IT IS NOW a virtually unquestioned assumption of American elite conversation that the law enforcement measures George W. Bush has adopted in the aftermath of September 11 make him, as the New York Times matter-of-factly reports, "only the latest of many presidents to restrict civil liberties in wartime."
There is apocalyptic indignation about this development at the Times editorial page, which excoriates Bush for a "travesty of justice" and a "breathtaking departure" from legal tradition. There is bipartisan grumbling over executive branch unilateralism among legislators on Capitol Hill. On the other hand, leading constitutional lawyers--Laurence Tribe on the "left" and Kenneth Starr on the "right," for example--have generally voiced approval of the administration's moves, citing certain real-world exigencies. And then there is Judge Richard A. Posner of the Seventh U.S. Circuit Court of Appeals, eager as ever to pee on the shoes of civics-class pietism. "It stands to reason that our civil liberties will be curtailed" during national emergencies, Posner snorts in the December Atlantic. "They should be curtailed." Except, the judge adds, with respect to the private enjoyment of heroin and cocaine, which should be decriminalized posthaste (the better, perhaps, to subdue domestic dissent).
So in one sense, reaction is obviously mixed. But at the same time there is something strikingly consistent about most of the commentary so far: its near-total unconcern for substantive detail. Practically everyone is weighing in on the question whether we should be alarmed or relieved that the president has suspended legal protections ordinarily taken for granted in the United States. But hardly a one of them bothers to demonstrate with any precision that the president has, in fact, done anything of the kind. Bush's most splenetic critics, in particular, apparently deem a mere recitation of recent Department of Justice initiatives sufficient to establish that those initiatives have emasculated the Bill of Rights.
This is quite weird, really. Anyone with an average IQ and an Internet connection can perform the kind of legal research necessary to reach a minimally creditable judgment about the constitutional character of the Bush administration's anti-terrorism campaign. But a job like this takes more time and mental effort than most of us prefer to expend. So we have come to depend on professional journalists and politicians to do the bulk of it for us. Which is fine--as long as they're actually doing it. Say, in the ordinary course of events, that the punditburo reports the president of the United States has lately "assumed...dictatorial powers" (syndicated columnist William Safire, November 15). We would like to think that any such conclusion was based on a more than passing familiarity with the relevant statutes and regulations and Supreme Court precedents, wouldn't we? And we should therefore expect to find some evidence to that effect in the work of our designated opinionmakers, shouldn't we?
But we don't. Instead we find this, and it is altogether bizarre: George W. Bush is nowadays everywhere and constantly criticized for anti-terrorism "decrees" that allegedly disdain the standard procedural guarantees of American law--by people who themselves disdain to explain, or simply don't know, exactly what those guarantees might be.
For instance. Just this past June, the Supreme Court decided a case called Zadvydas v. Davis involving, among other things, the extent to which the Fifth Amendment limits the federal government's authority to incarcerate aliens it is attempting to deport. Here the Court was sharply divided, and its narrow holding was logically problematic, to say the least: In certain limited circumstances, the majority appeared to rule, a criminal alien whose presence in the United States is otherwise and completely illegal still enjoys a constitutional right to be set free on our streets. Nevertheless, despite the peculiarity of its bottom-line reasoning, much of the Zadvydas decision remains directly applicable to the current controversy over whether the Bush presidency has become a tyranny.
Over the past two and a half months, since the World Trade Center and Pentagon atrocities, John Ashcroft's Justice Department has "subjected" more than 1,000 foreign nationals temporarily resident in the United States, most all of them of Arab descent or Muslim faith, to "summary," "secret," and "indefinite" detention--"beyond review" by the federal courts. The program so characterized has been widely and bitterly condemned as unconstitutional. Richard Cohen of the Washington Post informs us that the detentions are so outlandishly unconstitutional, in fact, as to constitute an "American gulag."
Yes, well. How can he be so sure, one wonders? As a jurisprudential matter, any respectable pronouncement on the constitutionality of the Bush/Ashcroft "gulag" must take extensive account of the Supreme Court's most recent refinement of the due process rights implicated by alien detentions, you would think. And yet never in his column has Richard Cohen so much as alluded to the existence of the ruling in Zadvydas. Nor can he have learned about Zadvydas's suddenly renewed relevance from the work of his colleagues, for not once since September 11 has the Washington Post--or any other major American newspaper, such is modern journalism's chronic, shocking ignorance of the law--mentioned a single word about that case.
In other words, dear reader, your morning daily has proved a useless guide to precisely that awful question it has helped make current: Have the president and his attorney general violated their oaths of office by mounting a clear and powerful assault on our founding document?
For a start toward the real answer, perhaps we should provide a little update on Sami Al-Arian, the University of South Florida computer engineering professor whom we have met before in these pages. Al-Arian is a piece of work: a man who in the past has played host or even employer--right there in the Tampa/St. Pete metropolitan area--to a number of notorious international terrorists and their equally notorious propagandists and sympathizers. Al-Arian appears ill-disposed towards Jewish people; in February 1995, ten days after two young Arab zombies had blown themselves up at an Israeli bus stop, killing 22 people and injuring 59 others, Al-Arian wrote a fund-raising letter exulting in the deed and requesting "support to the jihad effort in Palestine so that operations such as these can continue." Al-Arian appears similarly ill-disposed toward Americans, even those who aren't Jewish. "Let us damn America" and its allies "until death" he has been heard to proclaim, at one of the many jihadist pep rallies he has sponsored since arriving in the states more than a decade ago.
Federal authorities have been keenly aware of Sami Al-Arian since the mid 1990s. The FBI and INS, in particular, seem soon thereafter to have concluded that he was the Palestinian Islamic Jihad's principal representative in North America. But so habitually cautious about the law is our Justice Department that Al-Arian has never been charged with a crime. Nor has he ever been targeted for deportation. Nor--even now, while the government is said to be rounding up every Arab or Muslim fellow it can get its hands on--has Al-Arian even been detained. Quite the contrary; he is currently free as a bird, and the subject of an incredibly stupid profile in the Los Angeles Times, which thinks we should know that Sami Al-Arian "wears Hush Puppies and resembles Mahatma Gandhi."
Interestingly enough, it is none other than Al-Arian's brother-in-law and full partner in the promotion of political violence, one Mazen Al-Najjar, whom critics of the Justice Department's "anti-Arab witchhunt" are quickest to cite as a sympathetic victim. Sympathy for Al-Najjar seems less appropriate the more you know about him, however. And properly understood, the extensive litigation his case has spawned tends to rebut, rather than reinforce, the "civil libertarian" complaint routinely made on behalf of Arab and Muslim aliens detained by the INS in conjunction with past and current terrorism investigations. The notion that the Justice Department has subjected Mazen Al-Najjar to arbitrary, harsh, and constitutionally irregular treatment is preposterous. For the moment, at least, pending his latest appeal, Al-Najjar, too, like his brother-in-law, walks the streets of Tampa, Florida, a free man. But for the government's determination that he is a very dangerous man--were he an "ordinary" subject of American immigration law, that is--Al-Najjar would almost certainly have been expelled from our shores, without the slightest fuss, a very long time ago.
Al-Najjar, a Palestinian native of Gaza, arrived in the United States from the United Arab Emirates in 1981. Having entered the country with "refugee" status, he then secured permission from the INS to attend a graduate school program in North Carolina. But by the spring of 1985, having failed to secure a green card by virtue of a quickie, abortive marriage to an American citizen and no longer carrying a valid student visa, Al-Najjar was "noted" by the INS for thus-obligatory deportation proceedings. Which he has been fighting ever since, though he has all along acknowledged that his presence within our borders is unlawful.
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