Standing up for Bush's tough laws

Scholars defend the expansive new law enforcement powers -- and say military tribunals are justified.

Published December 6, 2001 8:37PM (EST)

Attorney General John Ashcroft is expected to face tough questioning on Capitol Hill Thursday, capping a week of Senate Judiciary hearings about the administration's expansive new law enforcement powers. The USA Patriot Act, passed by Congress in October, gives law enforcement agencies greater freedom to detain suspects without charging them and removes some limits on surveillance. A later Bush executive order gives him the power to try suspected foreign terrorists in military tribunals, which have lower standards of proof than civilian trials and whose proceedings are sealed.

Not surprisingly, the new laws have been attacked by civil-liberties groups, as well as by some congressmen and legal scholars. On Tuesday, Sen. Russ Feingold, D-Wis., presided over the Senate Judiciary Committee's hearing on "DOJ Oversight: Preserving our Freedoms While Defending Against Terrorism," where most of the witnesses, including ACLU president Nadine Strossen, were critical of the administration's new powers.

"While the administration and the public are understandably focused on waging war against terrorism, we ask Congress to ensure that the war on terrorism does not become a war on democracy," Strossen said.

On Wednesday, a number of civil-liberties, civil-rights and human-rights groups, including the ACLU and the Arab-American Anti-Discrimination Committee, filed a lawsuit asking the Justice Department to release the names of those arrested and detained in connection with the Sept. 11 terror attacks.

But some legal scholars argue that, taken as a whole, Bush's anti-terrorism proposals are justified -- and relatively tame -- compared to wartime actions of past presidents.

"Nothing we are doing remotely compares to the Japanese internment," says Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, a conservative law-enforcement think tank. "The expansion of surveillance authority was relatively modest. They mostly took existing laws and expanded the boundary a relatively short distance."

The government has actually been particularly cautious, says John Norton Moore, law professor at the University of Virginia and a former official in the Nixon, Ford and Reagan administrations. "We've done nothing that interferes with people's First Amendment freedoms. We've done nothing to limit discussion. And if you look at the USA Patriot Act, it's adjusting law enforcement issues at the margins."

Profiling can also be defended when seen in context, some scholars argue, saying that profiling based on national origin isn't the same as racial profiling.

"The problem with profiling is that it's become a loaded word that people use to describe different things," says Scheidegger. "When you talk about stopping people based on race, that's wrong. But there's nothing wrong with considering someone's national origin. Terrorism against Americans often comes from the Middle East, so it only makes sense to focus our attention on people from that area." (Of course, in actuality the national/"racial" distinction breaks down; Middle Easterners -- including Israelis -- have been detained or questioned because they look Middle Eastern, not because their nationality is known.)

Eugene Volokh, a law professor at UCLA, makes a larger argument in defense of holding foreign nationals to different standards of legal judgment in time of war. Civil libertarians need to remember that citizens of countries hostile to the United States have no legal reason to be loyal to American causes, says Volokh. "If someone is a citizen of Iraq, he has a political affiliation with a country that's sworn to be an American enemy. He has not sworn allegiance to the U.S. and he has no duty to do so.

"I used to be a Soviet citizen; when we left, our citizenship was revoked but until I became an American citizen, it made sense for law enforcement to pay more attention to me and my family," Volokh adds. "We came from a hostile country."

People who are American citizens but who were born in, say, Iraq, may deserve a greater degree of protection, according to Volokh, but the government has a right to question them, if only for information.

"It would be quite proper to say, 'Look, we want some information about possible infiltrators into the U.S.,'" he says. "This is someone who lived in Iraq, someone who knows the Iraqi-American community. He may have important information for us."

As for military tribunals, their defenders argue that in a wartime context they are justified and do not inherently violate civil rights.

"If someone is caught in Afghanistan and is accused of violating the rules of war -- killing POWs, civilians, or committing acts of sabotage against the U.S. -- I think it would be very odd to have him tried in a civilian court," says the University of Virginia's Moore. "The crimes are military crimes and belong in a military court."

It's also a matter of logistics. "What if we capture 500 al-Qaida members?" he asks. "Do we want to bring them all over to the U.S.? I don't think so."

Even the tribunals' defenders, however, admit that many cases are legally ambiguous. It's not clear, for example, what should happen if a non-American citizen in the U.S. lets a terrorist borrow money, then denies knowing that the borrower was a killer. But they remain convinced that military tribunals have a right to exist. Citing a 1942 Supreme Court decision that upheld President Roosevelt's use of tribunals, they argue that the present iteration plays a similarly necessary role.

The law defining the courts, which has yet to be finalized, may end up being far fairer and more limited that critics fear, Moore says. "We don't know the complete set of rules yet, but the basic operation of the tribunals are very narrowly cabined," he says. "They will apply not to U.S. citizens, even though they could legally do that. They're only applied to al-Qaida."

The courts also have "another extraordinary check," says Moore. "Every person has to be named by the president." Moreover, he adds, the fact that two-thirds of a panel of judges must vote to convict makes them actually fairer than some European criminal trials, in which a judge, not a jury, decides a suspect's fate. "To argue that two-thirds of a panel as opposed to a single judge is unfair doesn't make sense," Moore says. "There's no reason why we should have to stick to the idea of a unanimous jury."

Others also argue that considering the extraordinary threat the nation is under, it is necessary, to a degree, simply to trust law enforcement officials.

George Washington Law School professor Orin Kerr, who worked on electronic surveillance issues as an attorney in the Justice Department under both Attorney General Janet Reno and John Ashcroft, and drafted parts of the USA Patriot Act, says the attorney general is making the best of a nearly impossible situation.

"I think a lot of the criticisms are exaggerated," Kerr says. "What's difficult about this issue is that we don't know the nature of the threats that Ashcroft knows about. Whenever you talk about rules that would be appropriate, it depends on what the threat is. If there's a threat that Washington, D.C., is going to be nuked, that justifies more dramatic changes and rules than we must otherwise have. It's always very easy to criticize any departure from standard policy."

But he disagrees with Utah Sen. Orrin Hatch -- the ranking Republican on the Judiciary Committee -- and other Republicans who say the hearings are simply an attempt by the Democrats to score political points. "I think it's a great idea to have Ashcroft testify. The government is taking fairly strong measures, and Congress has a right to know why. This is how the system's supposed to work. We should all try to understand Ashcroft's perspective. The more light he can shed on why the Justice Department is doing what it's doing, the better."

Kerr says he understands why there is so much distrust of the expanded powers, but says the law enforcement culture has changed dramatically in the last 30 years. "What's tough about it I think is the track record isn't good, but it's largely the track record of J. Edgar Hoover, and J. Edgar Hoover is dead," Kerr said. "There's a considerable civil libertarian culture within law enforcement that didn't exist 30 years ago. I don't think you could get [law enforcement officers] to go along now. If they tried to do the things that Hoover did, my sense is you'd have the entire group talking to the New York Times and the Washington Post that afternoon."

Kerr also says individual agencies have been reined in since Hoover's death -- and that Ashcroft is no J. Edgar Hoover. "Before all this, John Ashcroft was considered very supportive of the civil liberties communities, not somebody who has been an enemy of civil liberties. We have new people running these agencies now."

Laura Murphy, director of the ACLU's Washington office, disagrees with Kerr's assessment. She points to a Jan. 9 statement by the organization about Ashcroft's civil liberties record released during his confirmation hearings.

"Senator Ashcroft's record has not been one of total hostility to civil liberties. He led efforts to protect the right to communicate privately by supporting free use of encryption and voted repeatedly to protect free speech rights in the context of campaign finance reform," the statement reads. "That said, however, the vast majority of Sen. Ashcroft's policy positions indicate that he fundamentally disagrees with core tenets of the Bill of Rights and Constitution as they are currently applied."

But at the very least, the public should take a "wait and see" approach, some suggest. "Military tribunals are something we should be on the watch for," says Volokh. "But we should judge them as they're applied, not on their face. There are clearly people who belong in military tribunals, and those who do not."

Though civil liberties issues have been raised by members of both parties, the hearings have taken on a partisan tenor. Sen. Hatch accused Democrats of being more concerned with scoring partisan points than with protecting civil liberties or American citizens.

"At some point, too many partisan hearings and too much hysteria only make it more difficult for the administration to do its real job," Hatch told the committee. "In the Judiciary Committee alone, we are holding four hearings in eight days. And these are multiple hearings on the same subjects."

David Carle, a spokesman for Sen. Patrick Leahy, D-Vt., who is the chairman of the Judiciary Committee, objected to Hatch's claims that Ashcroft's hearings amounted to a partisan witch hunt. "The hearing will be constructive, it will not be combative, I believe," Carle said. "Whether particular unilateral steps taken by the administration in the last two months are popular or unpopular at the moment, the committees that oversee the Department of Justice have oversight rules that are more important during times of national emergencies."

Carle also said his boss's concerns had as much to with the balance of power between the executive and legislative branches of government as with the specifics of the administration's actions. "As far as Pat Leahy is concerned, certainly he would like to see a renewed partnership of the kind the committee had with the attorney general working on the anti-terrorism bill and to explore ideas with the attorney general about parameters for military tribunals.

"The partnership during the work on the anti-terrorism bill was good for the public, good for the process and good for the administration. It yielded an anti-terrorism bill that had far more credibility than it would have had without the equal role the Congress played, and this bill itself was better than either the administration or the Congress could have produced on their own."

But clearly, Thursday's hearings have taken on an aura of a political showdown. A preemptive strike of sorts was unleashed from Vice President Dick Cheney earlier in the week, blasting Leahy for holding up Bush's judicial nominees.

"President Bush has fulfilled his constitutional responsibility to the federal judiciary," Cheney writes. "He announced his first eleven nominees more than six months ago; eight of them have yet to receive a hearing. I urge your committee to act so the Senate, in the remainder of this session and next year, can likewise fulfill its constitutional responsibility and fill the more than one hundred vacancies on the federal courts. It is time for the Senate to act."

By Anthony York

Anthony York is Salon's Washington correspondent.

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By Damien Cave

Damien Cave is an associate editor at Rolling Stone and a contributing writer at Salon.

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