Changing Rules and Undoing the Constitution
Published on Saturday, February 15, 2003 by the Boulder Daily Camera
"Changing Rules and Undoing the Constitution"
by Christopher Brauchli
The People's Court (5/3/34) was set up to try cases of treason (which was
given an extremely wide definition); the proceedings were made secret and there
was no appeal except to the Fuhrer.
— Encyclopedia of World History
There are two ways to skin a cat. We've always known that but the Justice Department keeps coming up with new ways to remind us. One way is to change the forum. That only affects one person. The other way is to change the rules. That affects us all. For an example of the first we turn again to Zacarias Moussaoui.
Mr. Moussaoui is showing us how the powerful Justice Department under the leadership of Attorney General John Ashcroft will, one way or the other, win. When Mr. Ashcroft thinks he's fighting terrorists, no holds are barred. We have been following in Mr. Moussaoui's footsteps because his experience teaches us all something about how, in the future, justice may be meted out in the United States.
Mr. Moussaoui is suspected of involvement in the events of Sept. 11. He is not an American citizen. However, he was arrested in the United States and is being tried in an American civilian court. In order to prepare his defense, Mr. Moussaoui's lawyers want to talk with a witness now in detention. The government doesn't want that to happen even though, in criminal cases that were brought in the good old days, defendants were permitted to locate and work with witnesses who could help in their defense. Judge Leonie Brinkema, the judge hearing the case , entered an order allowing Mr. Moussaoui's lawyers to question a captured al-Qaida suspect, Ramzi bin al-Shibh.
Applying old rules, the judge concluded that a fair trial demanded that the interview proceed. The government believes a fair trial should take a back seat to its wish to continue interrogating the prospective witness. It fears that if Mr. Bin al-Shibh is interviewed, he might divulge information about al-Qaida that the government wants to keep secret. Mr. Ashcroft plans to appeal the order mandating the interview and, if he loses, the Justice Department will turn Mr. Moussaoui over to the Defense Department for a military trial. The good thing about that is that troublesome constitutional rights that obtain in civilian courts do not obtain in military tribunals. It should be easy to get a conviction before such a tribunal, and that, of course, is the whole reason for having a trial.
At about the same time as the judge's order was being entered, the Justice Department came up with a proposal that, if enacted, will make us all much safer than we are now. In fact, gradually we will become as safe as people were in the Soviet Union when Josef Stalin was in power. It's hard to get any safer than that.
The new piece of legislation is called the Domestic Security Enhancement Act of 2003. Although it sounds threatening, it is, in fact, utterly benign. As Justice Department spokeswoman, Barabara Comstock said: "The department's deliberations are always undertaken with the strongest commitment to our Constitution and civil liberties." By referring to "our" Constitution one might, mistakenly, assume she is referring to the same Constitution that the rest of us would be referring to. That may not in fact be the case. Here are some of the things the new act does.
It limits public disclosure of information relating to terrorism investigations by enhancing the Justice Department's ability to deny citizens' requests through the Freedom of Information Act. It sets up a DNA database that would include samples from people associated with suspected terrorist groups and citizens suspected of certain crimes. It terminates state law-enforcement decrees that limit the amount of information police can gather about individuals and organizations.
In order to give us all greater peace of mind, it prohibits the Environmental Protection Agency from distributing "worst-case scenario" information to the public about a nearby private company's use of chemicals. That will not only avoid alerting terrorists to the possibility of attacking such sites but seems guaranteed to avoid the kinds of protests by neighbors which have proved so disruptive to company officials and law enforcement officials. It gives legs to the oft-cited notion that what you don't know can't hurt you.
Another neat feature of the bill is that it prohibits disclosure of any information about people who are detained as terrorist suspects. Thus, if a threatening looking individual robs a bank, that person can be arrested as a terrorist and no one will be the wiser for his/her detention. In addition, a new database of "suspected terrorists" will be created. People lucky enough to get in that database will, if arrested, have to prove why they should be released on bail. Under the old rules, people who were arrested had a right to bail except under certain limited circumstances. The new act would permit the deportation of U.S. citizens who become members of, or help terrorist groups. That will enable the government to deport citizens who have contributed to non-profit organizations, even unwittingly, which are believed to funnel money to terrorist groups abroad.
It's a whole new ball game for civil liberties. John Ashcroft is winning — the country is losing.
Christopher Brauchli is a Boulder lawyer and and writes a weekly column for the Knight Ridder news service. He can be reached at brauchli.56@post.harvard.edu
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