Balancing Liberty and Security in the Terror Fight

The current New York Review of Books has an interesting article on the Justice Department's domestic anti-terror crackdown following 9/11. Author David Cole, a Professor of Law at Georgtown University, begins his review with a tough indictment of former Attorney General John Ashcroft. Here's a segment:

In June 2003, the Justice Department's inspector general issued an extensive report on the federal government's treatment of immigrants locked up as "suspected terrorists" following September 11. The report found that in the first year of the investigation of September 11, more than seven hundred foreign nationals had been swept up, often on no charges at all, and placed in preventive detention under immigration law auspices. By order of Attorney General Ashcroft, their identities were kept secret. Also by order of the attorney general, more than six hundred of those detained were tried in secret immigration proceedings, closed to members of their families, the public, the press, and even members of Congress. The prisoners were initially held incommunicado, and thereafter limited to one phone call per week. At the Metropolitan Detention Center in Brooklyn, where eighty-four of the prisoners were kept, guards tried to deny them even that right by treating an affirmative response to the question "you doing all right?" as a waiver of their right to make their weekly phone call.

Immigration law permits detention of foreign nationals while they await the outcome of their deportation proceedings, but generally only if there is evidence that they are dangerous or pose a risk of flight. The government lacked such evidence about most of those rounded up on immigration charges after September 11, so it contrived various strategies for delaying the hearings that would reveal how little evidence it had. When detainees were able to get hearings, and immigration judges started ordering some released, Ashcroft issued a regulation permitting his immigration prosecutors to keep detainees in prison despite the judge's release order, simply by filing a notice of appeal—without regard to whether the appeal had any merit. (Several federal courts have since declared that regulation unconstitutional.) When many of the immigrants agreed to leave the US, the Justice Department refused to let them go, keeping them locked up for months without any legitimate basis in immigration regulations while the FBI apparently tried to satisfy itself that they were not terrorists. Many detainees were brutally beaten. Today not one of these over seven hundred detainees stands convicted of a terrorist crime.

The inspector general's report of 2003 was a strong indictment of "the Ashcroft raids." It found not only deliberate and systematic abuses of basic human rights, but also that the sweeps had done nothing to further our security. What was Ashcroft's response? As he told Congress at a hearing on the report, "We make no apologies."

That response perfectly captures John Ashcroft's approach to his job as President Bush's first attorney general. In his public statements he consistently resisted any attempts to engage in reflection, dialogue, debate, or even candid discussion of the difficult trade-offs between liberty and security that were presented in the aftermath of September 11. Instead, he rigidly adopted the most aggressive show of authority, whether or not this actually served our security needs, while ridiculing and challenging the loyalty of those who dared to express concerns about his practices. Above all, he never admitted a mistake.

Cole is also tough on Ashcroft's successor, Attorney General Alberto Gonzales. Gonzales is portrayed as more accomodating than Ashcroft, but ultimately he "was equally important in approving, behind the scenes, many of the administration's most troubling practices."

I have a copy of Ashcroft's, Never Again: Securing America and Restoring Justice, one of the books under review. While I've so far only skimmed the introduction, I have a great deal of respect for Ashcroft's fundamental values. As for Cole's review? He hits Ashcroft hard, but the piece is no simple left-wing legal denuciation of the Bush administration's domestic terror agenda. Cole provides some troubling statistics. For example, Ashcroft required all male immigrants from Arab and Muslim countries to report to the government under a Special Registration program, but as of today not one of the 80,000 men called in under the system stands convicted of a terrorist crime.

Cole is also fair in his reviews of some of the other works under consideration (he dismisses Joe Conason's, It Can Happen Here, as a "partisan attack" on the White House). Still, Cole resorts to hyperbole when he says that the administration sought to "dismantle" the U.S. system of checks and balances. This is odd, considering he mentions repeatly that the courts and members of the administration themselves opposed many of the most agressive anti-terror measures implemented in the wake of September 11. More bothersome, perhaps, is what Cole doesn't do, which is analyze and weigh the legitimate balance between greater security in the terror fight, and the potential loss of liberty that fight entails.