Thomas Ginsberg
Twenty-one months after the 9/11 attacks.....
Thu Jun 19 20:44:59 2003
208.152.73.8

Posted on Sun, Jun. 15, 2003 story:PUB_DESC
The War on ... Liberty?
In the name of post-9/11 security, civil rights have been eroded. Some now think that the United States has gone too far in fighting terror.
By Thomas Ginsberg
Inquirer Staff Writer - James F. Quinn / Chicago Tribune
http://www.philly.com/mld/philly/6089316.htm

Twenty-one months after the 9/11 attacks, civil liberties have become a battle in the U.S. war on terrorism.

Saying American streets have become "a war zone," Attorney General John Ashcroft has vowed to use "every legal means to detect, disrupt, and dismantle terrorist networks here and abroad before they strike."

But limits on information and immigration, and curbs on certain people's due process and privacy, are proving to be part of the war's collateral damage.

Has the government gone too far? Or are some ideals worth curtailing?

Two weeks ago, the Justice Department's inspector general said the FBI bent rules in detaining hundreds of people with no connection to terrorism, held them too long, and let many be mistreated.

The Justice Department, in response, hinted last week that it may rein in the FBI. At the same time, Ashcroft asked Congress for greater authority to indefinitely detain and charge suspected supporters of terrorism - including U.S. citizens.

The new powers would buttress existing ones, such as immigration laws, and the 2001 Patriot Act, which Ashcroft has called essential to preventing further attacks.

While a majority of Americans in recent polls expressed concerns about civil liberties, even more have confidence in the administration's ability to protect the country from terrorism.

But to civil libertarians, immigration advocates and many others, the administration may be dismantling civil rights ostensibly to save them. Even some government officials are worried. In a secret meeting of top Justice Department officials hours after the attacks, then-immigration chief James Ziglar rebuked those in the room for proposing a "roundup" of Arabs and Muslims.

"I'm not going to be part of this if we're going to do things that blatantly violate the law," Ziglar declared, according to people there.

Ever since, government actions have elicited both anger and praise. Here is a synopsis:

'Ashcroft doctrine'

"John, you just have to make sure this doesn't happen again," Bush said just after the attack, according to Ashcroft's oft-repeated recollection.

The Attorney General's Office quickly enunciated a strategy predicated on prevention of terrorism, not after-the-fact prosecution, as the only way to thwart more attacks. Some call it the "Ashcroft doctrine."

Prevention inverts the traditional law-enforcement process. It requires action before a crime occurs, which means no victims, little direct evidence, and a search for conspirators rather than perpetrators.

Ashcroft credits his approach for the fact that there has been no major attack on U.S. soil since Sept. 11, 2001.

But the nonpartisan Lawyers Committee for Human Rights concludes: "U.S. core values are being undermined by aggressive executive branch actions that are usurping the constitutional powers of the courts and Congress."

Search, seize and spy

Last July, Mukhtar Al-Bakri, 22, sent this personal e-mail from Bahrain to New York, allegedly referring to a terrorist attack:

"The next meal will be very huge. No one will be able to withstand it except those who have faith."

Before 9/11, prosecutors might not have gotten the e-mail. But under the Patriot Act, they were able to get it from interrogators in Bahrain and use it along with other evidence to win guilty pleas from six immigrants in Buffalo for training in an al-Qaeda camp.

It's one example of broadened federal power to obtain private communications, business and library records, financial data and classified intelligence, often in secret, with only the approval of the Foreign Intelligence Surveillance Court.

The government says such powers as essential to catching people before they act.

"Libraries and bookstores," said Assistant Attorney General Viet Dinh, "should not be allowed to become safe havens for terrorists."

Critics blast the invasive powers. Gag orders to prevent people from learning that their records or property were searched have been issued or extended nearly 300 times since 9/11. FBI agents have covertly attended mosques looking for leads.

U.S. officials say that judges still have to approve warrants based on evidence, not just to target somebody checking out the Koran and some gun books.

Terrorists or criminals?

Among its victories, the government has won terrorism confessions from six Buffalo men, put away American Taliban John Walker Lindh and shoe bomber Richard Reid, and won two terrorism convictions in Detroit.

In the process, the government also has labeled hundreds of others as "terrorists" or "unlawful combatants" who before 9/11 would have been treated as common criminals, illegal immigrants or enemy soldiers.

Last year, 60 Middle Eastern students were convicted of cheating on college English-equivalency tests. The Justice Department counted them among 174 "international terrorism" cases. In January, the General Accounting Office said three-fourths of these were in fact nonterrorism convictions. The department ordered better reporting, but mislabeling continued, The Inquirer has found.

This month, the inspector general said FBI agents had misclassified many illegal immigrants as "special-interest" suspects. The mistakes had "significant ramifications" for their treatment. Ashcroft responded by promising to clear innocent people quicker "if, God forbid, we ever have to do this again."

Last year, the Pentagon tagged hundreds of fighters captured in Afghanistan as "unlawful" or "enemy" combatants and jailed them at Guantanamo Bay, Cuba. The label and foreign location let the Pentagon hold the men indefinitely, question them without a lawyer, and skirt international scrutiny on POW treatment.

Several courts have upheld the designations. One federal judge has ordered the government to let U.S. citizen Jose Padilla, who has been called the "dirty bomber," challenge his "enemy combatant" label.

Public access and activity

A month after 9/11, to clamp down on sensitive information that might be used by terrorists, Ashcroft flipped the government's policy on Freedom of Information Act requests. He told agencies that all they needed was a "reasonable basis" for denying requests. Since then:

The Bush administration has been hit with many freedom-of-information lawsuits, including one demanding it describe all "domestic spying."

New Jersey newspapers sued, in vain, to make the Justice Department disclose identities of post-9/11 detainees.

More people, according to isolated reports, have been stopped and questioned for photographing or approaching critical facilities such as bridges and power plants.

Several regulatory agencies have removed information from Web sites about power or chemical plants.

The Pennsylvania-American Water Co. recently got approval to keep secret its rate increase to cover security costs. It said it didn't want terrorists - let alone rate-payers - knowing its weaknesses.

A smaller haystack

Ten days after 9/11, Mohamed Rifaey, 31, made the mistake of arguing with his wife in public. Police were called, he was jailed, put in solitary, interrogated, and booted out.

Before 9/11, the Egyptian - an undocumented immigrant working in South Jersey - might have made bail and stayed.

After 9/11, he got caught in a web of unforgiving rules designed, in one critic's words, "to make the haystack smaller" for investigators.

The Justice Department retooled several immigration-enforcement programs to focus on Muslims and Arabs, targeting them for fingerprinting and monitoring. Hundreds spent weeks in jail, unable to go home or stay in America. Government lawyers routinely challenged judges wanting to release them and won court approval to hold some indefinitely.

The effort resulted in roughly 5,000 detentions and deportations, mostly Arab or Muslim undocumented immigrants, says Georgetown University law professor David Cole. The number of those charged with terrorism-related crimes so far: about a dozen.

Barbara Comstock, a Justice Department spokeswoman, said many detained foreigners were guilty of something even if officials couldn't prove it.

"Sometimes when you have a national security concern, you just get them out anyway," she said.

Material witnesses

The Justice Department held Maher "Mike" Hawash, 39, of Portland, Ore., for 40 days as a "witness" before charging the American for alleged involvement in a terrorist cell.

The idea behind the material-witness law is to hold key witnesses who might otherwise flee, but critics say the government has been abusing it.

"They didn't want him as a witness. They wanted him as a defendant, and that's not a proper use of the material-witness statute," said David Rudovsky, a Philadelphia civil rights lawyer.

In April, the FBI in Indiana publicly apologized to eight men held as material witnesses for the "humiliation" caused by their detention.

The Justice Department has defended its procedures and said it has held fewer than 50 such witnesses.

Checking identity

Many of the 9/11 hijackers had lived, worked, and even boarded jetliners using driver's licenses. They exposed a gap in security that federal and state officials have struggled to close.

Unable to create a uniform national ID card, officials have sought uniform state license laws. But some states, such as California, are contemplating looser rules for noncitizens so fewer will drive without insurance.

Pennsylvania and New Jersey have tightened rules. Pennsylvania is even considering a special mark denoting the driver's immigration status; civil rights groups have denounced it as a modern-day "scarlet letter."

Federal officials, meanwhile, have expanded programs to double-check Social Security numbers with employers and immigration databases.

Immigration advocates have blasted the program as an indirect crackdown on illegal immigration that leads to violation of worker rights.

Hate crimes

Some of the same groups that accuse the Justice Department of trampling civil rights applaud it for fighting discrimination.

After 9/11, the government appointed lawyers to watch out for hate crimes against Muslims and Arabs. They have pursued about 450 cases.

Says a spokesman for the American-Arab Anti-Discrimination Committee: "There is a lot to be praised here."
Contact staff writer Thomas Ginsberg at 215-854-4177 or tginsberg@phillynews.com. Inquirer staff writers Jennifer Lin, Mark Fazlollah, Rose Ciotta and Gaiutra Bahadur contributed to this article.

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