FC: Harvey Silverglate on state of civil liberties at end of 2002

From: Declan McCullagh (declanat_private)
Date: Fri Jan 03 2003 - 10:51:25 PST

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    [Forwarded with permission. This appeared in the Boston Phoenix. --Declan]
    The Boston Phoenix
    Issue Date: Dec 27-Jan. 2í03 ,  2002
    Page 22
    Still standiní
    Although the ground has rumbled beneath the twin pillars of American civil 
    liberties, judicial review and free speech are still intact
    DURING WORLD War II, when American citizens of Japanese ancestry challenged 
    the presidentís authority to relocate them to camps for the duration of 
    hostilities, the Supreme Court washed its hands of the matter and gave the 
    president, Congress, and the military virtually unfettered authority to do 
    what they felt necessary to prosecute the war. Justice Felix Frankfurter, 
    the respected constitutional scholar and Harvard Law professor, concluded 
    his opinion in one 1944 case with the rather dismissive observation that 
    while the Supreme Court might disagree with the president and Congress, 
    nevertheless "that is their business, not ours."
    Since the September 11 terrorist attacks in New York and Washington, two 
    fundamental questions have emerged that will determine whether our system 
    of liberty will survive. The most immediate issue, often cast in shorthand 
    as "liberty versus security," is whether whatever the president and his 
    minions in the Justice and Defense Departments decide to do to us (while 
    claiming to be acting for us) will be subject to judicial review. The 
    second is whether Americansí right to free speech  essential to correcting 
    abuses of official power that sometimes the courts themselves are hesitant 
    to oppose  will survive reasonably intact, or whether speech, too, will be 
    viewed as just another expendable obstacle to security.
    Although the Bush administration, with the acquiescence of a supine 
    Congress, has attacked civil liberties with breathtaking speed and scope, 
    so far the prospects for these two crucial areas of the law  review by an 
    independent judiciary and free speech  look fairly positive. And thatís 
    good not only for the survival of liberty, but also for winning ultimate 
    victory over terrorism.
    This sobering reality is often ignored by those who opt to restrict liberty 
    in order to expand security. But our history demonstrates that it is 
    precisely because we are free that we have been able to achieve the 
    dynamism necessary to protect ourselves in a distressingly hostile world 
    that so often disparages liberty and democracy. Such a point was made 
    recently by Massachusetts Institute of Technology president Charles Vest, 
    who implored the federal government not to impose draconian restrictions on 
    the openness of scientific research and peer dialogue. Openness, he urged 
    the administration, is essential for scientific progress, and the latter is 
    essential for security.
    IT MAY SEEM obvious that the courts should review the activities of the 
    other branches of government, since we are accustomed to living under a 
    system of divided governmental authority. Under the so-called separation of 
    powers, the decisions of the federal courts, especially the Supreme Court, 
    constitute "the law of the land" and, taken together, act as a guide to the 
    executive and legislative branches, limiting their powers. But the 
    principle has come under enormous strain in times of perceived national 
    danger. This is such a time. And yet the federal judiciary has asserted 
    itself in the face of executive (and sometimes legislative) claims to 
    essentially unfettered power in the name of national security in a number 
    of cases around the country.
    One of the more important assertions of judicial authority over executive 
    "anti-terror" actions took place here in Boston. In March, Chief Judge 
    William Young of the United States District Court overruled a Department of 
    Justice move to impose severe restrictions on the right of alleged "shoe 
    bomber" Richard Reid and his lawyers to confer and prepare a defense. 
    Young, a Reagan appointee and hardly a "liberal," demonstrated that 
    protecting constitutional liberties is a nonpartisan obligation. His 
    decision was therefore encouraging on two counts.
    There have been other modest rebellions in the ranks of the lower and 
    intermediate levels of the federal judiciary. (None of these cases has yet 
    reached the Supreme Court.) Even the US Court of Appeals for the Fourth 
    Circuit, sitting in Richmond, Virginia, known as the most conservative 
    federal court of appeals, did not jump through all the hoops lined up by 
    the Department of Justice in the case of Yaser Hamdi. Known as the 
    American-born "Cajun Taliban," Hamdi had been caught by American troops in 
    Afghanistan last November and moved to the prison camp at GuantŠnamo Bay, 
    Cuba. Hamdiís lawyer asked that his client, an American citizen designated 
    by the president as an "enemy combatant" and therefore supposedly stripped 
    of constitutional rights, be allowed to confer with his lawyer. In an 
    opinion by the courtís ultra-conservative chief judge, J. Harvie Wilkinson 
    III, the three-judge panel refused to throw out Hamdiís petition, despite 
    its observation that the presidentís wartime decisions should be given 
    "great deference from the court." "With no meaningful judicial review," 
    wrote Judge Wilkinson, "any American citizen alleged to be an enemy 
    combatant could be detained indefinitely without charge or counsel on the 
    governmentís say-so." The crucial point made by the Fourth Circuit was that 
    it was up to the courts to monitor such exercises of presidential power, 
    even if the courts were loath to reverse an executive decision. The court 
    pointedly retained jurisdiction to review the governmentís conduct.
    Much the same point was made in an important decision handed down on 
    December 5 by Judge Michael Mukasey of the federal district court in 
    Manhattan. Over the dangerously inflated claims of President George W. Bush 
    and Attorney General John Ashcroft, Judge Mukasey ruled that Jose Padilla, 
    the man suspected of (but not criminally charged with) planning to explode 
    a radioactive "dirty bomb" somewhere in the country, who has been held 
    incommunicado in a Navy brig since June, does indeed have certain rights. 
    He has the right, ruled the court, to meet with a lawyer and to contest the 
    presidentís claim that he is associated with Al Qaeda, poses a threat to 
    national security, and therefore can be held until the termination of 
    hostilities in the war on terror. While Judge Mukasey said that the 
    government would not have to offer much proof in order to hold Padilla  an 
    American citizen captured on American soil and designated by Bush as an 
    "enemy combatant" rather than a criminal defendant entitled to a trial  the 
    judge affirmed that Padilla had a right to seek review by the courts. The 
    administrationís effort to avoid judicial review by refusing to charge 
    Padilla with a crime had largely failed.
    Thus, while the administration has enjoyed considerable success in 
    detaining even citizens on far less evidence than is normally required to 
    arrest and charge criminal defendants, it has not been able to act entirely 
    without judicial oversight. While the failure of the courts to accord 
    fuller constitutional rights to such detainees is troubling, it is at least 
    heartening that the executive has not been allowed to operate entirely in 
    secret and to hold citizens and non-citizens alike totally incommunicado. 
    Testing the legality of oneís incarceration through the courts  the 
    so-called privilege of the writ of habeas corpus  has been guaranteed in 
    Anglo-American law since the Magna Carta was promulgated in 1215 during the 
    reign of King John of England. By and large, our courts have been ruling 
    that this right did not die on September 11. There is some cause for modest 
    consolation in that.
    FREE-SPEECH RIGHTS have also remained more or less intact since September 
    11. The public debate over executive incursions into liberty has been 
    vigorous  more so, it seems, than the debate in Congress. The 
    administration now appears hesitant to exercise official power to quell 
    dissent and criticism. Perhaps this reluctance stems from the firestorm 
    caused when, in testimony before the Senate Judiciary Committee on December 
    6 of last year, Attorney General Ashcroft had the temerity to suggest that 
    criticism of the administrationís anti-terror initiatives should be equated 
    with giving comfort to Americaís enemies  a thinly veiled accusation of 
    treason: "To those who pit Americans against immigrants, citizens against 
    noncitizens, those who scare peace-loving people with phantoms of lost 
    liberty," he railed, "my message is clear: your tactics only aid 
    terrorists, for they erode our national unity and diminish our resolve. 
    They give ammunition to Americaís enemies and pause to Americaís friends." 
    At first, Judiciary Committee members offered pitifully little criticism of 
    these incendiary remarks, but public criticism, even ridicule, was 
    profound. One wonders if Ashcroft, though dizzy with the arrogance of 
    power, would dare repeat such words now.
    This is not to say, of course, that the war on terrorism has not triggered 
    calamitous assaults on civil liberties. PostSeptember 11 legislation, 
    mainly the infamous USA Patriot Act, enacted only weeks after the terrorist 
    attacks by stampeded congressmen (most of whom did not even read the 
    mammoth bill), does enormous damage to privacy and a wide swath of rights. 
    Rights of privacy are in very serious danger. The government is asserting 
    enormous power to snoop into the affairs of ordinary citizens without the 
    normal safeguards that the Fourth Amendment, until recently, was thought to 
    provide  namely, that a citizenís privacy was more or less protected unless 
    the government could show "probable cause" to justify surveillance. Newly 
    enacted secrecy provisions hide much current government activity from 
    public and media view. The line that previously separated foreign 
    intelligence gathering from domestic criminal law enforcement has been 
    significantly blurred. Investigations into political activities, sharply 
    curtailed after the Watergate scandal, are back in vogue. And after decades 
    of steady progress against the pernicious, if uncodified, practice of 
    racial profiling, ethnicity and skin hue have made a resurgence as a basis 
    for suspicion, investigation, and even temporary detention by 
    law-enforcement officers.
    The future of liberty in this most free of all nations is hardly a sure 
    bet. However, the two fundamental pillars of liberty, without which no 
    other rights are secure, remain alive and fairly healthy: the separation of 
    powers  with the judiciary refusing, so far, to defer entirely to the 
    executive branch  and the freedom of the American people to voice dissent.
    We have a huge and lengthy double-edged battle in front of us: fighting 
    terrorism, while opposing the destruction of our free institutions in the 
    process. The American people  that is, all of us  have ultimate power over 
    the direction of our society. As Supreme Court justice Robert Jackson wrote 
    in 1944, when he dissented in one of the Japanese-detention cases: "The 
    chief restraint upon those who command the physical forces of the country, 
    in the future as in the past, must be their responsibility to the political 
    judgments of their contemporaries and to the moral judgments of history." 
    The Constitution gives the American people the tools to mold and restrain 
    "the political judgments" of those in power. Those tools are a free court 
    system and freedom of speech. It is our sacred obligation to use them.
    Harvey A. Silverglate is the co-author of The Shadow University: The 
    Betrayal of Liberty on Americaís Campuses (HarperPerennial, 1999), 
    co-director of the Foundation for Individual Rights in Education, and a 
    partner in the Boston law firm of Silverglate & Good.
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