Stuart Taylor's column today -- "Falsely Accused 'Enemies' Deserve Due Process"

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Mike Godwin <mnemonic () well com>
Date: Mon, 17 Mar 2003 15:44:27 -0500
To: Dave Farber <dave () farber net>
Subject: Stuart Taylor's column today -- "Falsely Accused 'Enemies' Deserve
Due Process"


Dave,

It ought to be unnecessary to say this, but even *correctly* accused
enemies of the state deserve due process -- not least because due
process is the best way of determining whether they were, in fact,
correctly accused. Even so, Stuart Taylor's heart, if not headline,
is in the right place.


--Mike


Falsely Accused 'Enemies' Deserve Due Process

By Stuart Taylor Jr., National Journal
© National Journal Group Inc.
Monday, March 17, 2003

Two major court decisions on the rights -- or lack of rights -- of
suspected terrorists, Talibans, and others detained in the war
against terrorism came down on March 11. The first held that the 650
foreign nationals seized by U.S. forces abroad and detained at
Guantanamo Bay, Cuba, have no legal rights enforceable in U.S.
courts. The second decision, by contrast, sharply rebuffed the Bush
administration position that even a U.S. citizen arrested in this
country can be held incommunicado indefinitely, with no right ever to
see a lawyer, a judge, or anyone else, if the military labels this
person an enemy combatant.

      Both rulings may be legally correct. But they also illustrate
that unless Congress requires due process for such detainees, many
and perhaps all of those who are wrongly classified as enemy
combatants will be lost in a Kafkaesque maze, with no help from the
courts in most cases and inadequate help in others.

This at a time of mounting allegations that some detainees who turned
out to be innocent have been subjected to months of brutal conditions
designed to soften them up for interrogation.

For example, two former Afghan prisoners at the U.S. air base at
Bagram, Afghanistan, named Abdul Jabar and Hakkim Shah, told The New
York Times that between interrogations they were kept standing in
cold cells for two weeks, day and night, naked (in Shah's case),
hooded, arms chained to the ceiling, feet shackled, and sleepless,
with guards kicking them or shouting to keep them awake. The deaths
of two other Bagram detainees are under investigation as homicides,
caused in one case by what a U.S. military pathologist called
"blunt-force injuries to lower extremities complicating coronary
artery disease." The man was 22.

Claims of brutal treatment have also been made by some of the 1,200
Muslim men who were detained in the U.S. in the aftermath of the
September 11 attacks, mostly for immigration violations. Consider the
story of Egyptian-born Hady Hassan Omar. He was picked up the day
after the attacks, for a good reason: Omar had bought plane tickets
for September 11 using the same computer, at the same Kinko's outlet,
that Mohamed Atta had used.

Was Omar part of Atta's plot? Or just unlucky? To find out, the
government held and interrogated him for 73 days under conditions so
harrowing that he became suicidal. Or so Omar told reporter Matthew
Brzezinski, who wrote about his experience in the October 27 issue of
The New York Times Sunday Magazine:

"Three cameras recorded his every move. The lights in his cell
weren't turned off for weeks at a time.... Strip, he was told, once
again. A dozen officials, including two women, he recalls, looked
on.... Omar stood naked while his body cavities were searched for the
third time in less than four days. He still has trouble speaking in
front of his wife about what happened next. 'They told me to lift my
testicles,' Omar remembers, blushing slightly. 'One of the guards
pointed at my backside and said, "You sure you're not hiding anything
in there?" I said no.' ... [A] man in white medical scrubs entered
the room. He wore a latex glove. Bend over, he said. Squinting from
the pain, Omar looked up at one of the INS guards who had escorted
him from the New Orleans prison. She was laughing, he says....

"It's impossible to say precisely why the authorities finally decided
that Omar must be telling the truth. One senior law enforcement
official in Washington did, however, agree to share a theory.... 'If
your subject has a complete breakdown,' he said, 'the barriers to
resistance are lessened. Once a person is at that point, he has lost
the will to deceive, and you can be pretty certain that he's not
lying.' "

Is this our government's policy for handling people who might be
terrorists -- or might not? To brutalize them until they break,
spilling out their inner thoughts? In the face of reports like these,
the government's assurances of humane treatment cannot be taken at
face value. Nor can its classification of all detainees as guilty
until proven innocent. Indeed, one wonders how many more may have
evidence of innocence that the government ignores to avoid
acknowledging mistakes.

But under current law, innocent suspects caught up in the war against
terrorism will get no help at all from the courts if they are foreign
nationals captured and detained abroad. That is the lesson of the
March 11 decision (PDF) in Al Odah v. U.S., which dismissed three
lawsuits by family members seeking the release of 12 Guantanamo
detainees from Kuwait, two from Britain, and two from Australia.

The Kuwaiti lawsuit argued that the 12 were not combatants but
charity workers who had been seized by Pakistani bounty hunters and
sold to U.S. forces. The evidence of their noncombatant status has
been deemed credible by high-level Kuwaiti officials and some
journalists. But the U.S. Court of Appeals for the D.C. Circuit
nonetheless ruled that none of the detainees has any right to seek
judicial relief, under any circumstances.

"No court in this country has jurisdiction," Judge A. Raymond
Randolph wrote for the unanimous three-judge panel, because "aliens
detained outside the sovereign territory of the United States" are
not protected by the Constitution. This appears to be a correct
application of a 1950 Supreme Court precedent, Johnson v.
Eisentrager. More debatably, Judge Randolph also held that Guantanamo
was outside U.S. "sovereign territory" because Cuba technically
retains sovereignty.

The legal black hole in which this leaves any and all innocent
detainees held by U.S. forces abroad is both unjust and insulting to
the international community. If this is the law, then the law needs
amending.

Fundamental American values and international norms require some kind
of due process for all prisoners, no matter where detained. Congress
should now force the administration to do what it should have done
long ago: assign military tribunals to interview every detainee and
to provide all those who plausibly claim that they are not enemy
combatants with a fair opportunity to prove it.

In the second March 11 decision (PDF), Padilla v. Rumsfeld, Chief
Judge Michael B. Mukasey, of the U.S. District Court in Manhattan,
did about as well as could be done under current law in crafting a
procedure to allow U.S. citizens and others detained in this country
to contest the military's claims that they are enemy combatants.

The case involves Jose Padilla, a U.S. citizen (and convicted
murderer) who was arrested last May, after flying from Pakistan to
Chicago, on suspicion of plotting a dirty-bomb attack for Al Qaeda.
In his initial ruling (PDF), on December 4, Judge Mukasey upheld the
government's central contention: that it can detain any "enemy
combatant" indefinitely without criminal charges, and without the
protections required for criminal defendants. But the judge had
rejected the government's view that he had virtually no power to
second-guess its determination that Padilla was an enemy combatant,
or even to let Padilla see a lawyer or appear in court to respond.

Unsatisfied, the administration pressed Judge Mukasey to reverse
himself, based on a sworn statement by Vice Adm. Lowell E. Jacoby,
director of the Defense Intelligence Agency, that allowing any
contact between Padilla and a lawyer could destroy the "dependency
and trust" necessary for effective interrogation.

In his sternly worded opinion of March 11, Judge Mukasey dismissed
this forecast as "speculative." He suggested that if Padilla were
given a chance to consult a lawyer and go to court, and then "lost in
short order," the man might quickly realize that "cooperating with
his captors" was his best option.

In any event, Judge Mukasey held, "I cannot confirm that Padilla has
not been arbitrarily detained without giving him an opportunity to
respond to the government's allegations," and "there is no practical
way for Padilla to vindicate that right other than through a lawyer."
(For a slightly different view on the latter point, see my column of
March 8.)

Judge Mukasey's logic is compelling. But the government seems likely
to appeal, and it just might win. That would be a disaster for civil
liberties. Besides, detainees like Padilla -- who has been held
incommunicado since last June -- should not have to wait months for a
hearing. Congress should step in both to ratify Judge Mukasey's
decision and to set specific deadlines for expedited hearings in such
cases.

Padilla is the only person arrested in the U.S. so far to be handed
over to the military as an enemy combatant. And the evidence against
him may well be solid. But the administration claims the power to
deny meaningful judicial review to anyone -- to immigrants such as
Hady Hassan Omar, to you, or to me. Congress should say: Not in
America.

Stuart Taylor Jr. is a senior writer for National Journal magazine,
where "Opening Argument" appears.
-- 
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Mike Godwin can be reached by phone at 202-518-0020
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