The Responsibilities of a Free Press: 'Coverage of the Administration's Record on Civil Liberties since September 11th Has, in My Judgment, Been Sadly Inadequate.'

Nieman Reports, Summer 2004 | Go to article overview

The Responsibilities of a Free Press: 'Coverage of the Administration's Record on Civil Liberties since September 11th Has, in My Judgment, Been Sadly Inadequate.'


On March 2, 2004, Anthony Lewis, a former New York Times columnist, spoke at Benjamin N. Cardozo School of Law at Yeshiva University in a conference called "Weapons of Mass Destruction, National Security, and a Free Press. "Lewis began his remarks by referring to past interactions involving the press and government--notably the government's attempts to suppress publication of the Pentagon Papers and The Progressive magazine's article about the H-bomb. What follows is an updated version of Lewis's speech.

Today I am going to talk about where we are on the issues of national security and the Constitution. The first thing I have to say is that the issues now are utterly different from those in the Progressive or Pentagon Papers case. In 1971, in the Pentagon Papers and, in 1979, in The Progressive, the government tried to prevent the press from publishing material that officials asserted would threaten national security. Since the terrorist attacks of September 11, 2001, the government has not directly engaged the press. It has not sought to enjoin a newspaper or broadcast station from disclosing something. It has invoked national security, rather, to deprive individuals of fundamental rights. In the name of fighting terrorism, it has abruptly overridden guarantees in the Constitution and international law. Ideas that we had regarded as alien to American beliefs--detention without trial, denial of the right to counsel, years of interrogation in isolation--are now American practice.

Let me tell you--or remind you--of one far-reaching claim of national security authority by the Bush administration. It claims the power to designate any American citizen as a supporter of terrorism and then to hold that citizen in detention indefinitely, in solitary confinement, without trial and without the right to consult counsel. And the imprisoned person, according to the administration's legal argument, is to have virtually no chance to challenge his designation as a terrorist.

Two American citizens have been imprisoned in that way for more than 20 months now. I shall briefly describe one. Jose Padilla was born in Brooklyn, became a gang member, served several prison terms, and in prison converted to Islam. In May 2002 he flew into O'Hare Airport in Chicago from abroad. Federal agents arrested him as a material witness before a grand jury in New York investigating the attack on the World Trade Center. He was taken to New York and brought before a federal judge, who appointed a lawyer, Donna Newman, to represent him. A hearing was set for June 11th. But on June 10th Attorney General [John] Ashcroft announced that Padilla would be held without trial as an enemy combatant.

"We have captured a known terrorist," Ashcroft said on television. "While in Afghanistan and Pakistan, he trained with the enemy.... In apprehending him, we have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb.'" That sounded frightening, but of course there had not been--and still has not been--any legal process to determine the truth of Ashcroft's colorful pronunciation of Padilla's guilt.

The Bush administration's lawyers at first said that Padilla should have no right to challenge his imprisonment in court at all. Then it said he could have a habeas corpus proceeding--the traditional way to test the legality of imprisonment. But it argued that the government had to show only "some evidence," not prove its case by a preponderance of evidence or, as in a criminal case, beyond a reasonable doubt.

Newman, Padilla's lawyer, filed a petition for habeas corpus. The evidence produced by the Bush administration was a statement by a Pentagon official, not subject to cross-examination and without any firsthand witnesses. The judge found that that was enough to justify Padilla's detention. But he did say that Newman should have a right to talk with Padilla, for the limited purpose of getting from him any facts inconsistent with his designation as a terrorist. …

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