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Tuesday, Nov. 12, 2002

Two weeks ago, in New York, John Ashcroft's Justice Department agreed to participate in a public debate on the Administration's anti-terrorism policies since the 9/11 attacks. The event was packed.

I attended hoping to get an idea of whether the Administration could give a coherent justification for its overall approach. Having argued in a prior column that no such justification was evident, I was curious to hear what DOJ would say.

To me, the simple fact that the Administration was agreeing to a public debate was heartening. Since 9/11, DOJ seems to have insisted on secrecy wherever possible. For instance, it has defended the government's blanket closure of 9/11-related immigration proceedings as necessary, despite the fact that individual immigration judges already have the authority to close such proceedings if they choose. I hoped that this debate might signify a turn away from the secrecy policy.

On one side of the debate, justifying the Administration's policies, was Assistant Attorney General Michael Chertoff. On the other was NYU Law School's Professor Stephen J. Schulhofer, an expert on criminal law.

Chertoff did indeed set forth a justification for DOJ's policies, but in the end, it simply raised new, bigger problems. He claimed that DOJ is simply following precedent, and applying it to new situations. War is nothing new, he repeatedly reminded the audience. And the sorts of actions our Administration is taking, he urged, are very similar to those taken in World Wars I and II, and even in the Civil War.

But any fair reading of the prior case law shows we are in new territory now - and DOJ should admit that. This indefinite war is different - and legally and constitutionally different - from those that have preceded it.

Chertoff did an admirable job in defending the policies of his Administration as it shoulders a burden - protecting all of us - that is both enormous and essential. But one important thing was missing from his remarks in the debate: a frank recognition that, while this may be fairly called war, it isn't like any past war, or a war that any of us could ever have imagined.

Pretending Precedent Dictates the Answers

At most, he asserted, these techniques were simply being updated to correspond to changing times, in practical and reasonable ways. For instance, the warrantless wiretap laws have been updated to account for new changes in telephone technology brought on by the Internet.

"But what about Jose Padilla?," asked Schulhofer. An alleged Al Qaeda co-conspirator, Padilla appears to be the first U.S. citizen ever arrested on U.S. soil openly to be denied his constitutional rights - such as the right to an attorney, and the right not to be detained indefinitely without trial. Padilla is being held incommunicado in a military brig, and deemed an "enemy combatant."

Certainly prior precedent does not justify this step. Indeed, suppose that prior to 9/11, one had asked the following question: "A country just arrested one of its citizens, and is holding him incommunicado in a military brig, claiming that as an enemy of the state, he is not entitled to an attorney, a trial, or any other rights. Can you guess which country it is?" The truth is, no one would have guessed the U.S. A good guess might have been China or Saudi Arabia.

Schulhofer contended accordingly that the government's treatment of Padilla is incredible, unacceptable, and unprecedented. Chertoff argued, however, that even in this case, precedent justifies what DOJ has done.

Chertoff cited, for example, the World War II case of Ex Parte Quirin. There, the Supreme Court upheld the government's right to try admitted German agents - including a U.S. citizen - captured on American soil, before special military tribunals.

Quirin, however, simply does not come close to justifying DOJ's treatment of Padilla. Though it might arguably justify trying him before a military tribunal, Schulhofer noted that it hardly supports holding him without any judicial proceeding of any kind.

Chertoff nevertheless suggested the comforting possibility that cases like Padilla's can be set apart, and that we don't need to worry about any nasty permanent changes to the values we cherish. Any changes that are permanent, he contended, are reasonable, and were overdue anyway - like the change to the wiretap laws.

But adjusting the wiretap laws to Internet technology is a far cry from throwing a citizen in a military brig and denying him his rights. The latter step could hardly be characterized as "overdue."

In Truth, We Are In a Profoundly New Situation

Thus, any position on the "rights versus security" dilemma that refers to the legal and national security system that existed at 8:45 a.m. on 9/11 is bound to be wrong. Changing circumstances demand that we develop new ways of understanding the balance between rights and security, and quickly.

We are on completely new ground here - though Bush, Ashcroft, Chertoff, and the other defenders of the Administrations' policies are afraid to admit it. In a sense, they are right to be afraid: If they admitted that they contemplated an unprecedented, permanent re-balancing of our system of rights, they might face a lot more scrutiny and opposition.

Currently, the public may see the legal questions raised by DOJ's actions as essentially squabbles among experts about the meaning of past Supreme Court decisions, in which reasonable minds can differ. The public may feel such debates - like those among doctors or astrophysicists - are best left to the experts.

But if DOJ were to admit that we are far beyond those decisions - in the realm of legal policy, not case law - that would invite the public back into the debate, where it belongs. DOJ should admit the truth: Its programs are the new, new thing, not just the same old thing. And the debate we should be having is not just about Ex Parte Quirin, but about the future too.

As Schulhofer contended, DOJ's "emergency measures" are wide-ranging changes to our criminal justice system, and should be debated as such. At the very least, he pleaded, let's have a straightforward national debate where we can discuss these issues openly and figure out what we think, rather than leaving it to those who "know best."

Broad Secrecy and DOJ's Disingenuousness Only Worsen the Situation

Chertoff replied, in essence, that there's nothing fishy going on. After all, here he was, taking part in a public debate, right? Things haven't changed that much, he insisted - or rather, any changes that have come about are solely due to the terrorists in our midst. Any secrecy, for instance, is because the terrorist threat has created a new need for secrecy.

Consider the recent issue of the blanket closure of 9/11 deportation hearings. Chertoff suggested that the government isn't to blame for this closure; the terrorists are. After all, Al Qaeda's manual includes instructions on how to manipulate the United States criminal justice system: Open deportation proceedings would only give them a chance to do so. Moreover, Al Qaeda is sophisticated enough to use the information from open proceedings against us.

These arguments make some sense, and Chertoff may be right that allowing some or all of these proceedings to be open is too risky to be tolerated. But in the end, these are policy arguments, and they should be recognized as such.

In short, Chertoff may well be right that the hearings' closure is justified - but if so, it won't be because of precedent, but policy. And policy is something the public is entirely qualified to debate and should be debating.

Another War, Like the Ones Before? Or a New Kind of War?

In the end, Chertoff's trump card appeared to be that domestic terrorism prosecutions are part of a war, and should be treated as such, without much concern as to whether these practices comport with the Constitution's demands with regard to criminal prosecutions.

If this seems strange to you, you may be very concerned indeed about Padilla's treatment. However, if you are comfortable with separating criminal justice and the "war on terror," you may be less worried - though you may still wonder if it is reasonable for DOJ to have the sole power to draw the line between domestic "war" and domestic "crime."

Chertoff is apparently comfortable with drawing just this line for us. He explained that there is a "big difference between criminal justice and war," and asserted that Padilla's "capture" was part of our war against terrorism. After all, Padilla had started the day by boarding a plane in Pakistan, allegedly on a mission of destruction.

Chertoff's distinction is meant to reassure us that we can preserve rights even during wartime. The laws of criminal justice and war, respectively, have their roots in totally different parts of the Constitution, he asserted, and they have very different purposes.

The criminal justice system is there to punish wrongdoers, he said, which is why we have trials (and the rights that go along with it). War is different. We're not trying to punish: we're trying to survive. And his implication was clear: when it comes to war, the Executive branch has the first and final say. No judge can question its decisions.

If this felt like any other war, I might not be quite as troubled by this theory. But this war isn't about to end anytime soon. Indeed, I think most of us would be very surprised if it "ended" in our lifetimes. That means that we have to figure out how to live - and maintain our rights, laws, and Constitution - in a world where we are perpetually at war, within our own borders, and in which the distinction between crime and war is blurred as it never has been before in our history.

The truth is that we have little to no guidance as to what our Constitution can mean in such a new context. When Lincoln suspended habeas corpus, he didn't have to contemplate the idea that it would never be revived. If we lose rights now, as a sacrifice to the "war on terrorism," we will have no guarantee that we, or our children, will ever get them back again.

While I may have profound disagreements with some of the substantive techniques being adopted by the Administration, it's the obsessive secrecy and smoke screens that alarm me most.

This country has always tolerated a certain amount of paranoia and secrecy in the cause of waging successful wars - but we have never been willing to tolerate it for long. Will lifelong war mean lifelong government secrecy? When - if ever - will we learn the cases against Padilla and others who have been detained, or be able to see the transcripts of the closed immigration hearings? Will we have our own Hundred Years' War, and throughout it, will we live as if in wartime?

DOJ needs to address these bedevilling questions with openness and candor - not simply to hide behind precedents when everyone knows that this present is very different from our past.

Jake Kreilkamp is a third-year student at New York University Law School. He previously worked, for PEN American Center, on freedom of expression campaigns for harassed and detained writers around the world.

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