The War Comes Back Home
Can Attorney General John Ashcroft fight terrorism on our shores without injuring freedoms that are sacred to the American way of life?

Standing on the deck of the U.S.S. Abraham Lincoln last week, George W. Bush declared the Iraq war largely over. It was a majestic occasion even if you knew that its majesty had been carefully stage-managed. The central purpose of all the pageantry was to soothe us: We're winning the war on terrorism, the worst is over, let's get back to work.

But on the very day that President Bush was declaring provisional victory over Baghdad, a notable skirmish in another war was quietly under way in Washington. This is a war without daily briefings by self-assured Bush men and women. It's the war over how to make America safer without turning it into a police state. And this war is far from over.

As the demands of security bump up against the safeguards of personal liberty, clashes have been breaking out around the country over where to draw the line. Nearly 100 towns and counties, plus the state of Hawaii, have passed resolutions condemning the usa Patriot Act, the post-9/11 law that greatly expanded federal powers to conduct the war on terrorism.

Not so fast, says Assistant Attorney General Viet Dinh, who had a large part in shaping the usa Patriot Act. "Security is the means by which we achieve our fundamental freedoms." Dinh rejects the idea that the Justice Department is doing a balancing act because, he says, the department is making sure that no civil liberties are violated.

Here are some of the questions that are testing that vigilance:

WHAT RIGHTS FOR ALIENS?

On March 1, immigration control was transferred to the new Department of Homeland Security. One of the department's first steps was to announce that henceforth anyone arriving from one of 33 mostly Muslim nations and seeking asylum in the U.S. would be automatically jailed while the asylum application was pending. (Asylum is a form of protection that allows foreigners to remain here, provided they meet the definition of a refugee.) The government could point to a few terrorists who had entered the U.S. under the guise of asylum seeker, notably Abdel Rahman, now in prison for plotting attacks on the United Nations and other targets. But asylum applications usually take sIX months or more to process, and incarceration is a fate previously reserved for applicants who might be a risk to the community or might disappear.

WHO DESERVES A LAWYER?

Time and again, people rounded up after 9/11 have not been permitted to talk to lawyers. Civil libertarians are especially uneasy about the legal no-man's land at the U.S. naval base at Guantanamo Bay, Cuba, where more than 600 captives from the war in Afghanistan are still being held and have not been accorded prisoner-of-war status. The government justifies this on the grounds that it needs to question them, but most of the interrogations are over. The rules governing military tribunals allow the detainees at Guantanamo to have a free military lawyer or a civilian lawyer as long as the government doesn't have to pay for representation. But civilian lawyers willing to work for the detainees for free complain that the Pentagon has not allowed them to contact potential clients.

WHAT IF THE ACCUSER IS HIDDEN?

In March two men, Irfan Kamran, 32, and Sajjad Nasser, 28, were held in prison, charged with harboring an illegal immigrant, while the FBI tried to determine whether they had links to al-Qaeda. Kamran, a naturalized American citizen, and Nasser, a Pakistani, are cousins who had been living legally in the U.S. for years but returned occasionally to their native country. The government contends that in the summer of 2001 Nasser attended a training camp in Pakistan run by the Army of Muhammad, a group the U.S. believes is linked to al-Qaeda. Nasser's lawyer admits that he spent several days there but says he left after he realized it was too strenuous. He also insists that the Army of Muhammad is not aimed at the U.S. but is a militia devoted to ousting India from Kashmir, territory that Pakistan also claims.

As for Kamran, prosecutors say he told a "confidential source" that he planned to join al-Qaeda and fight the U.S. Kamran's lawyer denies that, saying the FBI claim rests upon a witness it refuses to identify. On April 8, Federal Judge Lewis T. Babcock ordered Kamran's and Nasser's release, ruling that the government had failed to show that they were dangerous. At that point, prosecutors successfully moved to detain Nasser again by hitting him with another immigration charge.

WHEN CITIZENS ARE BRANDED THE ENEMY

The post-9/11 episode that worries civil libertarians the most involves dirty-bomb suspect José Padilla, an American citizen who allegedly met with senior al-Qaeda operatives in a plot to detonate a radiological device somewhere in the U.S. Arrested last year at Chicago's O'Hare International Airport, Padilla was classified as an enemy combatant and sent to a naval prison in South Carolina, where he has been denied access to a lawyer. According to government filings, Padilla has been undergoing months of interrogation that could be compromised if lawyers were allowed into the process.

A federal judge in Manhattan has ruled that Padilla must be allowed to meet with his lawyers in order to challenge his enemy-combatant status. But the government maintains that no court has the authority to review that classification.

The case could wind up in the Supreme Court. "To say that the Executive Branch on its own determination can pick somebody up and hold them indefinitely without any procedure or access to a court or to counsel or the press is an absolutely staggering thought," says Stephen Schulhofer, a law professor at New York University and the author of The Enemy Within, a book produced for the Century Foundation, that examines post-9/11 questions of civil liberty. The Attorney General insists that misses the larger point. "There are no civil liberties that are more important than the right to be uninjured and to be able to live in freedom," Ashcroft recently told TIME.

The dilemma is that reasonable people can agree with both arguments. But no one knows whether such changes will make us safer or undermine constitutional protections–or both. On the deck of the U.S.S. Abraham Lincoln last week, when the President said the war on terrorism would be a fight that lasts years, he should have added that some of its most pitched battles will be fought in our courts. And in our own divided hearts and minds.

—from TIME, May 12, 2003

Questions

1. Describe the new policy on aliens seeking asylum in the U.S.

2. Who makes the determination that someone be classified an "enemy combatant" and denied access to a lawyer?