The immigration charges against
him will be considered in the fall.

"You're one of the lucky ones," his lawyer, Regis Fernandez, recalls telling
Mr. Zeidan, given that other visa violators were held as long as six or
seven months before being deported or released.

Mr. Zeidan's lawyers believe that their legal strategy, which focused on
openness, forced the government's hand.

"The government was somehow linking secrecy to guilt," Mr. Fernandez said.
"We figured if the public had access to these hearings they would see that
nothing went on except multiple adjournments and delay."

Through a spokeswoman, Judge Creppy declined to comment. An I.N.S. official,
who spoke on the condition that he not be named, said the agency had acted
properly in Mr. Zeidan's case and in similar cases.

He said the immigration service had always detained people without bond who
were linked to criminal investigations. He added that the agency had no
choice now but to detain a visa violator until the Federal Bureau of
Investigation was sure the person was not involved in terrorism.

"Consider the flip side -- that you held him for two days and then deported
him, and 30 days later you found out he was a terrorist," the official said.

The newspapers' lawsuit has continued. It has already once reached the
Supreme Court, and the government's papers contain one of the fullest
accounts of its position on secrecy and executive power.

Its main argument is that the courts have no role because immigration
hearings are not really trials, but are merely administrative hearings that
can be closed at will.

Bennet Zurofsky, who also represented Mr. Zeidan, said he was flabbergasted
by this suggestion.

"A trial is a trial," he said. "A person's liberty is at stake. A person is
being held in jail. A person is being told where to live."

But in a sworn statement submitted in several court cases, Dale L. Watson,
the executive assistant director for counterterrorism and
counterintelligence at the F.B.I., outlined the reasoning behind the
government demand for total secrecy.

"Bits and pieces of information that may appear innocuous in isolation can
be fit into a bigger picture by terrorist groups," he said.

This rationale for withholding information, sometimes called the mosaic
theory, is controversial.

"It's impossible to refute," Professor Kirtley said, "because who can say
with certainty that it's not true?"

In May, John W. Bissell, the chief judge of the federal district court in
Newark, appointed by President Reagan, ruled for the newspapers and ordered
all deportation hearings nationwide to be opened, unless the government is
able to show a need for a closed hearing on a case-by-case basis. His ruling
followed a similar one in Detroit the month before, though that case
involved only a single detainee.

The government appealed to the Court of Appeals for the Third Circuit, in
Philadelphia, and asked it to block Judge Bissell's order until the appeal
was decided. The court, which will hear arguments in September, declined to
do that. A number of news organizations, including The New York Times, filed
a brief as a friend of the court in support of the newspapers.

The government then asked the United States Supreme Court to stay Judge
Bissell's order. The court, in a relatively unusual move given that the case
was not before it for any other purpose, blocked Judge Bissell's order,
suggesting that it might have more sympathy for the government's arguments.

The Witnesses

Rights Violated,
Lawyers Contend

Late on Sept. 12, federal agents pulled two nervous Indian men, Mohammed
Jaweed Azmath and Syed Gul Mohammed Shah, off an Amtrak train near Fort
Worth. They were carrying box cutters, black hair dye and about $5,000 in
cash and had also shaved their body hair.

The agents' suspicions were obvious. The hijackers had used box cutters and
knives to take control of the aircraft and had received letters instructing
them to "shave excess hair from the body." An F.B.I. affidavit dated Sept.
15 said there was probable cause to believe that both of the Indian men were
involved in, or "were associated" with, those responsible for the Sept. 11
attacks.

But even though government officials told reporters that the men had been
detained as material witnesses, their lawyers now say that they were held
last fall only on immigration violations.

The distinction is important because a material witness warrant brings the
automatic appointment of a government-paid lawyer, while the government does
not have to supply a visa violator with counsel.

As a result, the authorities were able to question each of the men
repeatedly about terrorism without a lawyer present, their current lawyers
say.

Like some of the people who were picked up as material witnesses, the Indian
men were held in isolation in jails in New York for extended periods. It was
91 days before Mr. Azmath received a lawyer and 57 days before Mr. Shah did,
their lawyers say.

"It's wrong to keep a man in jail for 57 days and never bring him before a
magistrate to advise him of his rights," Mr. Shah's lawyer, Lawrence K.
Feitell, said in an interview. "It's wrong not to provide him with an
attorney at the threshold. It's wrong to depict this as an I.N.S.
investigation, when in truth and in fact, it's the main inquiry into the
World Trade Center debacle."

Anthony L. Ricco, the lawyer for Mr. Azmath, said his client was
interrogated "often times for several hours a day, with multiple
interviewers, getting rapid-fire questions from three or four different
people."

Eventually, the F.B.I. and the prosecutors cleared the men of any
involvement in terrorism, and both pleaded guilty in June in a credit-card
fraud scheme and are awaiting sentencing.

Federal prosecutors said in court papers that both men consented to
questioning. Each "was read and waived his Miranda rights before each
interview," prosecutors wrote, adding that each man confessed to the credit
card offenses.

The United States attorney in Manhattan, James B. Comey, would not comment
on the specific cases, but said generally of the government's tactics: "I
don't see any violation of any rule, regulation, or law.

"I can understand defense lawyers not being happy," he said. "But I know our
position after 9/11 was to use every available tool, to stay within the
rules but play the whole field and recognize the boundaries, but cover the
whole field.

"We need to do whatever we can that's legal to investigate and disrupt," he
added.

Today, it is believed that only a handful of the two dozen material
witnesses, perhaps as few as two, are still being detained.

But the process of detaining the witnesses has stirred intense criticism.

Last April, Judge Shira A. Scheindlin of Federal District Court in Manhattan
ruled that the use of the law "to detain people who are presumed innocent
under our Constitution in order to prevent potential crimes is an
illegitimate use of the statute."

Judge Scheindlin said the material witness law applied when witnesses were
held to give testimony at trials, not for grand jury investigations. "Since
1789," Judge Scheindlin said, "no Congress has granted the government the
authority to imprison an innocent person in order to guarantee that he will
testify before a grand jury conducting a criminal investigation."

Then last month, Chief Judge Michael B. Mukasey, also of Federal District
Court in Manhattan, upheld the government's use of the material witness
statute in grand jury investigations, criticizing Judge Scheindlin's
reasoning.

Judge Mukasey, citing the assertion in 1807 by Chief Justice John Marshall
that "the public has a right to every man's evidence," held that detentions
of material witnesses during investigations are proper.

The War Captives

No Lawyers Allowed
Under U.S. Label

Yasser Esam Hamdi, a Saudi national who was captured in Afghanistan, is
probably an American citizen by virtue of having been born in Louisiana. His
case represents the core issue of what kind of role the nation's courts
should have, if any, in reviewing the government's imprisonment of someone
charged with something akin to a war crime.

Prosecutors will be back in Federal District Court in Norfolk, Va., next
Thursday to confront one of the federal judges who has shown resistance to
the government's approach that once someone is declared an "enemy combatant"
by the president, all judicial review ceases.

Judge Robert G. Doumar, an appointee of President Reagan, has twice ruled
that Mr. Hamdi is entitled to a lawyer and ordered the government to allow
Frank Dunham, the federal public defender, to be allowed to visit him
without government officials or listening devices. Judge Doumar said that
"fair play and fundamental justice" require it. He said the government
"could not cite one case where a prisoner of any variety within the
jurisdiction of a United States District Court, who was held incommunicado
and indefinitely."

But the three-judge panel of the appeals court stayed Judge Doumar's order,
saying he had not fully considered the government's needs to keep Mr. Hamdi
incommunicado and, more important, the executive branch's primacy in areas
of foreign and military affairs.

"The authority to capture those who take up arms against America belongs to
the commander in chief," Chief Judge J. Harvie Wilkinson 3rd wrote for the
appeals panel.

But even Judge Wilkinson seemed to evince some surprise at the breadth of
what the government was asserting when he asked the Justice Department's
lawyer, "You are saying that the judiciary has no right to inquire at all
into someone's stature as an enemy combatant?"

The government has relented slightly, agreeing to provide the court with a
sealed declaration of the criteria by which they have judged Mr. Hamdi to be
an enemy combatant. But the government has argued that judges cannot argue
with the standards.

Judge Doumar has indicated that he will question the government closely on
those standards.

The case of Jose Padilla, which has not progressed as far as that of Mr.
Hamdi, may present an even greater challenge to normal judicial procedures.

Mr. Padilla, also known as Abdullah al-Muhajir, is, like Mr. Hamdi, an
American citizen, imprisoned in a naval brig after having been declared an
enemy combatant. But unlike Mr. Hamdi, Mr. Padilla was not arrested on the
battlefield by the military but on United States soil by civil law
enforcement authorities, on May 8 in Chicago.

After his detention as a material witness based on suspicions that he was
seeking to obtain material and information to build a radioactive bomb, he
was transferred to military custody.

"This is the model we all fear or should fear," said Mr. Dunham, the public
defender. "The executive branch can arrest an American citizen here and then
declare him an enemy combatant and put him outside the reach of the courts.
They can keep him indefinitely without charging him or giving him access to
a lawyer or presenting any evidence." 

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