Jewish World Review August 16, 2002 / 8 Elul 5762

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Rights matter, even in circus trials | Accused terrorist Zacarias Moussaoui is giving fair trials a bad name. That's probably just what he wants to do and the Bush administration seems to be remarkably eager to let him do it.

The White House is fighting hard for the right to hold American citizens as well as foreigners as "enemy combatants" without charges, bail, access to an attorney or protection against self-incrimination.

A big reason, according to a remarkable story in the August 8 Wall Street Journal, is White House annoyance with Moussaoui's courtroom antics and the aggressive defense that lawyers for accused American Taliban fighter John Walker Lindh mounted.

It is not nice, apparently, to annoy the White House in such matters.

As a result, the Journal reports, the administration is already preparing detention cells for an expansion of the policy under which suspected terrorists Jose Padilla and Yasser Hamdi are being held indefinitely without trial as "enemy combatants."

Expansion of its detention of American citizens depends, of course, on the government's ability to prevail in its current efforts to hold Padilla and Hamdi.

Padilla, an American from Chicago, was arrested in May after allegedly taking part in an al Qaeda plot to detonate a radioactive "dirty bomb" in the United States. A special wing in the facility that houses him in Goose Creek, S.C., could be used to jail about 20 American citizens if the government deems them enemy combatants, the Journal said, quoting an unnamed senior administration official.

Hamdi, born in Louisiana to Saudi parents and therefore a likely American citizen, was captured while fighting with the Taliban in Afghanistan. He is being held in a military brig in Norfolk, Va.

Among ideas being contemplated by the administration are a high-level committee composed of the Attorney General, the Secretary of Defense and the CIA director that would decide which Americans would be locked up, the story said.

Efforts by the Journal, the Washington Post and myself to get a comment or clarification from the White House were not successful.

If anything is clear, it is the administration's desire to use the Hamdi and Padilla cases to establish exclusive power to decide who is an "enemy combatant." So far, the courts have not given the administration much opposition.

The administration has been mostly successful in its efforts to have the four cases handled in conservative southern jurisdictions. In the cases of Lindh and Moussaoui, they hit the jackpot for an unsympathetic jury pool by having the trials held near the sight of the Sept. 11 terrorist attack on the Pentagon.

The government recently refused a federal court's order to turn over documents relating to Hamdi's capture, calling them matters of national security. It is also trying to get Hamdi's public defender removed.

To which a lot of Americans are going to say, so what? And who can blame them. Padilla, Hamdi, Lindh and Moussaoui are a prosecutor's dream when it comes to unsympathetic cases.

Which makes it all the more curious that the administration has shown so little faith in our conventional system of rights and justice, particularly in peacetime. Moussaoui's wackiness is not an argument to deny him a fair trial. It is an argument for the strength of our constitutional system that it can withstand the craziness of others without going crazy itself.

One has to go back to Franklin D. Roosevelt's detention of Japanese Americans during World War II or Abraham Lincoln's suspension of the right of habeas corpus during the Civil War to find comparable White House subversion of fundamental protections against detention without trial.

Both cases involved something we do not have now, which is a declared war. Nor is either example viewed in retrospect as Lincoln or Roosevelt's most honorable achievements.

President Bush's "war on terrorism" -- or "war on terror," as he sometimes calls it -- has no distinct beginning, end, front or rear. It is not likely to end soon, the president tells us, nor with this particular presidential administration.

Government investigators, being human, make mistakes. The recent denials of Steven Hatfill, a germ weapons expert named by the FBI as a "person of interest" in its anthrax terrorism investigation, reminds us of the Richard Jewell and Wen Ho Lee debacles. Government loves to expand its powers when it has unsympathetic suspects.

The lack of certainty and clarity in our war against an easy-to-hate enemy makes it all the more imperative that strict guidelines be set as to how far the power of the executive branch can go in rooting out "evildoers," as the president calls the enemy, in its own citizenry before Congress or the courts jerks its chain.

Otherwise, we give fair trials a bad name.

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