- The Washington Times - Sunday, July 6, 2003

One of the casualties of the Bush administration’s war on terrorism is the separation of powers, as more courts defer to the Justice Department’s rewriting of the bill of Rights. A particularly dangerous departure from basic due process is the June 18 D.C. Court of Appeals decision permitting the Bush administration to keep on concealing the names of the 765 non-citizens imprisoned after the September 11 attacks. That decision is being appealed.

Significantly, on June 2, Glenn A. Fine, the inspector-general of Ashcroft’s own Justice Department, had released a detailed account of the denial of fundamental due process during these secret arrests and imprisonments by the Justice Department. The “detainees” — to use the government’s euphemism — were considered guilty until proved innocent, and were held without bail for weeks, oftentimes months. According to the inspector general, some detainees were subjected “to extremely restrictive conditions of confinement.”

In a November 2001 speech, Mr. Ashcroft declared that it was “simply not true … that detainees are not able to be represented by an attorney.” The truth: Many of those behind bars were deliberately obstructed from reaching attorneys, as detailed in Steven Brill’s book “After” (Simon & Schuster, 2003).



The inspector general’s report notes that, at one of the prisons, official video cameras were set up to record activity and safeguard against the guards’ abusing prisoners (which, on occasion, included slamming them against the walls). But in June, Anthony Romero, executive director of the American Civil Liberties Union, pointed out on PBS’s “NewsHour with Jim Lehrer” that, “those videotapes were destroyed, contrary to a policy that had been put in place that was meant to keep those tapes indefinitely.”

Yet, Judge David B. Sentelle, writing for the 2 to 1 majority of the U.S. Circuit Court of Appeals for the District of Columbia, decided that — because of national security concerns — releasing the names of the imprisoned would enable terrorist groups “to map the course of the government’s investigation” into Al Qaeda’s plans for further lethal operations in this country.

In his dissent, Judge David S. Tatel (trying to uphold the rule of American law) said with admirable directness that his colleagues’ “uncritical deference to the government’s vague, poorly explained arguments … as well as the majority’s willingness to fill in the factual and logical gaps in the government’s case, eviscerates both the Freedom of Information Act (under which a lawsuit had tried to obtain the names) and the principle of openness in government.”

As the Sixth Circuit Court of Appeals had previously ruled against Mr. Ashcroft’s closing deportation hearings in total secrecy, “Democracy dies behind closed doors.”

The majority opinion in the Court of Appeals case, said Judge Tatel, overlooks “the public’s interest in knowing whether the government, in responding to the (terrorists’) attacks, is violating the constitutional rights of the hundreds of persons whom it has detained in connection with its terrorism investigation.”

Judge Tatel said the government, in its arguments, “refuses to identify the specific categories of information that would actually interfere with its investigation (by allowing the terrorists to ‘map’ its course). Instead, the government asks us simply to trust its judgment.”

In response to the inspector general’s findings on the holding conditions of several hundred prisoners, Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, emphasized that “the Department of Justice asked the American people to trust it to do justice. Its own inspector general’s report demonstrates that government in secret does not foster justice.

“The clear lesson,” Mr. Goldman added, “is that the government, in its understandable and laudable resolve to protect our security, cannot be relied on to protect our basic rights and liberties. Public scrutiny and the protections of our court system are necessary to ensure elemental fairness.”

However, the majority of the Court of Appeals, fully aware of the inspector general’s stinging report, nonetheless gave its imprimatur to the Justice Department’s subversion of elemental fairness — including the presumption of innocence — during what amounted to a dragnet roundup. And not one of those detainees has been charged with any terrorist activities.

While many of the detainees were eventually charged with minor immigration violations, little was done to secure us against actual terrorism. What the Justice Department — and now the majority of the U.S. Circuit Court of Appeals for the District of Columbia — accomplished was the detention and abuse of the Constitution.

Characteristically, Mr. Ashcroft said he had “no apologies” in response to his attorney general’s report. And the attorney general was delighted with the permission granted him by the courts to further revise the American system of justice — in secret.

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