Civil Hysteria
EDITORIAL Civil Hysteria Once there was a time, while America was at war, when our government refused to grant its captured enemies, very much including the oddball U.S. citizens among them,...
...Moussaoui is now being given every inch of the civil-court trial the Justice Department's critics think generally appropriate...
...The commonplace answer that Bush's detention policies stand on a weaker legal foundation than Roosevelt's, Goldsmith and Sunstein conclude, is "unpersuasive...
...I have many information...
...I know which group, who participated, when it was decided...
...Hamdi almost certainly is an "enemy combatant," granted...
...The Lindh case, in short, may not be the best crystal ball through which to predict what regular criminal prosecutions of al Qaeda operatives would entail...
...At this rate, precisely because he has been accorded full access to the regular federal courts, Zacarias Moussaoui, the gears of those courts grinding away in their regular fashion, is going to win himself a lethal injection—even though the case against him remains entirely circumstantial...
...We find it difficult to account for such complaints merely by reference to real-world facts...
...But it remains the case, just the same, that what Christopher is saying, drained of its exaggeration, is what plenty of people not so easy to dismiss are saying, too...
...MOUSSAOUI: I will be able to prove that I have certain knowledge of September 11, and I know exactly who done it...
...citizens among them, access to the regular criminal courts...
...And he plainly hasn't spent a nanosecond familiarizing himself with the particular legal questions at issue here...
...Instead, they argue, current editorial page denunciations of the Ashcroft Justice Department should properly be viewed as the product of a historical "ratchet effect" whereby "essential" civil liberties are conceived more expansively with every succeeding war—each conflict's specific legal "abuses," recognized as such only after armistice, being transformed into a new set of categorical taboos for the future...
...I am a member of al Qaeda...
...But very much not the way anyone has been dealt with lately here in the United States...
...Now, Warren Christopher, we freely concede, is a desiccated old prune...
...And yet, they note, at least "within elite circles," Bush's relatively mild prisoner-of-war policies have been met with outright horror, where Roosevelt's positively authoritarian ones were enthusiastically embraced...
...Therein lies a mystery...
...News of which executions became public only after the fact...
...About the Lindh case, we would point out that its defendant, the suburban California teenager cum Wahhabi lunatic, was hardly the kind of fellow our Marines are likely to confront very often on the battlefield...
...Within days, all eight of the prisoners at issue had been tried and convicted, and six of them had been executed...
...Fresh outbreaks occur on an almost daily basis...
...And mightn't Yasser Hamdi and the other "enemy combatants" being held in military custody thus be better off where they are...
...In fact, in the Hamdi case itself, the government has already offered for judicial review a sealed submission that Chief Judge Harvie Wilkinson of the Fourth Circuit says "specifically delineates the manner in which the military assesses and screens enemy combatants to determine who among them should be brought under Department of Defense control" and further "describes how the military determined that petitioner Hamdi fit the eligibility requirements applied to enemy combatants for detention...
...BRINKEMA: Mr...
...A man would have to have a heart of stone to read the transcript of Moussaoui's rearraignment hearing last Thursday without quailing a little...
...Neat...
...Moussaoui, you have to stop, or I'll have the marshals remove you...
...He is easy to dismiss, in other words...
...The denouement of the John Walker Lindh trial, Taylor argues, clearly establishes that such a preference is misguided: Lindh was prosecuted in a regular, open court (more or less), where "weaknesses" in the prosecution's case could be and were exposed, and where things consequently worked out just about right...
...But what about others like him who might similarly fall into the Defense Department's clutches...
...Take Stuart Taylor Jr., for instance, who, week in and week out, writes as thoughtfully and well about the law, for a nonspecialist audience, as anyone in America...
...Unlike Lindh, apparently, Moussaoui really means it: He hates and mistrusts America...
...Last week, for example, at a Coronado, California, judicial conference hosted by the Ninth U.S...
...The government secured his assistance in its ongoing investigations...
...And what he says is fatuous...
...And the early results—even, or perhaps especially, from a civil libertarian perspective—do not look good...
...Zacarias Moussaoui, whom Stuart Taylor neglects to mention, is the more obvious—and disturbing—model...
...Goldsmith and Sunstein are nervous about this phenomenon...
...President Bush certainly wouldn't...
...And everybody cheered again...
...What's more, Justice Department lawyers have themselves acknowledged, by reference to Supreme Court precedents which suggest as much explicitly, that the judiciary may "call upon the executive to provide 'some evidence' supporting [enemy combatant] determination[s]"—and may also, by logical extension, invalidate such determinations if it turns out the evidence is wholly insubstantial...
...Look, he says, at Yasser Hamdi, the U.S...
...And the nation's leading newspapers and other such purveyors of advanced opinion rose up as one in reaction—and cheered...
...I, Moussaoui Zacarias, in the interests to preserve my life, enter with full conscience a plea of guilty, because I have knowledge and participated in, in al Qaeda...
...Very much the way Christopher's Argentinians "disappeared...
...No modern president would so much as dream of treating wartime detainees that way...
...Nowadays, in retrospect of course, President Roosevelt's handling of the 1942 "Nazi saboteurs" case appears rather outlandish, creepy even...
...Here Taylor is, though, in his column for the current issue of National Journal, raising his own version of the standard alarm about "dangers" inherent in the Bush administration's "preference for military detention over criminal prosecution" where alleged terrorists are concerned...
...Lindh was spared the death penalty...
...That would be the same Viet Dinh whose own father really did "disappear" into a Vietnamese reeducation camp in June 1975...
...Does the fact that it all will be "his fault" make it any less an embarrassment...
...citizen taken prisoner with his Taliban unit in Afghanistan, who is now being held—without criminal charge—in a Norfolk, Virginia, Navy brig...
...The danger," they write, "is that in an age of anthrax, nuclear suitcases, and other easy-to-conceal weapons of mass destruction, the threat posed by al Qaeda and other terrorists might warrant tradeoffs between liberty and security that are inconsistent with ordinary respect for civil liberties...
...One need not fully share this worry—about the practical effect of "ordinary" judicial procedures on America's capacity to defend itself against terrorism—to concur in Goldsmith and Sunstein's implied judgment that there's a pandemic of civil libertarian hysteria underway in certain "elite circles" just now...
...Moussaoui: I pledge bayat to Osama bin Laden...
...government as a dangerous, snarling beast...
...And why—given that the executive branch, dispassionately observed, has neither proposed nor claimed authority nor otherwise shown the slightest willingness to pursue the war on terrorism with wild, extra-legal abandon—are so many smart people among us nevertheless disposed to regard the U.S...
...This, too, the New York Times approved...
...Why is that, they ask...
...The niceties of jurisprudence," snorted the Nation (yes, the same magazine, and no, we're not making this up), "can be carried too far, and in this case the procedure was beginning to take on such overtones of fantasy that the Supreme Court's refusal to give the defendants standing in the civil courts came in the nick of time...
...Where the Justice Department has skirted the courts and incarcerated al Qaeda suspects as "enemy combatants" by "fiat," however, Taylor would have it that nothing is neat—indeed that everything we most cherish about our legal system is in peril...
...Are they to be hidden away forever, denied any chance to establish their innocence to an independent authority, in a radical "departure . . . from centuries of Anglo-American jurisprudence...
...I am guilty...
...Then the Supreme Court announced it would review the situation...
...After all, as we read the Justice Department's filings in Hamdi's ongoing habeas corpus proceedings, it simply isn't true—as nearly every editorial page would have it—that our government is claiming unilateral, absolute power to call people "enemy combatants" and lock them up for the rest of time...
...Ordinary respect for an ever growing list of civil liberties, that is to say, might "lead some to underestimate the threat we actually face...
...And the newspapers turned grumpy...
...district judge, Leonie Brinkema, vainly tries to protect his interests...
...Circuit Court of Appeals, former Secretary of State Warren Christopher told his distinguished audience—and got a nice round of applause for it, too—that Justice Department detention policies now remind him of how, "when I was in the Carter administration, I was in Argentina and I saw mothers in the streets protesting, asking for the names of those being held, those who had disappeared...
...The "enemy combatant" designation being used to justify Hamdi's detention is completely unreviewable by the federal courts, according to the government, according to Stuart Taylor...
...Then the Supreme Court reversed course, lickety-split, and said the government's detentions and planned secret trials were a-okay...
...And so he is representing himself pro se—and in the process he is committing slow-motion suicide, without even realizing it, while a talented and conscientious U.S...
...Standard procedural protocols were observed...
...Compared to past wars led by Lincoln, Wilson, and Roosevelt, the Bush administration has diminished relatively few civil liberties," suggest the University of Chicago's Jack Goldsmith and Cass Sunstein in a forthcoming analysis of the home-front "legal culture...
...How on earth does any of this constitute an outrage against American civil liberties, much less a "departure . . . from centuries of Anglo-American jurisprudence...
...David Tell, for the Editors...
...Moreoever, Lindh's sentence, rather than signaling "weaknesses" in the indictment lodged against him, looks more to us like the typical leniency-for-cooperation plea bargain of a guy who sort of wishes he could be a suburban California teenager once again...
...And so he hates and mistrusts America's courts...
...Christopher offered this spectacularly out-of-proportion analogy in direct response to a presentation by his co-panelist at the conference, Assistant Attorney General Viet Dinh...
Vol. 7 • July 2002 • No. 44
