The War on Our Rights
Cole, David, The Nation
"Even in times of national emergency--indeed, particularly in such times--it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike." So wrote the US Court of Appeals for the Ninth Circuit on December 18, ruling that foreign nationals held as "enemy combatants" at Guantanamo Bay Naval Base have a right to seek court review of the legality of their detention. The same day, a Court of Appeals on the other coast ruled that the President acting alone lacks authority to detain US citizens as "enemy combatants."
Never before has the Administration suffered such setbacks to its domestic war on terrorism. And the backlash has been growing. On December 3 a Court of Appeals ruled unconstitutional significant portions of the federal statute criminalizing "material support" to designated "terrorist organizations." The statute has been the linchpin of most of the Justice Department's terrorism prosecutions precisely because it does not require proof of individual involvement in, or support of, actual terrorism--only proof of some "support" to a proscribed group. The court held that the prohibitions on providing "personnel" and "training" to such groups impermissibly penalized constitutionally protected activity.
On December 9 the military embarrassingly admitted that it did not even know whether supposedly secret information seized from Capt. James Yee, the former Muslim chaplain at Guantanamo, was classified. Yee had been arrested and detained for more than two months, with much fanfare about national security breaches at Guantanamo, for allegedly taking his own notes off the base in a notebook. Meanwhile, in one of the most vindictive prosecutions in years, the military is prosecuting Yee for committing adultery and having pornographic images on his computer, hardly matters of national security.
For all John Ashcroft's blustering, only one 9/11 terrorism case has actually gone to trial--and the outcome of that trial has now been called into serious question. The case, tried in Detroit, resulted in a mixed verdict this past June. Two defendants were convicted of conspiracy to support some unspecified terrorist act in the unspecified future, and two others were acquitted on the terrorism charges. On December 16 the federal district judge in the case formally admonished Ashcroft for interfering with the trial by violating a gag order and officially praising the government's principal witness while the jury was deliberating. And on December 12 the judge held a hearing on whether to vacate the convictions altogether on the ground that federal prosecutors had failed to disclose evidence that the same witness had lied on the stand. …