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Civil Liberties under Fire as U.S. Government Continues War on Terror - 2003-12-30

A recent panel discussion in Washington examined the question as to how the United States government can balance the civil liberties laid out in the U.S. Constitution and the Bill of Rights with the need to protect American citizens from terror attacks. VOA’s Serena Parker attended the conference and has more in today’s report.

One of America’s founding fathers, Benjamin Franklin, warned his fellow citizens to cherish and defend their liberties set out in the U.S. Constitution and Bill of Rights: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

But as the U.S. government continues to fight a war of indefinite duration against a shadowy enemy that owes allegiance to no state, many legal scholars say some infringements on American’s cherished civil liberties are necessary to prevent future terror attacks.

David Cole, professor of law at Georgetown University, is not one of them. “The bottom line that I insist upon,” he says, “is that basic human rights should not be denied to anybody. And what the Bill of Rights identifies were understood - at the time the Bill of Rights was drafted - as natural rights, God given rights. God didn’t give them to people with passports. God didn’t give them to white people. God gave them to all people.”

David Cole says since September 11, 2001 American citizens haven’t had to choose which civil liberties they are willing to sacrifice in the name of greater security. Instead, the U.S. government has targeted foreign nationals from Arab and Muslim countries who cannot vote and thus have little political importance. Mr. Cole says American citizens should beware.

“History shows that what the government does to foreign nationals today is but a precursor for what it will do to citizens tomorrow,” he says. “Every significant measure of political repression applied to citizens – from guilt by association to punishing subversive speech to preventative detention to political spying - started out as an anti-alien measure but was ultimately extended to U.S. citizens. And we’ve already seen that line crossed here with respect to enemy combatants.”

“The reality is we do have a problem of terrorists trying to destroy us,” says Judge Michael Chertoff, who sits on the U.S. Court of Appeals. He previously served as an assistant attorney general for the U.S. Department of Justice.

“And the difficulty,” he says, “is when someone like David Cole says, ‘Well, only one in a thousand people really is a threat.’ The problem is that one in a thousand people can kill a million people. One person with the right type of technology - putting plutonium in a water system or detonating a bomb in the Lincoln Tunnel - could cause enormous havoc.”

Judge Chertoff defends the government’s practice of rounding up foreign nationals and detaining them if they have committed criminal offenses or if they are not in the country legally.

“Even if it were true that only a fraction of the people picked up under this lawful process actually posed a danger,” he says, “would it have been responsible for the Administration to take the opposite position? To let them all go on bail because you don’t have enough to prove a case beyond a reasonable doubt? And then, if one or two decided to blow up the Lincoln Tunnel and a couple of thousand people were killed, would the next 9/11 commission say that’s a great choice. Let’s keep it up? Or would people say the government wasn’t behaving responsibly?”

Judge Chertoff and many legal scholars argue that the traditional openness of the U.S. government and the public’s access to information may be abridged in the current political climate if it is necessary to protect American citizens.

John Yoo, former deputy assistant attorney general for the Department of Justice, is a visiting scholar at the American Enterprise Institute, a Washington-based research organization. He says the government has an interest in keeping information about terror arrests from the public because it can be used by terrorists against us.

An example is the case against Zacaria Moussaoui, an admitted Al Qaeda sympathizer on trial in a U.S. court for his alleged role in the 9/11 attacks on New York and Washington. Mr. Moussaoui wants direct access to three Al Qaeda terrorists who he says can prove he wasn’t involved in the attacks. The government has so far denied him such access because that would interrupt key interrogations. John Yoo says the case against Mr. Moussaoui is crucial because it deals with the constitutional rights enjoyed in peacetime as opposed to those in wartime.

“I think this gets to a fundamental difference as to what the criminal justice system is about and what the war or intelligence world is about,” he says. “In the criminal justice system it’s retrospective. You are aimed at putting together a matter of historical fact what happened and who is responsible. And our system in peacetime has the luxury of providing great constitutional rights or broad constitutional rights and allowing our system to do that. The military system is completely different. It’s not about retrospective history. It’s about prospectively stopping future attacks or future threats from materializing, and the Moussaoui case is a perfect example of how there’s a tension in those two different approaches.”

Recently the U.S. Justice Department indicated it might compromise and allow Mr. Moussaoui access to the Al Qaeda detainees’ statements without meeting them face to face.

There are several cases involving alleged Al Qaeda and Taleban members moving through the U.S. court system. Many involve habeas corpus rights, which requires that a person held in jail be formally charged and allowed access to a lawyer.

Ruth Wedgwood, a former federal prosecutor and professor of international law at the Johns Hopkins School of Advanced International Studies, says the United States and its allies depend on human intelligence to fight Al Qaeda. If suspected terrorists were allowed defense lawyers, they might never say anything.

“The first thing we tell our clients is tes toit: keep your mouth shut because it can’t do you any good,” she says. “So if you get a lawyer for a battlefield detainee – even if one is available in northern Afghanistan – what you will do then is not have any information on where the adversary is deployed.”

But Elisa Massimino, director of the Washington office of the Lawyers Committee for Human Rights, worries that by not respecting the rule of law in the United States, the Bush Administration undermines respect for the rule of law in other countries.

“We need to have some system that projects to the rest of the world that the rule of law system is a matter of right and not a matter of grace,” she says. She cites the case of Maher Arar, a Canadian citizen detained in September 2002 at J.F.K. airport in New York by U.S. officials before being handed over to Syrian authorities for questioning. Now back in Canada, Mr. Arar says he was tortured over a ten-month period in Syria before Canadian consular officials secured his release.

“We run the risk of squandering one of our strongest assets in fighting the war on terrorism internationally,” she says, “and that is the ability to project American values, democratic values and human rights internationally.”

Legal observers expect most of the cases involving civil liberties and the war on terror to end up before the U.S. Supreme Court. In November, the nation’s highest court said it would rule on whether non-U.S. citizens held at Guantanamo Bay, Cuba should have access to American courts. A 1950 Supreme Court decision established that foreign nationals held abroad had no such rights. A ruling on this first case arising from the government’s anti-terrorism campaign following the September 11 attacks is expected in 2004.