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The secret police state
Thursday, June 19, 2003 -
For a lot of the 762 Muslims who were rounded up after 9-11 and clapped in prison without bail, denied contact with their families, kept away from their lawyers, beaten and verbally abused by their jailers and subjected to the most modern interrogation techniques by the FBI, it all must have seemed quite familiar. Because, of course, that's the way things are done back where they come from, in Saudi Arabia and Yemen and Egypt and Iraq and other places that lack the Amnesty International seal of approval. Anyone who thought the federal courts wouldn't stand for this clear violation of the Bill of Rights -- as detailed in a report by the Justice Department's own inspector general -- had to be disappointed by this week's ruling from the U.S. Court of Appeals for the District of Columbia.
The appeals panel's decision declining to place any limits on the government's power to detain, arrest, try, and deport certain classes of people in secret went Republican appointees 2, Democratic appointees 1. Writing for the majority, Judge David B. Sentelle noted that the courts have always shown deference to executive branch officials in the field of national security, and "are in an extremely poor position to second-guess" the government's top counterterrorism officials when they assert, as they did, that releasing the names of people in detention might compromise their efforts.
Judge Sentelle knows his history. During the Civil War, President Abraham Lincoln suspended the right of habeas corpus, imprisoned his critics and closed down their newspapers and crushed public dissent with federal troops, sometimes in defiance of the courts. The judgment of history is that this was a regrettable necessity; for us to countenance a similar arrangement today we would have to be persuaded that al-Qaida is as great a threat to the republic as General Lee's army and the copperheads, and that is clearly not the case.
Judge David Tatel, the dissenting Democratic appointee, ripped his colleagues for letting the Bush administration bend the laws and the Constitution to fit its objectives in an ill-defined war against a nebulous enemy. "For all its concern about the separation-of-powers principles at issue in this case, the court violates those principles by essentially abdicating its responsibility to apply the law as Congress wrote it," Judge Tatel wrote, making the same point as Judge Gladys Kessler, whose lower court ruling was overturned: The function of the judiciary is to keep the other branches of government honest. If we don't know who the secret police are rounding up, it is impossible for us to know, in Judge Kessler's phrase, "whether the government is operating within the bounds of law." And we want the government to operate within the bounds of law, don't we? Otherwise, we might as well be living in Saudi Arabia.