You Have The Right To Be Silenced
- Any Citizen Designated a 'Combatant' Loses Legal Protections Like 'Due
"....deprived of life, liberty or property, without DUE PROCESS....." US
Bill of Rights Amnd V
See also the rest of the US Constitution and its Bill of Rights at
Do you trust govt to just 'designate' that any citizen can just be taken
away and silenced?
Terror Investigations Have Two Legal Tracks
The Bush administration is developing a parallel legal system for terrorism
suspects that lacks usual legal protections, lawyers inside and outside the
By Charles Lane
Washington Post Staff Writer
Sunday, December 1, 2002; Page A01
The Bush administration is developing a parallel legal system in which
terrorism suspects -- U.S. citizens and noncitizens alike -- may be
investigated, jailed, interrogated, tried and punished without legal
protections guaranteed by the ordinary system, lawyers inside and outside
the government say.
The elements of this new system are already familiar from President Bush's
orders and his aides' policy statements and legal briefs: indefinite
military detention for those designated "enemy combatants," liberal use of
"material witness" warrants, counterintelligence-style wiretaps and
searches led by law enforcement officials and, for noncitizens, trial by
military commissions or deportation after strictly closed hearings.
Only now, however, is it becoming clear how these elements could ultimately
For example, under authority it already has or is asserting in court cases,
the administration, with approval of the special Foreign Intelligence
Surveillance Court, could order a clandestine search of a U.S. citizen's
home and, based on the information gathered, secretly declare the citizen
an enemy combatant, to be held indefinitely at a U.S. military base. Courts
would have very limited authority to second-guess the detention, to the
extent that they were aware of it.
Administration officials, noting that they have chosen to prosecute
suspected Taliban member John Walker Lindh, "shoe bomber" Richard Reid and
alleged Sept. 11 conspirator Zacarias Moussaoui in ordinary federal courts,
say the parallel system is meant to be used selectively, as a complement to
conventional processes, not as a substitute. But, they say, the parallel
system is necessary because terrorism is a form of war as well as a form of
crime, and it must not only be punished after incidents occur, but also
prevented and disrupted through the gathering of timely intelligence.
"I wouldn't call it an alternative system," said an administration official
who has helped devise the legal response to the terrorist attacks of Sept.
11, 2001. "But it is different than the criminal procedure system we all
know and love. It's a separate track for people we catch in the war."
At least one American has been shifted from the ordinary legal system into
the parallel one: alleged al Qaeda "dirty bomb" plotter Jose Padilla, who
is being held at a Navy brig, without the right to communicate with a
lawyer or anyone else. U.S. officials have told the courts that they can
detain and interrogate him until the executive branch declares an end to
the war against terrorism.
The final outlines of this parallel system will be known only after the
courts, including probably the Supreme Court, have settled a variety of
issues being litigated. But the prospect of such a system has triggered a
Civil libertarians accuse the Bush administration of an executive-branch
power grab that will erode the rights and freedoms that terrorists are
trying to destroy -- and that were enhanced only recently in response to
abuses during the civil rights era, Vietnam and Watergate.
"They are trying to embed in law a vast expansion of executive authority
with no judicial oversight in the name of national security," said Kate
Martin, director of the Center for National Security Studies, a
Washington-based nonprofit group that has challenged the administration
approach in court. "This is more tied to statutory legal authority than J.
Edgar Hoover's political spying, but that may make it more dangerous. You
could have the law serving as a vehicle for all kinds of abuses."
Administration officials say that they are acting under ample legal
authority derived from statutes, court decisions and wartime powers that
the president possesses as commander in chief under the Constitution.
"When you have a long period of time when you're not engaged in a war,
people tend to forget, or put in backs of their minds, the necessity for
certain types of government action used when we are in danger, when we are
facing eyeball to eyeball a serious threat," Solicitor General Theodore B.
Olson, who leads the administration's anti-terrorism legal team in the
federal courts, said in an interview.
Broadly speaking, the debate between the administration and its critics is
not so much about the methods the government seeks to employ as it is about
who should act as a check against potential abuses.
Civil libertarians insist that the courts should searchingly review Bush's
actions, so that he is always held accountable to an independent branch of
government. Administration officials, however, imply that the main check on
the president's performance in wartime is political -- that if the public
perceives his approach to terrorism is excessive or ineffective, it will
vote him out of office.
"At the end of the day in our constitutional system, someone will have to
decide whether that [decision to designate someone an enemy combatant] is a
right or just decision," Olson said. "Who will finally decide that? Will it
be a judge, or will it be the president of the United States, elected by
the people, specifically to perform that function, with the capacity to
have the information at his disposal with the assistance of those who work
Probably the most hotly disputed element of the administration's approach
is its contention that the president alone can designate individuals,
including U.S. citizens, as enemy combatants, who can be detained with no
access to lawyers or family members unless and until the president
determines, in effect, that hostilities between the United States and that
individual have ended.
Padilla was held as a material witness for a month after his May 8 arrest
in Chicago before he was designated an enemy combatant. He is one of two
U.S. citizens being held as enemy combatants at the Navy brig in
Charleston, S.C. The other is Yaser Esam Hamdi, a Saudi Taliban fighter who
was captured by American troops in Afghanistan and sent to the U.S. prison
at Guantanamo Bay, Cuba, until it was discovered that he was born in
Attorneys are challenging their detentions in federal court. While civil
libertarians concede that the executive branch has well-established
authority to name and confine members of enemy forces during wartime, they
maintain that it is unconstitutional to subject U.S. citizens to indefinite
confinement on little more than the president's declaration, especially
given the inherently open-ended nature of an unconventional war against
"The notion that the executive branch can decide by itself that an American
citizen can be put in a military camp, incommunicado, is frightening," said
Morton H. Halperin, director of the Washington office of the Open Society
Institute. "They're entitled to hold him on the grounds that he is in fact
at war with the U.S., but there has to be an opportunity for him to contest
However, the Bush administration, citing two World War II-era cases -- the
Supreme Court's ruling upholding a military commission trial for a captured
American-citizen Nazi saboteur, and a later federal appeals court decision
upholding the imprisonment of an Italian American caught as a member of
Italian forces in Europe -- says there is ample precedent for what it is
Courts traditionally understand that they must defer to the executive's
greater expertise and capability when it comes to looking at such facts and
making such judgments in time of war, Bush officials said. At most, courts
have only the power to review legal claims brought on behalf of detainees,
such as whether there is indeed a state of conflict between the United
States and the detainee.
In a recent legal brief, Olson argued that the detention of people such as
Hamdi or Padilla as enemy combatants is "critical to gathering intelligence
in connection with the overall war effort."
Nor is there any requirement that the executive branch spell out its
criteria for determining who qualifies as an enemy combatant, Olson argues.
"There won't be 10 rules that trigger this or 10 rules that end this,"
Olson said in the interview. "There will be judgments and instincts and
evaluations and implementations that have to be made by the executive that
are probably going to be different from day to day, depending on the
The federal courts have yet to deliver a definitive judgment on the
question. A federal district judge in Virginia, Robert G. Doumar, was
sharply critical of the administration, insisting that Hamdi be permitted
to consult an attorney. But he was partially overruled by the U.S. Court of
Appeals for the 4th Circuit, based in Richmond.
The 4th Circuit, however, said the administration's assertion that courts
should have absolutely no role in examining the facts leading to an enemy
combatant designation was "sweeping." A decision from that court is pending
as to how much of a role a court could claim, if any. The matter could well
have to be settled in the Supreme Court.
The administration scored a victory recently when the U.S. Foreign
Intelligence Surveillance Court of Review ruled 3 to 0 that the USA Patriot
Act, passed by Congress shortly after the Sept. 11 terrorist attacks, gives
the Justice Department authority to break down what had come to be known as
"the wall" separating criminal investigations from investigations of
The ruling endorsed the administration's view that law enforcement goals
should be allowed to drive Justice Department requests for special
eavesdropping and search warrants that had been thought to be reserved for
counterintelligence operations. But the court went further, agreeing with
the administration that "the wall" itself had no real basis in pre-Patriot
Act law. Instead, the court ruled, "the wall" was a product of internal
Justice Department guidelines that were, in turn, based partly on erroneous
interpretations of the law by some courts.
There is no clear line between intelligence and crime in any case, the
court said, because any investigation of a spy ring could ultimately lead
to charging U.S. citizens with crimes such as espionage.
The decision overruled an earlier one by the lower-level Foreign
Intelligence Surveillance Court, in which seven judges sharply criticized
past Justice Department misstatements in applications for permission to do
Administration officials say that the ruling permits what is only
sensible -- greater sharing of information between federal prosecutors and
federal counterintelligence officials.
Thanks to enforcement of "the wall" by FBI lawyers, they note, pre-Sept. 11
permission to search Moussaoui's computer was not sought, a crucial missed
opportunity to prevent the attacks.
In practical terms, the ruling means that the attorney general would still
have to convince the Foreign Intelligence Surveillance Court that he has
probable cause to believe that a given subject of a wiretap or search is an
agent of a foreign terrorist group, a standard that is not dissimilar to
the one required for warrants in ordinary criminal cases.
Yet civil libertarians say that targets of such investigations who end up
being ordered out of the country or prosecuted would lose a crucial right
that they would have in the ordinary criminal justice system -- the right
to examine the government's evidence justifying the initial warrant.
"So the government starts off using secret surveillance information not to
gather information upon which to make policy, but to imprison or deport an
individual, and then it never gives the individual a fair chance to see if
the surveillance was lawful," Martin said.
© 2002 The Washington Post Company
Terry Liberty Parker
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