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Attention Turns Back to Liberties

By Joan Biskupic
USA Today
Posted on Thursday October 31, 2002

A year ago, it was all about unity and security. Rattled by the Sept. 11 terrorist attacks, Americans rallied around the flag and accepted the idea that the government needed to take extraordinary measures to make people feel safe again.

So there was little public criticism when the Bush administration began to secretly deport hundreds of immigrants, most of them from the Middle East. Not many people objected when deportation hearings, previously held in public, were closed. Or when the White House won congressional approval for expanded wiretapping and spying authority.

But now, skepticism of government is back. In public opinion polls, the courts and Congress, there is an emerging resistance to what a growing number of critics say is an extraordinary assault on civil liberties by the Bush administration:

• Polls and newspaper opinion pages indicate that Americans increasingly fear that the White House’s encroachments on civil liberties run against this country’s democratic values. In a recent USA TODAY/CNN/Gallup Poll, 62% of those surveyed said that the government should take steps to prevent future terrorism — but not if it means violating basic civil liberties. In January, only 49% said so.

• Federal judges increasingly are questioning the constitutionality of the administration’s actions. In August, a federal appeals court in Cincinnati became the first such court to strike down one of the government’s new anti-terrorism tactics. The court ruled that officials could not keep secret all deportation hearings involving people who were picked up in the post-Sept. 11 dragnet. “A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution,” Judge Damon Keith wrote.

In a separate case in October, a federal appeals court in Philadelphia upheld such secret hearings, saying that the ongoing terrorist threat requires such a step. The Bush administration last week asked the Cincinnati-based appeals court to hear the case again; the legal conflict could ultimately be decided by the U.S. Supreme Court.

• Congress has asserted its check on the executive branch. It has scuttled a proposed government hotline for delivery workers and others to report suspicious activity and demanded that the White House justify several of the new policies. Members of the Senate and the House of Representatives are examining whether the Justice Department is abusing its new wiretap powers, and they are pressing the administration to justify labeling two U.S. citizens as “enemy combatants” who may be detained indefinitely by the military without being charged or allowed to see a lawyer.

“In the immediate aftermath, there was this huge approval of authority figures,” says Tom Smith, survey director at the National Opinion Research Center in Chicago. “The public also was braced for more attacks and thought: ‘We have to do what is necessary.’ But over the months a number of questionable situations have arisen. People have been detained, in secret and without explanations. ...(Americans) want more details now.”

Last week, the American Civil Liberties Union and other groups filed a lawsuit against the Justice Department seeking to force the government to explain how it is using the new domestic spying powers granted in the USA Patriot Act passed last year. They said that “the act vastly expanded the government’s power to obtain personal information” and that there is “growing public concern about … the manner in which the government has been using its expanded authority.”

The renewed interest in protecting liberties could pose problems for the Bush administration, which is defending its moves against domestic terrorism by asserting: We are at war. Terrorists are amongst us.

“We are at war, facing a terrorist threat from unidentified foes who operate in covert ways,” Justice Department spokeswoman Barbara Comstock said.

But political and legal analysts say that as public and congressional pressure builds, the administration probably will have to more fully explain the nature of threats against the United States, be more forthright in court and disclose more to Congress in support of its policies.

“In this kind of conflict, where the enemy is hard to identify, the increased interest in civil liberties can be a problem for the government,” says Lee Casey, a Washington, D.C., lawyer who worked in the Justice Department under President Reagan and the first President Bush and supports the current administration actions.

Mostly silence
For now, the administration remains largely silent on details about its new electronic snooping, the more than 1,000 foreigners who were rounded up after the Sept. 11 attacks (most of whom were later found not to be tied to terrorism), and its legal basis for designating U.S. citizens as enemy combatants.

Members of Congress are particularly concerned about what the administration is doing with its expanded wiretapping authority. Legislation signed by the president a year ago permits intelligence agents and prosecutors to share information in investigations; authorizes “roving” wiretaps on all telephones a terrorism suspect might use; and lets investigators get wiretap authority from a special foreign-intelligence court even if such intelligence is not the only purpose of the surveillance.

An overriding question is whether the new bugging powers are being used improperly for routine criminal probes when agents lack the evidence to go through the usual warrant process. Last year, several members of Congress warned the Justice Department that it would be subject to sharp oversight on the new powers.

Now the Senate “may have to issue subpoenas to get answers to legitimate questions,” Sen. Patrick Leahy, D-Vt., said in September, complaining that Attorney General John Ashcroft had not given Congress information about the FBI’s surveillance. “I hope it doesn’t come to that, but if it does, it does.” Since then, Leahy and other key senators have been weighing the less extreme step of asking the General Accounting Office to conduct an investigation of the new surveillance.

It isn’t just Democrats who are critical. Several of the administration’s moves on civil liberties have played into GOP hostility toward an intrusive government and drawn criticism from the libertarian wing of the president’s party.

Sens. Arlen Specter, R-Pa., and Chuck Grassley, R-Iowa, have joined Leahy in calling for more details about the electronic surveillance. In the GOP-controlled House, Judiciary Chairman Jim Sensenbrenner, R-Wis., has done likewise.

Meanwhile, House Majority Leader Dick Armey, R-Texas, led the fight against the administration’s Terrorism Information and Protection System, which would have urged utility workers and delivery people to report suspicious activity to a government hotline. “Citizens should not be spying on each other,” he said.

‘The fear factor has eased’
Public opinion analysts say the new attention to civil liberties suggests that Americans have moved past the shock of the attacks and are balancing their desire to boost national security with their support of individual freedom.

“The fear factor has eased,” says Karlyn Bowman of the American Enterprise Institute in Washington, D.C. “People are saying airport searches are OK, but not unchecked wiretapping. One of the dramatic changes after Sept. 11 was the spike in trust in government. That has now come back to its usual levels.”

Joshua Rosenkranz of the Brennan Center for Justice at New York University Law School, says, “There is an increasing appreciation that what we’re fighting for are the values that make us so strong. The challenge is to implement tangible measures that actually protect us, without unduly infringing on liberties.”

Most Americans backed the crackdown on immigrants after 19 Middle Eastern hijackers carried out the Sept. 11 attacks, but stories about innocent people caught in the dragnet have fueled concerns about whether authorities were too zealous.

For Ali Al-Maqtari, 27, it has taken about a year to feel free again.

Al-Maqtari, a Yemeni national, was seized on Sept. 15, 2001, as he dropped off his wife, a U.S. citizen and private in the Army, for duty at Fort Campbell, Ky. Al-Maqtari’s tourist visa had expired. He had gotten married and applied for permanent residency but had not yet been approved.

Before Sept. 11, 2001, people in his situation rarely were jailed. But Al-Maqtari, who also raised suspicion because he was carrying box cutters similar to those the hijackers used, was held for two months.

“I was treated as a guilty man by prison guards and immigration officers,” he said at a Senate hearing in December, after he was charged with a minor immigration offense and released on bond.

Sen. Russ Feingold, D-Wis., who led the hearing, called the treatment of Al-Maqtari “shameful because we have reason to believe your story is not unique.”

Al-Maqtari says he lost friends and had trouble finding a job. (He now works at a convenience store in Connecticut.) “We were looking for pennies in the car,” he said recently. “We were living off my wife’s credit cards.” His wife, Tiffinay, left the Army with an honorable discharge.

Al-Maqtari’s ordeal ended quietly Sept. 20 when an immigration judge cleared him of the visa violation. “I felt free,” says Al-Maqtari, who has been approved for permanent residency. “I took my wife to dinner. It was a long year.”

Much of the congressional criticism focuses on the prolonged confinement of two U.S. citizens the administration calls “enemy combatants.” They are in military brigs, away from the constitutional safeguards of federal courts.

Focus on two cases
Louisiana-born Yaser Esam Hamdi, 22, was captured in Afghanistan while apparently fighting for the Taliban. Jose Padilla, who had lived in Broward County, Fla., was arrested in May after arriving in Chicago on a flight from Switzerland. Padilla, 31, has been linked to an alleged al-Qaeda plot to set off explosives — possibly a radioactive bomb — in the USA.

Neither has been charged; both have been denied access to lawyers. Administration lawyers say that enemy combatants seized as part of the war against al-Qaeda can be held indefinitely without charges. In the Hamdi case, the Bush administration urged a Richmond, Va.-based federal appeals court Monday to allow the detention and said forcing the authorities to reveal information about Hamdi’s capture and the case would hurt anti-terrorist efforts.

In New York, lawyers for Padilla have gone to court to challenge his detention by the military and have asked to see him.

Feingold, chairman of a Senate Judiciary subcommittee, and Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, have asked Ashcroft and Defense Secretary Donald Rumsfeld to explain the legal rationale for the “enemy combatant” status. “These cases raise fundamental questions about the constitutional protections afforded U.S. citizens during times of national crises,” the senators wrote.

In an October speech, Ashcroft rejected the notion that the administration is trampling liberties.

“Our actions are firmly rooted in the Constitution, secure in historical and judicial precedent and consistent with the laws passed by Congress,” he said. “Nevertheless, our actions have been met in some quarters with disdain and ridicule. ... The critics call for a return to the culture of inhibition (that) existed prior to Sept. 11, 2001. It was a culture whose law gave terrorists a technological advantage.”

Victoria Toensing, a former Justice Department anti-terrorism official, says the department “is paying attention to the courts, not the polls. All of these issues are going to end up at the Supreme Court.”

Would the ideologically divided high court endorse secret deportations or U.S. citizens being put in military brigs? That’s unclear.

“It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime,” Chief Justice William Rehnquist wrote in his 1998 book, All the Laws But One: Civil Liberties in Wartime. But he added, “it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government’s claims of necessity as a basis for curtailing civil liberties. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice.”