Chisun Lee of the Village Voice suggests the Justice Department is subverting its own secrecy arguments with respect to the detainees in Open-and-Shut Cases.

If the Justice Department is so concerned about the need for secrecy, so concerned it must keep the detainees' cases out of U.S. federal courts, then why all the detail in last week's six indictments out of Detroit and Seattle?

"Last week's indictments seemed to reveal exactly the sort of information the government said it wanted to protect in a recent court fight with civil liberties organizations seeking the names of more than 750 September 11 detainees...."

"...for the government's critics, last week's events called for some serious explaining: If national security and significant amounts of public information can coexist—as the recent court papers in Detroit and Seattle indicate—then why is the government fighting to keep secret hundreds of detainee cases and hearings?"

Good question, don't you think?

Nat Hentoff calls for Attorney General John Ashcroft's resignation in General Ashcroft's Detention Camps

"Now more Americans are also going to be dispossessed of every fundamental legal right in our system of justice and put into camps. Jonathan Turley reports that Justice Department aides to General Ashcroft "have indicated that a 'high-level committee' will recommend which citizens are to be stripped of their constitutional rights and sent to Ashcroft's new camps."

We gave our views on this topic a few weeks ago when Instapundit questioned Professor Turley's column by writing:

"I'm opposed to the imprisonment of American citizens without trial. Unlike the imprisonment of foreign citizens, it is almost certain to have a deeply corrupting effect on American politics. But Turley's hype does a disservice."

"As I mentioned in my original post on Turley's piece, bogus rumors of government prison camps have been around for decades. If this stuff is hyped when it's not true, what will people say if it ever becomes true? I'll tell you what they'll say: 'There goes Turley, crying wolf again.'"

Maybe Turley and Hentoff aren't seeing Instapundit's wolf --but it seems to us Hentoff is not far off the mark and we should all be on the alert for a wolf in sheep's clothing.

There has been a lot of postive commentary about the Sixth Circuit's decision last week to open deportation hearings over the Government's objections. The case is Detroit Free Press v. John Ashcroft, and you can read the full opinion here.

Here are a two quotes from the opinion:

"By the simple assertion of "national security," the Government seeks a process where it may, without review, designate certain classes of cases as "special interest cases" and, behind closed doors, adjudicate the merits of these cases to deprive non-citizens of their fundamental liberty interests. This, we simply may not countenance. A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of our Constitution. "[F]ully aware of both the need to defend a new nation and the abuses of the English and Colonia governments, [the Framers of the First Amendment] sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged." See New York Times, 403 U.S. at 719 (Black, J., concurring).

The opinion concludes with:

"The public's interests are best served by open proceedings. A true democracy is one that operates on faith - faith that government officials are forthcoming and honest, and faith that informed citizens will arrive at logical conclusions. This is a vital reciprocity that America should not discard in these troubling times. Without question, the events of September 11, 2001, left an indelible mark on our nation, but we as a people are united in the wake of the destruction to demonstrate to the world that we are a country deeply committed to preserving the rights and freedoms guaranteed by our democracy. Today, we reflect our commitment to those democratic values by ensuring that our government is held accountable to the people and that First Amendment rights are not impermissibly compromised. Open proceedings, with a vigorous and scrutinizing press, serve to ensure the durability of our democracy."

New York Times columnist Bob Herbert comments persuasively on the decision in Secrecy is Our Enemy.

We began our posting this morning with a question as to whether the Government was intending to make James Ujaama, being held as a material witness in connection with the Sept. 11 attacks, a defendant as well.

The mystery is over. The Government has indicted Ujaama in Seattle. He is charged with "attempting to set up an al Qaeda training camp at a farm in Bly, Ore., where he and others hoped to prepare future terrorists for 'global violent jihad.'"

A second count charges Ujaama with designing Web sites for U.S. Terrorist-designee al-Masri "advocating violent jihad against America."

Ujaama issued a statement Tuesday night saying he is "innocent of any wrongdoing and . . . fully prepared to face my accusers and defend myself in a court of law."

Lawyers for James Ujaama, being held on a material witness warrant in Virginia in connection with the Sept. 11 attacks fear the feds are misusing the process to obtain an indictment against him.

"I have a very grave concern," his attorney in Denver, Daniel Sears said. "I question whether they really want his testimony and whether this is just a vehicle to detain him, pending a determination whether they're going to return criminal charges against him."

"Ujaama is due in a federal courtroom in Alexandria today, where a federal magistrate judge is scheduled to review his detention status. Ujaama appeared before a U.S. magistrate in Denver three times before he was moved in the first week of August to Virginia. "

The outcome of the hearing in Denver was secret. However, the article today states that Sears agreed to allow Ujaama to be moved to Virginia.

"Sears regrets that he let authorities relocate his client.

"We had assurances that the return on the material witness warrant would have been accomplished over two weeks ago," said Sears, referring to Ujaama's anticipated testimony.

"I can tell you that if I knew then what I know now, with respect to what has happened to James, we would not have been so ready to accede to the Eastern District of Virginia. The environment for his release was much better, here."

We highly recommend John Payton's op-ed piece in today's Washington Post, "The Rule of Law"

Among its finer points:

"In two federal cases the Department of Justice is asserting that the president has the power to detain, indefinitely and without any charges, any person, including any United States citizen, whom it designates an "enemy combatant." The Justice Department claims that persons so designated may be denied counsel and held incommunicado. Furthermore, as the U.S. Court of Appeals noted with clear surprise, "The government . . . submits that we may not review at all its designation of an American citizen as an enemy combatant." This claim of unreviewable power is unprecedented and extraordinary."

Payton tells us to put aside thoughts of Hamdi and Padilla for the moment.

"I want to talk about the rest of us. I want to talk about our liberty and our rights. What would happen to any of us if we were somehow designated an enemy combatant and detained without charges, denied counsel, and held incommunicado at a military facility? In these circumstances would you have any rights? Could someone on your behalf successfully challenge your detention in court? (Obviously, you could not do so yourself if you were held incommunicado.) It is the position of the Justice Department that no such challenge should be allowed -- that the decision of the president to classify you as an enemy combatant is not subject to any meaningful review. Simply put, an innocent person falsely accused of being an enemy combatant would have no recourse."

We also agree with Mr. Payton that:

"This is an extraordinary moment. If, in response to the challenge of terrorism, we transform ourselves into a society that eliminates the rule of law and concentrates in the president unchecked power to detain people without charges or judicial review, we will have become our antithesis. The irony would be profound."

Instapundit asks if Jonathan Turley's op-ed piece last week alerting everyone to Ashcroft's possible plans to build prison camps for U.S. citizens who are declared by Ashcroft to be "enemy combatants" is hyperbole.

For the record, Instapundit is "opposed to the imprisonment of American citizens without trial. Unlike the imprisonment of foreign citizens, it is almost certain to have a deeply corrupting effect on American politics. "

About the Turley article he writes,

"ANOTHER INTERNET RUMOR? John Hawkins investigates Jonathan Turley's claim (via a Los Angeles Times op-ed) that Ashcroft and the Justice Department were planning prison camps and finds it wanting."

The issue according to Mr. Hawkins, who writes for the Right Wing News by the way, seems to be whether plans to build a separate wing that could accomodate 20 of such prisoners equals a "prison camp."

What number should it take, 25, 100, 500? Should the number of beds at the first such facility be the determinative factor of whether it is a camp? Could it serve as a model for future facilities? If 50 such facilities were contemplated, would they be camps?

We don't know if Ashcroft is planning camps or not. But if it looks like a duck.....

[comments now closed]

A Rocky Mountain News Editorial today takes the Government to task for its secretive detention policy on U.S. Citizens in American Citizens Shouldn't 'Disappear':

"...if the government is going to persist in holding U.S. citizens indefinitely as grand jury witnesses, the public has a right to hear, or at least read, the constitutional arguments about the statute."

"The newspapers aren't trying to spring Ujaama themselves; he has his own attorney for that job. What we're interested in are the larger questions of public access to judicial proceedings and the detention of a citizen without a public hearing. "

"Holding foreign nationals at Guantanamo who have fought the U.S. abroad is one thing; arresting a U.S. citizen in the U.S. and then indefinitely depriving him of his liberty when he hasn't been charged with a crime is something else. "

"Terrorism is a serious threat but it doesn't justify the government's attempt to deprive U.S. citizens of traditional constitutional rights. Our judicial system can survive even in the terrorist era. "

The News has a special interest in the case of James Ujaama. He was seized from his grandmother's house in Denver.

Here is more on Ujaama's case.

In Who Decides Whether Yaser Hamdi, Or Any Other Citizen, Is An Enemy Combatant? Columbia law professor Michael Dorf reviews the Government's arguments, and criticizes, in particular, its contention that the military alone -- without judicial review -- has the right to determine whether Hamdi was indeed an enemy combatant.

The Chicago Tribune has a good article raising both sides of the Hamdi Detention Issue--the detaining of American citizens as so-called "enemy-combatants" when no criminal charges are brought, when Congress has not officially declared a war, and when they have not been declared "prisoners of war." Is it legal for the President, as chief executive, on his own to withold basic constitutional rights from these people, such as the right to consult with a lawyer?

"One would hope that we don't start locking people up without giving them a lawyer, judge, jury and charges they can refute," said Frank Dunham, the public defender who has been appointed to represent Hamdi. "Mr. Hamdi is being held on an executive charge, with no opportunity to refute or counter the charge, and that is scary."

No kidding. We also agree that the chief executive shouldn't be able to trump the Courts. That would bring down our entire system.

"There has never been a court case that has acknowledged the unfettered right of the executive to detain--without trial, without any due process, without charges, without access to counsel--a U.S. citizen," said Kenneth Hurwitz, a senior attorney with the Lawyers Committee for Human Rights. "There is no precedent whatsoever for the power grab that they are asserting."

Here is the battle shaping up:

"Presidents traditionally are jealous guardians of presidential power, and this White House is perhaps more protective than most. If Doumar [the judge in the Hamdi case] maintains his insistence that Hamdi is entitled to a lawyer and higher courts back him up, and if the White House flatly refuses to comply, it could prompt a constitutional crisis, with the executive and judicial branches both insisting on their powers."

"If you're the president, there is a point at which you will tell [the courts] to go jump in a lake," [Northwestern University law professor Ronald Allen] said. "The risk here is that the courts will be ignored. That would be shattering."

Findlaw Columnist Joanne Mariner today discusses the case of Abdallah Higazy and its potential ramifications.

Higazy is the 30 year-old Egyptian grad student with a valid visa. who was detained after a security guard at the Millenium Hilton Hotel, located across the street from the World Trade Center attack site, claimed to have found an aviation radio his room on Sept. 12.

Later, the radio was claimed by an American Airlines pilot. By that time, Hgazi had been interrogated outside the presence of his lawyer and intimidated into falsely confessing the radio was his.

Mariner examines the consequences of the government's position that lawyers must be excluded from the interrogation process because "they would pose an impediment to intelligence gathering" and, get this, "undermine the interrogation dynamic."

Mariner says that the Higazy case and those of other detainees being held as material witnesses and on immigration charges "... suggests that the desired atmosphere for interrogations is one of intimidation rather than trust, and that the denial of legal counsel may result in injustice rather than the collection of accurate information."

In court documents made public last week, the judge in the Higazy case, the Hon. Jed Rakoff, ordered prosecutors to investigate the FBI's conduct of the investigation. He feels they misled him at hearings in the case.
Mariner's article is thorough, well-researched and should give all of us pause to wonder exactly what it is our federal prosecutors and the Justice Department are doing behind closed doors.

U.S. District Court Judge Robert Doumar directed the Government Friday to justify it's detention of Yaser Hamdi, the American born young man captured in Afganistan.

"Saying that he would not be a "rubber stamp" for the government," Judge Doumar ordered United States attorneys today to turn over all of Hamdi's statements as well as any documents supporting their argument that Hamdi should remain jailed without charges and access to a lawyer.

Doumar also ordered prosecutors to turn over "statements by Mr. Hamdi's captors, a detailed chronology of his capture and detention beginning with his surrender to the Northern Alliance in Afghanistan late last year, the criteria used to determine that he was an "unlawful enemy combatant," and the names and addresses of the people who made the determination. "

The Judge will review the documents privately, or "in camera" as it's called.

In his written order, Judge Doumar said,

"This case appears to be the first in American jurisprudence where an American citizen has been held incommunicado and subjected to an indefinite detention in the continental United States without charges, without any findings by a military tribunal, and without access to a lawyer."

Hamdi's lawyer, Federal Defender Frank Dunham, Jr. theorizes that the Government is using Hamdi as a test case to see just how far it can go.

But Judge Doumar is keeping prosecutors on a short leash and on previous occasions has expressed his dissatisfaction with their answers. The Government's submission to date has been a two page statement alleging that when Hamdi surrendered in Afganistan, he had a rifle in his possession.

Not enough said the Judge, and we whole-heartedly agree.