Backing Off?

Bush is suddenly easing up a bit on civil liberties. Why?


This week brought some new and unexpected twists in the ongoing tussle between the Bush administration and civil liberties advocates over practices the government claims are essential in its “war on terror.”

On Monday, Asa Hutchinson, Homeland Security’s undersecretary for border and transportation security, announced that his department was abandoning the special registration requirements for immigrant men from Middle Eastern countries. The program, known by the acronym NSEERS, which began after the Sept. 11 attacks, required men and teenagers from 25 countries, most in the Middle East and North Africa, to be photographed and fingerprinted upon arrival in the United States, and to periodically re-register with the Immigration and Naturalization Services.

The program was assailed by civil rights and immigrant groups as victimizing Arabs and Muslims in the United States and drew comparisons to the special registration program under which Japanese-Americans were held in internment camps during World War II. Out of the 290,000 men who complied with the Homeland Security protocol, 2,870 were detained and 23 are still in custody. Nobody has been charged with involvement in terrorism. Hutchinson didn’t go into the reasons for ending the registrations, explaining that funds could be better allocated. “It was a significant resource commitment to handle these re-registrations…. The resources can be better used in individual targeting,” he said.

While civil liberties groups welcomed the change in policy, the ACLU, for one, noted that although NSEERS registration has been modified, its basic discriminatory structure is still in place. Laura W. Murphy, Director of the ACLU Washington Legislative Office, explains:

“These changes suspend one requirement under NSEERS but leave untouched the other provisions that still unfairly target immigrants for detention and deportation because of their religion, ethnicity or national origin. … It’s crucial to note that the department cited lack of effectiveness in its narrowing of the program, exposing the bankruptcy of such discrimination as a security measure.”

On Tuesday the Defense Department announced that Yaser Esam Hamdi, a U.S. citizen captured in Afghanistan in late 2001 and labeled an “enemy combatant,” would be allowed access to legal counsel, which he has been denied for two years. The government argued that Hamdi’s enemy combatant status trumped any legal rights he possessed as an American, an argument also invoked to justify his detention, incommunicado, in a naval brig in South Carolina. The announcement came as a deadline approached for the government to file its case to the U.S. Supreme Court, which may choose to review Hamdi’s detention. Defense officials explained Hamdi’s legal consultation was simply “a matter of discretion and military policy,” and not a department precedent. The decision does not immidiately effect the other two men held as enemy combatants, Jose Padilla and Saleh Kahlah al-Marri.

While Hamdi’s defense team expressed guarded relief, other legal experts predict that the move might end up giving the government’s case an extra boost. Erwin Chemerinsky, a lawyer critical of administration policies told the Associated Press that the prosecution’s move served its own interests.
“It says that the government realizes it’s been taking an extreme position and wants to soften it so as to help its chances in the Supreme Court,” he said.

While Hamdi’s case is making progress on the mainland, the case of the enemy combatants held at Guantanamo Bay is taking a surprising turn. An administration spokesperson announced Sunday that some 100 prisoners are to be released in coming months. More than 600 Guantanamo detainees have been held since the U.S. invasion of Afghanistan in 2001, and have been continually denied legal counsel. Thus, the detainees have been the subject of international criticism and legal wrangling. It’s unclear whether they will face charges on return to their home countries.

As the San Francisco Chronicle says in an editorial, the long-term legal limbo of these “enemy combatant” prisoners is inconsistent with American values — not to mention the ideals the administration we’re supposed to be spreading around the world.

“This Guantanamo jumble gives further credence to the view of two former high-ranked members of Attorney General John Ashcroft’s staff, who challenge the administration’s denial of any legal status to those it labels “enemy combatants.” These can include not only captured foreigners such as the Guantanamo inmates, but Brooklyn-born Jose Padilla, nabbed in Chicago as a suspect in a dirty-bomb plot and isolated without legal rights in a military lockup.”

Why the change in tack on these three issues? An editorial by the Christian Science Monitor suggests that next year’s election might have something to do with the administration’s back-pedaling.

“So far, since 9/11 and the war in Afghanistan, the Pentagon and Justice Department have largely had a legal free ride from lower court judges in how they treat terrorist suspects. But the legal pendulum could be swinging back toward preserving civil liberties. The Supreme Court under Chief Justice William Rehnquist is not likely to let the executive branch override the court’s powers, even in times of war.

So as these cases move toward a final decision (and as the 2004 election campaign heats up), the Bush administration appears to be backtracking a bit on its hard-line stance.

The Bush administration contends it must detain such suspects for long periods to ensure adequate “intelligence collection.” And it wants to keep suspects from talking to terrorist leaders, even through a lawyer. For judges, the difficulty lies in not having enough information to know if the administration is correct about the risks, and whether to allow any information to be made public.

The administration’s emphasis on security is admirable. But the high court can play a role by showing that a successful war on terrorism also means keeping rights intact.”

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