By Jonathan Turley
Jonathan Turley is a professor of constitutional law at George Washington University. Los Angeles Times
Wednesday, 14 August, 2002
Atty. Gen. John Ashcroft's announced desire for camps for U.S. citizens he deems to be "enemy combatants" has moved him from merely being a political embarrassment to being a constitutional menace.
Ashcroft's plan, disclosed last week but little publicized, would allow him to order the indefinite incarceration of U.S. citizens and summarily strip them of their constitutional rights and access to the courts by declaring them enemy combatants.
The proposed camp plan should trigger immediate congressional hearings and reconsideration of Ashcroft's fitness for this important office. Whereas Al Qaeda is a threat to the lives of our citizens, Ashcroft has become a clear and present threat to our liberties.
The camp plan was forged at an optimistic time for Ashcroft's small inner circle, which has been carefully watching two test cases to see whether this vision could become a reality. The cases of Jose Padilla and Yaser Esam Hamdi will determine whether U.S. citizens can be held without charges and subject to the arbitrary and unchecked authority of the government.
Hamdi has been held without charge even though the facts of his case are virtually identical to those in the case of John Walker Lindh. Both Hamdi and Lindh were captured in Afghanistan as foot soldiers in Taliban units. Yet Lindh was given a lawyer and a trial, while Hamdi rots in a floating Navy brig in Norfolk, Va.
This week, the government refused to comply with a federal judge who ordered that he be given the underlying evidence justifying Hamdi's treatment. The Justice Department has insisted that the judge must simply accept its declaration and cannot interfere with the president's absolute authority in "a time of war."
In Padilla's case, Ashcroft initially claimed that the arrest stopped a plan to detonate a radioactive bomb in New York or Washington, D.C. The administration later issued an embarrassing correction that there was no evidence Padilla was on such a mission. What is clear is that Padilla is an American citizen and was arrested in the United States--two facts that should trigger the full application of constitutional rights.
Ashcroft hopes to use his self-made "enemy combatant" stamp for any citizen whom he deems to be part of a wider terrorist conspiracy.
Perhaps because of his discredited claims of preventing radiological terrorism, aides have indicated that a "high-level committee" will recommend which citizens are to be stripped of their constitutional rights and sent to Ashcroft's new camps.
Few would have imagined any attorney general seeking to reestablish such camps for citizens. Of course, Ashcroft is not considering camps on the order of the internment camps used to incarcerate Japanese American citizens in World War II. But he can be credited only with thinking smaller; we have learned from painful experience that unchecked authority, once tasted, easily becomes insatiable.
We are only now getting a full vision of Ashcroft's America. Some of his predecessors dreamed of creating a great society or a nation unfettered by racism. Ashcroft seems to dream of a country secured from itself, neatly contained and controlled by his judgment of loyalty.
For more than 200 years, security and liberty have been viewed as coexistent values. Ashcroft and his aides appear to view this relationship as lineal, where security must precede liberty.
Since the nation will never be entirely safe from terrorism, liberty has become a mere rhetorical justification for increased security.
Ashcroft is a catalyst for constitutional devolution, encouraging citizens to accept autocratic rule as their only way of avoiding massive terrorist attacks.
His greatest problem has been preserving a level of panic and fear that would induce a free people to surrender the rights so dearly won by their ancestors.
In "A Man for All Seasons," Sir Thomas More was confronted by a young lawyer, Will Roper, who sought his daughter's hand. Roper proclaimed that he would cut down every law in England to get after the devil.
More's response seems almost tailored for Ashcroft: "And when the last law was down and the devil turned round on you, where would you hide, Roper, the laws all being flat? ... This country's planted thick with laws from coast to coast ... and if you cut them down--and you are just the man to do it--do you really think you could stand upright in the winds that would blow then?"
Every generation has had Ropers and Ashcrofts who view our laws and traditions as mere obstructions rather than protections in times of peril. But before we allow Ashcroft to denude our own constitutional landscape, we must take a stand and have the courage to say, "Enough."
Every generation has its test of principle in which people of good faith can no longer remain silent in the face of authoritarian ambition. If we cannot join together to fight the abomination of American camps, we have already lost what we are defending.
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Jonathan Turley is a professor of constitutional and public-interest law at George Washington University Law School in D.C. He is also a defense attorney in national security cases and other matters, writes for a number of publications, and is often on television. He and I occasionally exchange leads on civil liberties stories, but I learn much more from him than he does from me.
For example, a Jonathan Turley column in the national edition of the August 14 Los Angeles Times ("Camps for Citizens: Ashcroft's Hellish Vision") begins:
"Attorney General John Ashcroft's announced desire for camps for U.S. citizens he deems to be 'enemy combatants' has moved him from merely being a political embarrassment to being a constitutional menace." Actually, ever since General Ashcroft pushed the U.S. Patriot Act through an overwhelmingly supine Congress soon after September 11, he has subverted more elements of the Bill of Rights than any attorney general in American history.
Under the Justice Department's new definition of "enemy combatant"—which won the enthusiastic approval of the president and Defense Secretary Donald Rumsfeld—anyone defined as an "enemy combatant," very much including American citizens, can be held indefinitely by the government, without charges, a hearing, or a lawyer. In short, incommunicado.
Two American citizens—Yaser Esam Hamdi and Jose Padilla—are currently locked up in military brigs as "enemy combatants." (Hamdi is in solitary in a windowless room.) As Harvard Law Professor Lawrence Tribe said on ABC's Nightline (August 12):
"It bothers me that the executive branch is taking the amazing position that just on the president's say-so, any American citizen can be picked up, not just in Afghanistan, but at O'Hare Airport or on the streets of any city in this country, and locked up without access to a lawyer or court just because the government says he's connected somehow with the Taliban or Al Qaeda. That's not the American way. It's not the constitutional way. . . . And no court can even figure out whether we've got the wrong guy."
In Hamdi's case, the government claims it can hold him for interrogation in a floating navy brig off Norfolk, Virginia, as long as it needs to. When Federal District Judge Robert Doumar asked the man from the Justice Department how long Hamdi is going to be locked up without charges, the government lawyer said he couldn't answer that question. The Bush administration claims the judiciary has no right to even interfere.
Now more Americans are also going to be dispossessed of every fundamental legal right in our system of justice and put into camps. Jonathan Turley reports that Justice Department aides to General Ashcroft "have indicated that a 'high-level committee' will recommend which citizens are to be stripped of their constitutional rights and sent to Ashcroft's new camps."
It should be noted that Turley, who tries hard to respect due process, even in unpalatable situations, publicly defended Ashcroft during the latter's turbulent nomination battle, which is more than I did.
Again, in his Los Angeles Times column, Turley tries to be fair: "Of course Ashcroft is not considering camps on the order of the internment camps used to incarcerate Japanese American citizens in World War II. But he can be credited only with thinking smaller; we have learned from painful experience that unchecked authority, once tasted, easily becomes insatiable." (Emphasis added.)
Turley insists that "the proposed camp plan should trigger immediate Congressional hearings and reconsideration of Ashcroft's fitness for important office. Whereas Al Qaeda is a threat to the lives of our citizens, Ashcroft has become a clear and present threat to our liberties." (Emphasis added.)
On August 8, The Wall Street Journal, which much admires Ashcroft on its editorial pages, reported that "the Goose Creek, South Carolina, facility that houses [Jose] Padilla—mostly empty since it was designated in January to hold foreigners captured in the U.S. and facing military tribunals—now has a special wing that could be used to jail about 20 U.S. citizens if the government were to deem them enemy combatants, a senior administration official said." The Justice Department has told Turley that it has not denied this story. And space can be found in military installations for more "enemy combatants."
But once the camps are operating, can General Ashcroft be restrained from detaining—not in these special camps, but in regular lockups—any American investigated under suspicion of domestic terrorism under the new, elastic FBI guidelines for criminal investigations? From page three of these Ashcroft terrorism FBI guidelines:
"The nature of the conduct engaged in by a [terrorist] enterprise will justify an inference that the standard [for opening a criminal justice investigation] is satisfied, even if there are no known statements by participants that advocate or indicate planning for violence or other prohibited acts." (Emphasis added.) That conduct can be simply "intimidating" the government, according to the USA Patriot Act.
The new Steven Spielberg-Tom Cruise movie, Minority Report, shows the government, some years hence, imprisoning "pre-criminals" before they engage in, or even think of, terrorism. That may not be just fiction, folks.
Returning to General Ashcroft's plans for American enemy combatants, an August 8 New York Times editorial—written before those plans were revealed—said: "The Bush administration seems to believe, on no good legal authority, that if it calls citizens combatants in the war on terrorism, it can imprison them indefinitely and deprive them of lawyers. This defiance of the courts repudiates two centuries of constitutional law and undermines the very freedoms that President Bush says he is defending in the struggle against terrorism."
Meanwhile, as the camps are being prepared, the braying Terry McAuliffe and the pack of Democratic presidential aspirants are campaigning on corporate crime, with no reference to the constitutional crimes being committed by Bush and Ashcroft. As Supreme Court Justice Louis Brandeis prophesied: "The greatest menace to freedom is an inert people." And an inert Democratic leadership. See you in a month, if I'm not an Ashcroft camper.