Newspaper article The Christian Science Monitor

Pressure Up to Balance Rights and Security in Terror War ; Federal Judges and the Bar Association Rebuke Secrecy of Detainee Identities

Newspaper article The Christian Science Monitor

Pressure Up to Balance Rights and Security in Terror War ; Federal Judges and the Bar Association Rebuke Secrecy of Detainee Identities

Article excerpt

The Justice Department's post-Sept. 11 detention policies, involving hundreds of people suspected of having links to terrorism, are coming under new attack in court and from the nation's largest association of lawyers.

Two federal judges this month ordered the government to release the names of hundreds detained during the past 11 months in the terror probe, and they criticized treatment of a US citizen held as an enemy combatant. And this week, the American Bar Association (ABA) passed a resolution criticizing the government for holding foreigners without providing access to lawyers or prompt hearings.

The actions represent the the most significant rebuke yet of the balance struck by the executive branch between security and civil liberties in its war on terror.

"The administration has taken the position that it can act against US citizens or noncitizens, whether captured abroad or on US soil, in ways that are unprecedented," says Daniel Kanstroom, a Boston College law professor. The courts are struggling with what the limits of the executive authority are, he says.

America has a long tradition of wartime detentions in the name of national security, best exemplified by the internment of Japanese- Americans during World War II .

But this time, says David Cole, a Georgetown University law professor, "courts are standing up to the administration and not accepting carte blanche assertions of unlimited authority." The reason judges are more willing to second guess the executive branch, he says, is the amorphous nature of the war on terror.

Since Sept. 11, the Justice Department has used multiple tools to hold individuals: criminal charges and immigration law violations as well as material witness statutes intended to hold people who may have knowledge of a crime. In addition, two US citizens are being held entirely outside the criminal justice system at a military jail as military combatants.

The Justice Department has refused to release information about most detainees - claiming that even revealing their names could compromise the investigation by tipping off terrorists or making detainees reluctant to help. But that argument didn't persuade Federal District Court Judge Gladys Kessler who ruled earlier this month that the Justice Department must release detainees' names. …

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