- The Washington Times - Friday, June 6, 2003

The other day, the Justice Department cheered a report on its handling of people detained after the September 11, 2001, attacks, which it said proved “our actions are fully within the law and necessary to protect the American people.” But the American Civil Liberties Union brandished a report implicating the administration in “a major scandal” involving “widespread abuses.” In Washington, of course, dueling studies are nothing new. The odd thing is that this time, both sides were talking about the same report.

In the days after the worst terrorist episode in our history, federal law enforcement agencies confronted an extraordinary challenge. Terrified by the prospect that more al Qaeda cells were preparing to strike, they mobilized to find any potential terrorists and stop them.

The 19 hijackers were all males from Middle Eastern countries, and some were here illegally, so the Justice Department gave special attention to illegal immigrants. Attorney General John Ashcroft vowed to arrest and detain any foreigner who had violated immigration rules or other laws. More than 1,200 people were rounded up, and 762 of them were eventually tagged for possible terrorist ties — which meant they couldn’t be released until the FBI was satisfied they posed no danger.

The report in question was conducted by the Justice Department’s inspector general, an internal watchdog office. Like the administration’s civil libertarian critics, it finds grounds to fault the handling of the detainees. But unlike them, it also recognizes that given the conditions, exceptional measures were in order.

“The department was faced with monumental challenges, and department employees worked tirelessly and with enormous dedication over an extended period to meet these challenges,” says the report. “It is also important to note that nearly all of the 762 we examined violated immigration laws.”

To arrest and hold so many people for a prolonged time over minor violations was a departure from established practice — and prior to September 11, it would have been hard to defend. But after the attacks, the government would have been crazy to proceed with business as usual. The administration’s aggressive use of the law was not only permissible but necessary.

Unfortunately, the aggressive sometimes veered into the needlessly punitive. None of those detained was ever charged with terrorist activity, and many of the detainees, the report says, would never have been held if the FBI had been more careful.

It often took its time exonerating them. The average time from arrest to clearance was 80 days, and 18 were locked up for more than six months. Some had to endure harsh jail conditions, including being confined to a cell for 23 hours a day, effectively denied contact with family and lawyers, and, in some cases, physically abused.

So what should we take from this analysis? The first thing is that the administration’s policies imposed a real cost on many innocent people. Given the danger, it made sense to err on the side of caution — but that doesn’t mean errors weren’t made.

The second is that the administration acted with restraint as well as prudence. ACLU Executive Director Anthony Romero claims “the war on terror quickly became a war on immigrants.” But out of 8 million illegal immigrants estimated to be in this country, only 762 were detained for suspected terrorist connections. That’s not a war on immigrants.

The third is that much of what the government did was both necessary and evil. To assure the safety of 280 million Americans, a few hundred foreigners had to pay a high price. Since all of us arguably gained from their detention, shouldn’t all of us bear part of the cost? One remedy is to pay financial compensation to those held for more than a few days, making some amends for their ordeal. It would be a small thing for us, and a big deal for them.

In the aftermath of that horrible day, the government had an urgent duty to do all it could to prevent more atrocities. Yet few civil libertarians have been willing to acknowledge what has been recognized by Norman Siegel, former head of the New York Civil Liberties Union: “The security interests are real, they’re legitimate, and you have to balance freedom and security in a different way post-September 11.”

The administration wasn’t right in everything it did after September 11, 2001, and we ought to try to redress the harm that was done. But we should also keep in mind that, since then, no foreign terrorists have struck on American soil. For that, we shouldn’t thank just our lucky stars.

Steve Chapman is a nationally syndicated columnist.

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