The secret society - part 2
One of those members is Rep. James Sensenbrenner, the Wisconsin Republican who chairs the House Judiciary Committee. Last summer, Sensenbrenner and Democratic Rep. John Conyers Jr. asked the Justice Department to provide the committee with basic statistical information about its use of its PATRIOT Act tools. The department stalled so long that Sensenbrenner eventually threatened to issue subpoenas and to vote against renewal of the PATRIOT Act when it expires in 2005 pursuant to the "sunset provision" written into the act. In an interview with editors of the Milwaukee Journal Sentinel, Sensenbrenner said he told Ashcroft: "If you want to play, 'I've got a secret,' good luck getting the PATRIOT Act extended. Because if you've got bipartisan anger in the Congress, the sunset will come and go and the PATRIOT Act disappears."
Shortly thereafter, the Justice Department provided answers to the committee's questions. In an interview with Salon last week, Sensenbrenner aide Jeff Lungren struck a conciliatory tone. Sensenbrenner and Ashcroft now meet for lunch on a regular basis, he said, and any problems they may have had were the result of the natural "tension" between an executive department and the congressional committee that oversees it.
Still, Lungren agreed that keeping the five-year sunset provision in the PATRIOT Act is "critical" to understanding how the act is being used and whether any "tweaks or changes" need to be made.
At the time of the PATRIOT Act's passage, many members of Congress said they wouldn't have voted for the act without the sunset provision. Leahy said at the time that the provision was key to ensuring oversight of the Justice Department. He reiterated that view in a written statement issued earlier this month, saying that Hatch's proposal to make the PATRIOT Act permanent now would rob Congress of what "little leverage" it has in obtaining information from the Justice Department and would "give up the ghost" on any further congressional oversight.
"Oversight is how we know how well or how poorly these and other laws work in practice, and the sunset conditions give Congress and the American people at least a little leverage in getting answers," Leahy said. "History shows that a government that doesn't want oversight often is a government that has something to hide."
Some in the civil liberties community see the oversight efforts being made by Leahy, Grassley and Sen. Arlen Specter, R-Penn., as a resurgence of congressional authority after a period of acquiescence to administration demands. They view the Hatch proposal as a check on that trend. "It's a frontal challenge," said the FAS's Aftergood. "It's a test of the backbone that we're beginning to see. And if it works, congressional oversight will be just a courtesy extended by the executive branch, with no rigor or mandatory character to it."
To be sure, the administration, at times with the help of compliant federal courts, has already undercut the ability of Congress -- and the public more generally -- to oversee the government's activities, both in the war on terror and otherwise.
In October 2001, Attorney General John Ashcroft changed the baseline government policy on Freedom of Information Act requests from one favoring disclosure to one favoring secrecy. Under Clinton Attorney General Janet Reno, federal agencies were to comply with Freedom of Information Act requests unless there was a real risk of "foreseeable harm" in doing so. But under the Ashcroft policy, agencies are to refuse to disclose information sought under FOIA if there is any "sound legal basis" for doing so.
In November 2001, President Bush signed an executive order granting himself the power to veto all requests to open the records of former presidents, even if a former president wants his records released. Under the Presidential Records Act -- like FOIA, passed in the wake of Watergate -- most records of a president are to be made available for public review 12 years after the president leaves office. Bush's executive order effectively gutted the Presidential Records Act and allowed him to deny public access to records from the Reagan administration -- including records related to his father's role as vice president.
Groups of historians and journalists have filed suit over the executive order in the U.S. District Court for the District of Columbia. The case is still pending. But if recent decisions from that court are any guide, the historians and journalists should not count on reviewing Reagan-era documents anytime soon.
Earlier this month, the District of Columbia court held that the Bush administration could refuse to release records related to President Clinton's last-minute pardons of Marc Rich and others based upon Bush's assertion of a "presidential communications privilege" over the records. While Bush likely had no interest in keeping Clinton's deliberation's secret, Bush's arguments before the court -- and the court's ultimate ruling in his favor -- pave the way for him to keep his own pardon deliberations secret.
And in December, the same court dismissed a lawsuit in which the General Accounting Office attempted to obtain the identities of energy industry officials and others with whom Vice President Cheney met in the course of developing the administration's energy policy.
In his talk with newspaper editors earlier this month, Cheney trumpeted the court’s decision as a ruling that the administration had acted "in an appropriate way" in keeping the information secret. "That’s a lie," said Tien of the EFF. Having held that the federal official who oversees the GAO lacks legal standing to bring such a lawsuit, the court had no occasion to opine about the administration’s actions one way or the other.
And the legal disputes over Cheney’s energy task force are far from over. On Thursday, two federal appellate judges lashed out at Justice Department lawyers trying to persuade the U.S. Court of Appeals for the District of Columbia Circuit to prevent Judicial Watch and the Sierra Club from reviewing some of the task force’s records. But it’s no surprise that the earlier decision in the GAO case stands out for Cheney. A decision that the administration was right would have been a good thing; a decision saying the courts have no business hearing such a challenge was even better.
The D.C. Circuit -- usually considered the "second-highest" court in the land -- handed the administration just such a victory in its war on terror earlier this year. In a decision that dumbfounded civil libertarians, the D.C. Circuit held that detainees in U.S. military custody at Guantánamo Bay have no right to challenge their confinement in U.S. courts. So long as the detainees are non-citizens who were captured outside the United States during some sort of military operation and are now being held outside the United States, the courts of the United States "are not open to them."
If the decision stands, the administration will be free to do whatever it likes with the detainees -- without any fear that a court is going to stand in the way or cause it any problems later. Thus, the detainees' only hope is that the executive branch that holds them decides to treat them justly. There is no other check, no other balance.
The detainees' case is one of several from the war on terror that may be decided by the Supreme Court in the coming year or so. In another, the ACLU, on behalf of a group of New Jersey newspapers, is challenging the Justice Department's decision to close all immigration proceedings deemed by the Justice Department to be "of interest" to its terrorism investigations. One court of appeal has upheld the practice; another has condemned it. Given the split among the lower courts, it is likely the Supreme Court will agree to take the case and decide the issue.
But like other federal courts, the Supreme Court is likely to grant the administration substantial leeway in prosecuting the war on terror as it sees fit. In fact, the Supreme Court has already begun to do so. Last month, the court refused to hear the ACLU's challenge to the Justice Department's practices under the Foreign Intelligence Surveillance Act -- in particular, its failure to maintain a "wall" between domestic police activities and spying activities under FISA.
In his 1998 book on civil liberties during wartime, "All the Laws But One," Chief Justice William Rehnquist observed that courts typically defer to the executive branch during wartime but then pull in the reins as the immediacy of war subsides. It is not clear how that tendency may play out in the potentially unending war on terror. But even if it does -- that is, even if the courts begin to demand accountability from the executive branch -- the Bush administration still has a trump card: It can take its business elsewhere.
The trial judge presiding over the case of Zacarias Moussaoui -- the only person charged in the United States so far in connection with the Sept. 11 attacks -- has raised questions about whether Moussaoui can be tried in the shroud of secrecy the Justice Department has wrapped around the case. She has also held that Moussaoui's lawyers are entitled to interview a high-ranking al-Qaida official currently in U.S. custody, an interview the Justice Department vigorously opposes.
The Justice Department has insisted that Moussaoui can be tried fairly while preserving government secrets, and it has challenged the ruling on the al-Qaida interview in an appeal now pending before the notoriously conservative U.S. Court of Appeals for the Fourth Circuit. But if the trial judge ultimately rules that the Justice Department has to give up some of its secrets to try Moussaoui -- or if the Fourth Circuit agrees that the al-Qaida interview must go forward -- there are signs that the Justice Department will simply dismiss the case and file new charges against Moussaoui before a military tribunal.
President Bush issued an executive order in November 2001 establishing such tribunals. In trials before them, he said, the rights guaranteed to defendants in regular criminal trials -- rights set forth in the Constitution, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence -- are "not practicable" and therefore do not apply. If the administration chooses to try Moussaoui before such a tribunal, the judicial branch of government will have been removed from the equation altogether.
With the Domestic Security Act of 2003 -- the draft legislation dubbed "PATRIOT Act II" -- the administration is apparently contemplating other ways in which it might avoid the inconvenience of operating in the public eye or answering to the federal courts.
The draft legislation, prepared by the Justice Department but not yet proposed to Congress, includes provisions that would allow federal agents to keep secret the names of individuals arrested in investigations related to "international terrorism"; expand the circumstances under which agents could conduct searches and wiretaps without warrants; and allow the attorney general to deport resident aliens in certain circumstances without any possibility of judicial review.
With trials before military tribunals and legislation like PATRIOT Act II on the horizon, it may be that Mike Hawash should be considered lucky. Having worked for years in the computer industry, he has friends who have launched a Web site to draw attention to his plight. He has a lawyer, he has the backing of the ACLU, and he has the attention of at least one U.S. senator. Still, he has the Bush administration's Justice Department aligned against him, and that cannot be a comfortable place to be.
"Since Sept. 11, the Justice Department has shown a contempt for due process," said David Fidanque, the executive director of the ACLU in Oregon, which is watching Hawash's case closely. "Secrecy is paramount to them, and the Constitution is an obstacle to overcome."
Last week, the court in Hawash's case held that the Justice Department can keep him in custody at least until the end of the month so that it will have time to take his deposition or have him testify before a grand jury. While portions of the court's decision were made public, the reasons for the Justice Department's interest in him -- and the purported factual basis for keeping him in custody -- were not.
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