Taking Liberties
Are tough new responses to terrorism upsetting the balance between legal rights and national security?
Zacarias Moussaoui, the only person charged in an American court with conspiring in the September 11 terrorist attacks, calls the federal judge hearing his case the "death judge." His own lawyers, whom he has rejected, are "death lawyers." And Attorney General John Ashcroft? He's a "natural-born liar."
Moussaoui is, to put it mildly, hardly a sympathetic defendant. But the case of the French citizen often dubbed the "20th hijacker" is not only drawing lots of media attention but raising a host of vexing new legal questions as well.
The Moussaoui case represents just one in a panoply of tough new legal responses to the terrorism threat that are changing the balance between an individual's constitutional rights and the government's need to protect national security. The Bush administration is planning military tribunals for foreign terrorism suspects and detaining as "material witnesses"--without charges--individuals it suspects of links to terrorism. Increasingly, liberals and conservatives alike are questioning whether such measures go too far. Is the war on terrorism, they ask, compromising civil liberties?
Moussaoui's case could provide some answers to the question. After a closed hearing this week, U.S. District Judge Leonie Brinkema must rule by May 15 on a critical issue: Should a defendant charged with terrorism-related crimes be allowed to question a witness thought to have information useful to his defense if the witness is a member of a terrorist organization? Or can the government, as it asserts, block such questioning on national security grounds? A compromise over Moussaoui's due-process rights could keep his trial on track for the fall. Failing that, the government may send his case to a military tribunal, where he would have fewer rights than in federal court.
The precedent that would be set by that scenario troubles civil libertarians, already alarmed by what they see as a Justice Department too ready to cast aside individual rights in its pursuit of terrorists. "We tend to overreact in times of war and then we apologize for it afterward," says George Washington University law Prof. Stephen Saltzburg.
Every week seems to bring fresh examples of the shifting balance between fighting terrorism and upholding personal freedoms. Last month, for example, Ashcroft decided that broad groups of illegal immigrants can be locked up indefinitely if immigration officials say their release would jeopardize national security. Yet just a few weeks earlier, a Denver judge had released two Pakistanis being held while the FBI investigated them for possible terrorism ties. The government, the judge said, failed to show the suspects were dangerous. In some other cases, defense attorneys maintain, prosecutors are securing guilty pleas by implying that the alternative could be to declare a suspect an enemy combatant--thus throwing him into a legal black hole.
Americans are willing to accept some curbs on civil liberties as the cost of fighting terrorism, polls show. But there are signs of uneasiness. More than 90 communities--mostly liberal college towns such as Boulder, Colo., Berkeley, Calif., and Ann Arbor, Mich.--have passed symbolic resolutions urging the feds to respect people's civil rights in the terrorism war. In a similar vein, some librarians are destroying patrons' records rather than risk having to disclose them to federal agents as required under the U.S.A. Patriot Act. In a recent speech, Supreme Court Justice Stephen Breyer, a Clinton appointee, urged lawyers to question the government's tactics, such as the lack of access to counsel for some detainees.
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