Terror and the law

May 06, 2002

FUNNY THING about the U.S. Constitution and its protections against unlawful imprisonment: It makes it so darned difficult to fight terrorism the easy way.

It would be easiest, for example, for the government to just lock up everyone who's suspected of being a terrorist, wanting to be a terrorist or even knowing someone who wants to be a terrorist. Hold them (without charging them) until their guilt or innocence can be determined; keep them off the streets long enough to prevent another attack -- even if they weren't planning one.

But you can't do that in America. Here, evidence has to lead to an arrest, and charges have to follow detention -- or suspects have to go free.

Since Sept. 11, Attorney General John Ashcroft has been trying to make Americans forget about the law. In the name of national security, his agents have been rounding up all manner of "terror suspects" and even suspected witnesses. No one has yet been charged. No evidence of a crime has been presented.

It's a blatant overreach of authority -- and a federal judge finally said so last week. U.S. District Judge Shira Scheindlin declared that the Justice Department's tactic of imprisoning "material witnesses" in grand jury proceedings is illegal. Her order dismissed charges against a Jordanian student who was held for three weeks, and could affect the cases of nearly two dozen others who were detained under similar circumstances.

As a legal matter, the judge's decision turned on a very narrow, clear-cut point. While federal law permits the government to hold witnesses during trials if their testimony is important and there's a fear they will flee, the judge said it does not allow the same with regard to grand jury proceedings.

That's because in a trial, charges have been brought against a defendant, and evidence is being presented to prove that a crime was committed. At grand jury proceedings, there is no charge and the proceedings can be convened based on evidence as scant as rumor and innuendo. Oftentimes, grand juries meet for months and never produce indictments.

The judge said holding material witnesses under those conditions raises issues surrounding illegal search and seizure, which are prohibited by the Fourth Amendment.

But the ruling's importance goes even further than the legal implications. The judge's actions properly put the government on notice in its fight against terror: Get the bad guys, but do it without trampling the Constitution. The government cannot protect this country and its values by perverting the laws that embody those values.

Without question, Sept. 11 compelled more vigilant, proactive efforts to stop terrorists before they kill. And the Justice Department should make use of every law on the books to do so.

But in terse language, the judge warned that "broad" interpretations of federal law could make "detention the norm and liberty the exception." And the tactics Mr. Ashcroft's department is using? No Congress since 1789 has granted authority that broad.

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