The Magazine

Is the President a "Dictator"?

Dec 3, 2001, Vol. 7, No. 12 • By DAVID TELL, FOR THE EDITORS
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

His lawyers' arguments are a small masterpiece of Kafkaesque black comedy. Al-Najjar moved to Tampa in 1986, where he began a lengthy and intimate professional collaboration with Sami Al-Arian in the development of a hate-spewing "Islamic think tank" and affiliated "charity." By virtue of his participation in these apparent terrorist front groups, Al-Najjar was arrested in 1997 by FBI and INS agents who had collected what more than one reviewing court has since called "pertinent and reliable" evidence that he is an active associate of the Palestinian Islamic Jihad--and so represents an ongoing threat to the people, property, and national security of the United States. And?

And precisely because the federal government has adjudged him a terrorist, Al-Najjar's attorneys contend, it must now grant him political asylum here; few foreign countries would even consider accepting extradition of such a character, and any that might would very likely persecute him. We can't have that. Nor, the argument continues, can we keep him in detention. The Justice Department's conclusion that Al-Najjar is a fanatic is based on highly sensitive foreign intelligence information that it dare not reveal in open court, so he is unable effectively to defend himself against the charge--which he claims an inviolable Fifth Amendment right to do.

Mazen Al-Najjar's asylum demand is transparently ridiculous. And Mazen Al-Najjar's Fifth Amendment argument, though it appears to strike an emotional chord among constitutional naifs, is ridiculous, as well. There is Supreme Court precedent that is directly on point here. In February 1999, deciding a case called Reno v. Arab-American Anti-Discrimination Committee, an 8-1 majority of the Court ruled that "when an alien's continuing presence in this country is in violation of the immigration laws, the government does not offend the Constitution by deporting [or detaining] him for the additional reason that it believes him to be a member of an organization that supports terrorist activity." Moreover, "[t]he Executive should not have to disclose its 'real' reasons" for reaching that conclusion, since "a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy."

This was the law for more than two years before George W. Bush became president. And it is the same law, unamended, that he is both enforcing and obeying in connection with the Justice Department's post-September 11 detentions of certain Arab and Muslim aliens holding non-immigrant student, tourist, or employment visas. All the detainees have enjoyed the right to counsel, as has Mazen Al-Najjar. All have been guaranteed habeas corpus review in the federal courts, as has Mazen Al-Najjar. And most have already been released from detention, as has Mazen Al-Najjar. A small number are being held on material witness warrants, their case records sealed--by a U.S. District Court judge, as federal grand jury rules require. And the few hundred remaining detainees are being held for immigration or other criminal violations. They are thus presumptively deportable. And during the pendancy of deportation proceedings--back to Zadvydas again--the government may detain any illegal alien at its discretion.

How, then, with respect to these detentions, is it fair to say that President Bush has restricted previously existing civil liberties? It is not fair to say so. It is false. In fact, the entire parade of constitutional horribles alleged against the administration is a groundless slander, as we will no doubt have occasion to explain in exhaustive detail over the coming weeks. Put simply, the people currently accusing the president of "dictatorship" do not know what they're talking about. That they are eager to talk anyway; that they are prepared to entertain a dystopian fantasy about their democratic government; that they are willing to "spell it with a K," as we used to say back in the 1960s . . . well, that is a question we would prefer to leave to the psychiatrists.

--David Tell, for the Editors

December 3, 2001 - Volume 7, Number 12