Liberty's price

August 09, 2002

HOW DO YOU TURN alleged traitors into poster boys for protecting some of America's deepest values? Answer: Jail them without bail, charges, counsel or trial, even if they're U.S. citizens.

Despite some guff from a few independent federal judges, the Bush administration is aggressively pursuing the president's right to do this without judicial interference -- simply by unilaterally decreeing that the detained are "enemy combatants."

This constitutional challenge is driven by national security fears. But even in wartime, secret detentions are abhorrent in their side-stepping of judicial checks. And even the most loyal, law-abiding citizen should feel threatened by them.

Right now, the government is fighting hard to establish precedents in the cases of two Americans who have been deemed "enemy combatants": Jose Padilla, a former gang member arrested in Chicago for possible al-Qaida involvement, and Yasser Esam Hamdi, born in Louisiana, raised in Saudi Arabia and captured in northern Afghanistan while allegedly fighting for the Taliban.

This week, the Hamdi case has been in the forefront. A federal district judge has twice ruled that the government must let him see a public defender, but that was stayed on appeal. Even the appeals court, though, told the Justice Department it must provide more evidence on why it's holding Mr. Hamdi. For now, the case is stuck in procedural wrangling; the government could pursue more secret arrests if it prevails.

The Wall Street Journal reported yesterday that the administration wants to expand the use of indefinite detentions in military jails, possibly creating a government committee to decide who shouldn't be allowed their rights as citizens. The South Carolina military jail housing Mr. Padilla reportedly is ready to hold about 20 American "enemy combatants."

This certainly would be convenient for the government, given the problems it has had prosecuting John Walker Lindh, the Californian captured fighting for the Taliban, and Zacarias Moussaoui, a Frenchman allegedly part of the Sept. 11 plot. Prosecutors had to contend with an aggressive defense of Mr. Lindh and are now enduring Mr. Moussaoui's at times bizarre efforts to represent himself.

Establishing a star chamber also is consistent with administration practice since immediately after Sept. 11, when about 1,200 people, mostly Arabs or Muslims, were detained in secret. Most were released or deported after closed immigration hearings; more than 70 are still held. Last week in Washington, U.S. District Judge Gladys Kessler ordered the government to release the names of all of the detainees. She wrote: "Secret arrests are a concept odious to a Democratic society."

Facing terrorism at home and abroad, draconian measures are tempting. The nation is under serious threat, and the administration argues that keeping secret even relatively innocuous immigration hearings could help the ultimate cause of protecting America. Problem is, much more likely would be lost than gained.

Trying suspected traitors and terrorists in federal court might entail some national security risks. But that's the price of liberty.

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