By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
Just in case Patriot II doesn't make it into law, Congress is scheduling hearings to extend Patriot I beyond 2005, when some of its more controversial measures are set to expire.
How Much Is Too Much?
"We will...defend freedom, and justice, no matter what the cost." Attorney General John Ashcroft, April 9, 2002
"Freedom" has been part of the post-September 11 mantra. The terrorists hate our freedoms. We have to defend our freedoms. We toppled Saddam Hussein's regime so that Iraqis might claim their God-given freedom. Weighed against the Bush administration's legal actions at home, this line of rhetoric is ironic, to say the least.
Patriot I was enacted in an atmosphere of panic, paranoia, and patriotism. Ashcroft mounted quite an offensive when he laid it out before Congress. If you dared to criticize in that hour of peril, you were by definition soft on terrorism. The press now admits that it rolled over for Patriot I; the handful of journalists who questioned its provisions got hate mail and death threats for their trouble. But it left even some Republicans thinking Ashcroft had gone too far.
Though there isn't much they can do about it. We may have Congress to thank for the Patriot Act itself, but Ashcroft's executive orders and the regulations hastily promulgated by the agencies under his control are where the real action has been. In 2002, more than 1,200 secret warrants were issued by Ashcroft's Justice Department, FBI field offices, and the secret Foreign Intelligence Surveillance Court (FISA) to conduct surveillance on all manner of personal activities and records. Indeed, people recently arrested for "crimes" allegedly uncovered as a result of such secret surveillance have been stunned to learn that the Patriot Act specifically disallows any judicial review of the legality of the warrant or of the evidence obtained as a result. Secret detentions, secret evidence, secret trials. What's next? Secret executions?
The administration engaged in much finger-pointing recently when Cuba secretly tried some of its political dissidents. The trials were in secret, appeals were summarily denied, and harsh sentences were meted out. Cuba claims the dissenters were a threat to its security, echoing Ashcroft's justification for his Justice Department's heavy-handed tactics. Already in this country we have closed trials and, for the first time in American history, closed arguments in a federal appeals court. The Fourth Circuit Court of Appeals in Richmond, Virginia, a federal court that sometimes makes the U.S. Supreme Court look liberal, is closing to the public the appeal of Zacharias Moussaoui, who, according to the Justice Department, was involved in planning the September 11 terrorist strikes.
The government is appealing U.S. District Court Judge Leonie Brinkema's ruling that the Justice Department must give Moussaoui and his lawyers access to the government's star witness against him. Judge Brinkema says that the Justice Department is cloaking its case in such a shroud of secrecy that a fair public trial, as required by the 6th Amendment, will be difficult if not impossible. The Justice Department has suggested that if it loses on appeal--not likely, given the Fourth Circuit's propensity to rule for the government--it may remove Moussaoui to Guantanamo, Cuba and try him in a military tribunal. And no US court can touch him then.
Some parents of Afghan prisoners in Guantanamo filed a lawsuit challenging their sons' continued detention; it was tossed out by a District of Columbia federal judge. Lawyers for the plaintiffs argued that the detention was a violation of the Geneva Convention on the treatment of POWs. But the administration has termed them (like Yasir Hamdi) unlawful combatants: They were not wearing the uniform of any recognized country, and thus they are not entitled to the protections of international law. The Court, in one of the all-too-many post-September 11 rulings fraught with catch-22 reasoning, said that the detainees are not in the United States, but in a foreign country, and hence the doors of U.S. courthouses are closed to them. The decision places a Guantanamo prisoner in legal limbo, even though he is imprisoned all the while by the American government on a US military installation.