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U.S.: Courts Upholding Bush's Strict Actions In Terror War

  • Andrew Tully

Since 11 September 2001, the U.S. government has been taking strong measures aimed at capturing suspected terrorists and preventing a recurrence of the attacks in New York, Washington, and Pennsylvania that killed some 3,000 people. Some critics say the government has gone too far, sacrificing civil liberties for the sake of national security. So far, however, the nation's courts have sided with President George W. Bush and his Justice Department.

Washington, 19 June 2003 (RFE/RL) -- American courts have been ruling consistently in favor of the strict measures being taken by the administration of U.S. President George W. Bush to fight terrorism.

One federal appeals court recently upheld the practice of holding secret hearings on suspected immigration violations. A second court said the prisoners from Afghanistan being held at an American military base in Cuba are not covered by the protections of the U.S. Constitution.

A third court has ruled that an American citizen captured while fighting for an enemy force may be denied access to a lawyer, a right that the constitution guarantees anyone charged with a criminal offense in the United States.

Most recently, on 17 June, a three-judge federal appeals court in Washington ruled that the government may withhold the identities of about 1,200 people who have been arrested in connection with the terrorist attacks in the United States on 11 September 2001.

The judges ruled in a 2-1 vote to overturn a ruling by a lower-court judge, who had said it is essential for the public to know as much as possible about the suspects' cases to ensure the government is not violating their civil rights.

In its appeal of that ruling, the government argued that to reveal the detainees' identities could give terrorists valuable information about how it was conducting its investigation into the terror attacks.

Paul Rosenzweig studies legal issues, particularly the rights of defendants, at the Heritage Foundation, a private-policy research center in Washington. Rosenzweig tells RFE/RL that there is a delicate balance between ensuring security and preserving civil rights and liberties. In particular, he says, it is important for the public to know exactly what its government is up to, particularly when it involves depriving people of their liberty.

But Rosenzweig says he believes the appeals panel that issued the decision acted properly to keep terrorist organizations from learning details of the U.S. investigation.

"On this one, I think that probably the court struck the right balance. The risks of disclosure are too great."

Rosenzweig points out that throughout U.S. history, courts have deferred to the executive branch of government -- in other words, the White House -- on issues of national security.

The reason, according to Rosenzweig, is that national defense is the president's province, and the president is expected to have the best knowledge about the nature of the threats the country faces. He says the courts are not likely to change this approach now.

"The courts always pay deference to the executive branch in wartime decisions. They're not supine, but they're going to be very leery of substituting their own judgment for that of the executive branch."

Tradition is no reason to give the executive branch carte blanche, according to Jamie Fellner, the director of U.S. programs for the advocacy group Human Rights Watch in New York.

She tells RFE/RL that the latest ruling is only the most recent example of the American judiciary abandoning its responsibility at a time when national security is perceived to be under threat.

"This is not unprecedented," Fellner said. "Every time there have been periods in U.S. history of great national security concern, the courts have basically behaved quite badly."

Fellner cites the forced detention of Americans of Japanese descent during World War II and the abuses of the anticommunist scare of the early 1950s as examples of U.S. courts not interceding to protect the civil liberties of citizens and noncitizens alike.

Fellner says that in the opinion of Human Rights Watch, the 17 June court decision gave the U.S. government permission to put what she called a "blanket of darkness" over the detention of people who have so far been convicted of nothing. And it did so, she says, on the weakest of evidence.

"The court simply took at face value these very vague, speculative allegations of the government of the terrible things that might happen if the names were released, without any specificity," she said.

Thomas Carothers is the co-director of the Democracy and Rule of Law Project at the Carnegie Endowment for International Peace, another Washington think tank. He tells RFE/RL that his chief concern about the ruling -- and the ones that preceded it -- is that those in detention are not only powerless but have few allies to act on their behalf.

Carothers says the American people apparently are unconcerned if the courts sacrifice civil rights because they feel they will not be affected. The danger, he says, is that a small minority of U.S. residents -- whom he describes as an "out group" -- will take the brunt of such rulings.

"We have the real problem of an 'out group' here," Carothers said. "Most Americans feel they're not going to be affected by these kinds of measures. It's a small group of people who don't have much political standing in society. And so it is a dangerous formula."

Some have argued that Americans should not be concerned about tightening rules regarding immigrants and foreign visitors to the United States because such rules in Europe -- even Europe's oldest and most liberal democracies -- are often stricter.

Carothers says that while this may be true, it is inconsistent with the openness that is central to the U.S. character: "European systems are more draconian in some ways than [in] the United States, but part of what makes America America is we're not like that."

The case that led to 17 June ruling was brought by several civil liberty and other advocacy groups who said the names must be made public under the federal Freedom of Information Act, a law that previously has led to public disclosure of material the U.S. government has tried to keep classified.

The leader of the coalition seeking the disclosures is the Center for National Security Studies. Its director, Kate Martin, said she intends to appeal the case, perhaps as high as the U.S. Supreme Court, the nation's highest tribunal.