Land of liberty

March 21, 2003

WITH AMERICA's armed forces streaming into harm's way to free Iraq from tyranny, it might seem tangential - or worse, nitpicking - to underscore the need for safeguarding civil liberties at home.

It isn't.

Historically, wartime has brought some of the greatest assaults on basic rights guaranteed by the U.S. Constitution. Facing threats, the American system shows its commander in chief great deference. But U.S. presidents, in the name of protecting citizens, quite often have stretched their considerable powers, breaching civil liberties in ways later resoundingly rejected by the courts and the American public.

With so much fear afoot, with Americans frightened for their troops in Iraq and their own families at home, now is an absolutely appropriate time for vigilance on the civil-liberties front - for not succumbing to the appeal of expanding government surveillance and detention powers.

This is hardly theoretical. The Bush administration followed the 9/11 attacks with an immediate effort to carry out preventive, secret detentions of foreigners, U.S. immigrants and even U.S. citizens picked up on American soil. And so far the courts have largely bowed to the White House.

Understandably, there's been very little outcry over the 650 "enemy combatants," not prisoners of war, picked up in Afghanistan and jailed indefinitely at the U.S. Navy's Guantanamo base. A federal panel last week rejected a request for a hearing by 16 of them - from Kuwait, Britain and Australia - saying they don't have any U.S. legal rights because Guantanamo is in Cuba. Nonetheless, the Defense Department should identify the 650 detainees, give as many as possible some sort of hearings, and clarify why they're being held.

In court, the government has had less success with its desire to keep secret the names of 1,200 Muslim or Arab men rounded up after 9/11, largely for immigration violations. Almost all have been released or deported after closed hearings. A federal judge, saying such secret arrests are "odious to a democratic society," demanded the release of their names. The Justice Department is still arguing against that.

And then there are the two Americans confined indefinitely on U.S. soil without charges, habeas corpus hearings or even legal counsel, again as "enemy combatants."

One, Yasser Esam Hamdi, was plucked from an Afghan battlefield where he allegedly fought with the Taliban; a federal appeals court has denied him counsel. The other, Jose Padilla, who allegedly was involved in a "dirty bomb" plot, was arrested in Chicago, and therefore his case is most troubling. The government has balked at a federal court order to let him talk with a lawyer - stalling that last week earned a stinging rebuke from the federal judge.

The concept of preventive, secret detentions - via shadowy systems in which there are few or no protections - is so anathema to the U.S. legal system and American values that the administration's assertion of such powers ought to have provoked wide concern. So far it hasn't, and the courts have provided only a limited brake. This may not be a popular position right now, but war in Iraq provides even more reason for standing up for liberty at home.

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