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Jewish World Review Oct. 29, 2001 / 12 Mar-Cheshvan, 5762

Nat Hentoff

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The FBI under cover of darkness -- THE president, the secretaries of state and defense, and the attorney general have assured the nation that the measures to safeguard us against our terrorist enemies will not violate our fundamental freedoms. And House Majority leader Dick Armey speaks of "the precious Bill of Rights that we are fighting to defend" in this long-term war.

Yet the FBI -- under the leadership of Attorney General John Ashcroft -- is rounding up hundreds of people, many of them immigrants, and keeping them in secret custody. In a number of cases, their lawyers are not even told where their clients are because they are transferred from prison to prison, sometimes across the country. There they can be questioned without the inconvenience of a lawyer going before a judge to get a writ of habeas corpus so the government will explain the legal basis for their being held.

Timothy Lynch, the Cato Institute's Director of the Project for Criminal Justice, is a superior investigator of abuses of the Constitution. He produced the most telling record of Bill Clinton's serial violations of the Constitution during the impeachment process. With regard to the current sweeps of over 800 people who may have information about terrorism, Lynch says that the "FBI is operating under the cover of darkness."

Some of the detainees are being held and charged for violations of state or local laws, or of their status as immigrants. But that's not the primary reason they were picked up.

Most troublesome to civil libertarians is that an undisclosed number are being detained as material witnesses. Under that statute, the government does not have to show probable cause of criminal wrongdoing to lock someone up. They purportedly may have some useful information, but they are not being charged with any connection to terrorism. And they can be in custody indefinitely.

The attorney general says that all of these prisoners have a right to a lawyer, and a list of pro bono attorneys is provided if they have insufficient funds. But a lawyer can only be of use if he or she can find the client. And reporters can't get to them.

In an Oct. 17 letter to the Justice Department, the American Civil Liberties Union asks: "How many people have been detained; what is their nationality or ethnicity; how many are being held as material witnesses, and is there any limit on how long they have been jailed; and how many have been cleared of any connection with terrorism? Furthermore "Of those who have been cleared, how many are still in detention, and on what basis?"

The very core of our system of justice is due process -- fairness. And the U.S. Supreme Court -- in Zadvydas vs. Davis (2001) -- has reaffirmed that due process "applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent."

Steven Shapiro, legal director of the ACLU, emphasized on National Public Radio: "The government has given out almost no information about on what basis people have been picked up, where they are being held, and whether they are being given access to family and counsel."

On Oct. 17, John Ashcroft, during the "Jim Lehrer News Hour" on the Public Broadcasting System, solemnly told the public that "we are holding the individuals in accordance with the Constitution ... Their rights are being observed."

As the ancient adage says, the first casualty in war is truth.

In The Wall Street Journal, The New York Times and the St. Petersburg Times, lawyers have told of clients who have thoroughly cooperated with the FBI and yet have been detained and transported away from their lawyers. Robyn Blumner, a syndicated columnist who has been a civil liberties lawyer, tells of Al-Badr Al-Hazmi, a Saudi Arabian doctor in San Antonio, Texas. Incarcerated, "he was first taken to a local jail, then flown to a federal jail in Manhattan and later transferred to a Brooklyn facility." The media called him "Dr. Terror."

The government refused to tell his lawyer where the doctor was; "and after 13 days in jail, 13 days of humiliation, he was released," with a terse Justice Department statement that "he's been cleared."

Others who have not been charged with any crime are still being held. Four Mauritanian students, shipped from prison to prison, have been detained for over a month, and their lawyer can't find them, as reported on National Public Radio.

How many Americans know about these abuses of fundamental due process? And even more disturbing, how many Americans care about -- to quote Dick Armey -- "the precious Bill of Rights that we are fighting to defend?"

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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