SEPTEMBER 17, 2002  

Bush's Police-State Tactics After Sept. 11 Alienate ABA

        Forum Column
        By John C. Burton

        Some news coverage of last month's American Bar Association Convention incorrectly blamed the lack of support for Bush administration policies on a tide of liberal consternation over how the Republican-run government has behaved.
         The real reason that the administration's policies are not being supported, however, is that the administration has isolated itself by pressing forward with police-state measures inconsistent with the democratic traditions on which the Constitution and the U.S. legal system are based.
        According to a news report in the Aug. 8 Wall Street Journal, the Bush administration is formulating plans for a special committee comprising the attorney general, the secretary of defense and the CIA director to designate enemy combatants. A person so labeled then can be transferred to military custody and held indefinitely in incommunicado detention, subject to interrogations and beyond the reach of judicial review.
        This plan ignores the Bill of Rights and two centuries of jurisprudence interpreting it, and it eliminates the system of checks and balances that underlies the constitutional framework as a whole. No longer are people subject to arrest and incarceration only for violating statutes, and no longer can they obtain access to courts to protect their rights.
        It is no coincidence that the expansion of the Bush administration "enemy combatant" detention policy follows the resolution of the first criminal case arising after the Sept. 11 terrorist attacks - the criminal prosecution against John Walker Lindh.
         Lindh claimed that the government denied him his right to counsel while subjecting him to mistreatment tantamount to torture. His defense attorneys were prepared to establish that the Taliban grew out of U.S. support for anti-Soviet forces in the region and had been wooed by major U.S. corporations such as Unocal.
         In a humiliating retreat, the Justice Department dropped its claims of terrorism and demands for life imprisonment in exchange for a plea agreement that Lindh violated a Clinton-era regulation banning providing services to the Taliban.
        The Lindh case convinced the Bush administration to avoid courts and criminal defense attorneys altogether.
         As an administration senior official said, according to the Wall Street Journal report of Aug. 8, "There is a different legal regime that we're developing."
         This regime consists of using the military to lock people up indefinitely without charges, court appearances or lawyers.
        John Ashcroft is using two prisoners, Yaser Hamdi and Jose Padilla, to establish the precedent for indefinite, incommunicado detentions of U.S. citizens, without judicial review. Hamdi, a U.S. citizen, was captured in Afghanistan last fall. When his U.S. citizenship was discovered during interrogations at Guantánamo Bay, Cuba, he was transferred to a naval station brig in Virginia.
        U.S. District Judge Robert G. Doumar, a Reagan appointee, granted a petition filed by Hamdi's father compelling the government to allow Hamdi to consult with a court-appointed lawyer. Rather than follow the court's order, the Bush administration appealed it to the 4th U.S. Circuit Court of Appeals, the most right-wing court in the United States.
        In its appeal papers, Justice Department attorneys argued that the petition should be dismissed because, "given the constitutionally limited role of the courts in reviewing military decisions, courts may not second-guess the military's determination that an individual is an enemy combatant and should be detained as such."
         Even the 4th Circuit rejected this brazen attack on judicial authority, but it directed the District Court to reconsider its order.
        Back in front of Doumar, government attorneys relied on a two-page affidavit by "Michael H. Mobbs, a special adviser to the Defense Department," that stated Hamdi was an "enemy combatant" not entitled to counsel.
         Doumar responded, "I tried valiantly to find a case of any kind, in any court, where a lawyer couldn't meet with a client ... This case sets the most interesting precedent in relation to that which has ever existed in Anglo-American jurisprudence since the days of the Star Chamber."
        While Hamdi was captured in a theater of war, Padilla, a native of New York City, was seized after disembarking from an airplane in Chicago's O'Hare International Airport, thousands of miles from any combat zone. Nevertheless, the Bush administration labeled Padilla an "enemy combatant" and has held him incommunicado since May 8.
        The alarm of the ABA is justified. Its preliminary task force on treatment of enemy combatants concludes that "the Administration has not yet attempted to explain what procedures it believes should be required to assure that detentions are consistent with due process, American tradition, and international law."
         "It cannot be sufficient for a President to claim that the Executive can detain whomever it wants, whenever it wants, for as long as it wants as long as the detention bears some relationship to a terrorist act once committed by somebody against the United States. Short of such a claim, what are the limits?" the report states.
        This report was not the work of civil libertarians. The task force was chaired by a former assistant U.S. attorney and included a retired brigadier general who spent 26 years as an army judge advocate, as well as the current president of the National Institute of Military Justice.
        Lawyer James Brosnahan's statement at the ABA Convention that Ashcroft "is one of the most dangerous people to hold government office in the history of this county" is not hyperbole.
         The Bush administration's attack on our constitutional freedoms is a far greater threat than any danger from al-Qaida and its ilk.
        John C. Burton
 is a Pasadena lawyer.


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