Antiterrorism's methodology in the spotlight

Issue: Whether civil liberties of Americans are being violated in the battle is being heard more and more in the courts.

September 01, 2002|By Laura Sullivan | Laura Sullivan,SUN NATIONAL STAFF

WASHINGTON - Attorney General John Ashcroft has taken on the threat of terrorism with a bruising combination of methods that have often come into conflict with civil liberties.

Ashcroft, among other things, has relaxed domestic spying guidelines, secretly detained 1,200 Middle Eastern men accused of immigration violations and incarcerated two U.S. citizens without charges - one accused of fighting for the Taliban, the other of plotting a terrorist attack.

Ashcroft's actions have won praise and condemnation. His champions insist that perilous times demand extraordinary measures. His critics charge that he has gone too far and trampled on basic freedoms.

This tug-of-war over civil liberties and who is entitled to them is playing out in several federal courtrooms, as the government tries to convince judges that its response to the attacks of Sept. 11 has been appropriate.

A fresh dispute emerged recently with the release of a May 17 opinion by the secret federal court that oversees terrorism-related wiretaps and electronic spying. The court refused to give Ashcroft the expanded powers he sought.

In a sharp rebuke, the court found that the Justice Department, largely during the Clinton years, had misled the court at least 75 times with erroneous information in its requests.

The department has fared a little better with some appellate courts which have signaled their tilt toward the government's position. But last week, in the first sign that civil liberties groups might prevail on the issue of courtroom secrecy, a three-judge panel of the federal appeals court in Cincinnati issued a harsh rebuke of the government's efforts to close an immigration hearing, and ordered it opened to the public. The government has not said if it will appeal.

Despite the fierce courtroom battles, legal scholars say that when looked at over the course of American history, the government's wartime measures have grown less restrictive with each passing conflict - and the current war seems no different.

"After a success, we think the restrictions on civil liberties were excessive," said Cass R. Sunstein, a constitutional law professor at the University of Chicago Law School. "Hindsight after each successful war" continues the progression toward fewer restrictions.

"It's interesting because we tend to think the framers of the Constitution gave great safeguards for civil liberties - and in a sense they did - but the safeguards have really had their biggest life in the past 40 years," Sunstein said.

Sunstein and others point to a general distrust of government and the military that has afflicted the American public since the 1960s as a result of the Watergate scandal and the Vietnam War.

In the past, Americans put up with severe restrictions on civil liberties. During the Civil War, Americans tolerated Abraham Lincoln's suspension of the right of arrested citizens to appear in open court and hear the charges against them. After World War I, there was a wave of arrests and deportations of "radicals" spearheaded by A. Mitchell Palmer, Woodrow Wilson's attorney general, as Americans feared that a Bolshevik-style revolution was waiting in the wings.

And after the December 1941 Japanese attack on Pearl Harbor, the Justice Department, on orders from President Franklin D. Roosevelt, rounded up more than 100,000 Japanese-Americans and shipped them to internment camps.

At issue today are a number of measures implemented by Ashcroft or imposed at the attorney general's urging that, while not nearly as extreme, have triggered a fresh round of recriminations.

Some key elements in the debate:

The government secretly detained 1,200 Middle Easterners on alleged immigration violations, some for at least six months. None has been charged in the attacks, and all but 200 have been released.

The president, acting on Ashcroft's advice, announced last fall that those captured in Afghanistan might be tried by military tribunals, where the defendants' rights can be sharply limited and the trials can be held in secret. To date, no tribunals have been employed.

Ashcroft loosened domestic spying guidelines so that FBI agents can collect information from mosques, churches, the Internet and other places open to the public without evidence of criminal behavior. In the past, agents had to show entering an establishment or conducting public surveillance was part of an investigation into a crime.

Ashcroft led the fight for congressional passage of the USA Patriot Act, which allows federal investigators greater license to search homes and offices, track Internet use, review library records and monitor telephone conversations without having to show probable cause.

It also gives the CIA access to confidential information from grand juries and allows the monitoring of conversations between attorneys and clients in cases the Justice Department says involve national security.

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