FC: Harvey Silverglate on state of civil liberties at end of 2002

[Declan McCullagh <declan@well.com>]

[Forwarded with permission. This appeared in the Boston Phoenix. --Declan]

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The Boston Phoenix
Issue Date: Dec 27-Jan. 2’03 ,  2002
Page 22

Still standin’
Although the ground has rumbled beneath the twin pillars of American civil 
liberties, judicial review and free speech are still intact
BY HARVEY A. SILVERGLATE

DURING WORLD War II, when American citizens of Japanese ancestry challenged 
the president’s authority to relocate them to camps for the duration of 
hostilities, the Supreme Court washed its hands of the matter and gave the 
president, Congress, and the military virtually unfettered authority to do 
what they felt necessary to prosecute the war. Justice Felix Frankfurter, 
the respected constitutional scholar and Harvard Law professor, concluded 
his opinion in one 1944 case with the rather dismissive observation that 
while the Supreme Court might disagree with the president and Congress, 
nevertheless "that is their business, not ours."
Since the September 11 terrorist attacks in New York and Washington, two 
fundamental questions have emerged that will determine whether our system 
of liberty will survive. The most immediate issue, often cast in shorthand 
as "liberty versus security," is whether whatever the president and his 
minions in the Justice and Defense Departments decide to do to us (while 
claiming to be acting for us) will be subject to judicial review. The 
second is whether Americans’ right to free speech  essential to correcting 
abuses of official power that sometimes the courts themselves are hesitant 
to oppose  will survive reasonably intact, or whether speech, too, will be 
viewed as just another expendable obstacle to security.
Although the Bush administration, with the acquiescence of a supine 
Congress, has attacked civil liberties with breathtaking speed and scope, 
so far the prospects for these two crucial areas of the law  review by an 
independent judiciary and free speech  look fairly positive. And that’s 
good not only for the survival of liberty, but also for winning ultimate 
victory over terrorism.
This sobering reality is often ignored by those who opt to restrict liberty 
in order to expand security. But our history demonstrates that it is 
precisely because we are free that we have been able to achieve the 
dynamism necessary to protect ourselves in a distressingly hostile world 
that so often disparages liberty and democracy. Such a point was made 
recently by Massachusetts Institute of Technology president Charles Vest, 
who implored the federal government not to impose draconian restrictions on 
the openness of scientific research and peer dialogue. Openness, he urged 
the administration, is essential for scientific progress, and the latter is 
essential for security.
IT MAY SEEM obvious that the courts should review the activities of the 
other branches of government, since we are accustomed to living under a 
system of divided governmental authority. Under the so-called separation of 
powers, the decisions of the federal courts, especially the Supreme Court, 
constitute "the law of the land" and, taken together, act as a guide to the 
executive and legislative branches, limiting their powers. But the 
principle has come under enormous strain in times of perceived national 
danger. This is such a time. And yet the federal judiciary has asserted 
itself in the face of executive (and sometimes legislative) claims to 
essentially unfettered power in the name of national security in a number 
of cases around the country.
One of the more important assertions of judicial authority over executive 
"anti-terror" actions took place here in Boston. In March, Chief Judge 
William Young of the United States District Court overruled a Department of 
Justice move to impose severe restrictions on the right of alleged "shoe 
bomber" Richard Reid and his lawyers to confer and prepare a defense. 
Young, a Reagan appointee and hardly a "liberal," demonstrated that 
protecting constitutional liberties is a nonpartisan obligation. His 
decision was therefore encouraging on two counts.
There have been other modest rebellions in the ranks of the lower and 
intermediate levels of the federal judiciary. (None of these cases has yet 
reached the Supreme Court.) Even the US Court of Appeals for the Fourth 
Circuit, sitting in Richmond, Virginia, known as the most conservative 
federal court of appeals, did not jump through all the hoops lined up by 
the Department of Justice in the case of Yaser Hamdi. Known as the 
American-born "Cajun Taliban," Hamdi had been caught by American troops in 
Afghanistan last November and moved to the prison camp at Guantánamo Bay, 
Cuba. Hamdi’s lawyer asked that his client, an American citizen designated 
by the president as an "enemy combatant" and therefore supposedly stripped 
of constitutional rights, be allowed to confer with his lawyer. In an 
opinion by the court’s ultra-conservative chief judge, J. Harvie Wilkinson 
III, the three-judge panel refused to throw out Hamdi’s petition, despite 
its observation that the president’s wartime decisions should be given 
"great deference from the court." "With no meaningful judicial review," 
wrote Judge Wilkinson, "any American citizen alleged to be an enemy 
combatant could be detained indefinitely without charge or counsel on the 
government’s say-so." The crucial point made by the Fourth Circuit was that 
it was up to the courts to monitor such exercises of presidential power, 
even if the courts were loath to reverse an executive decision. The court 
pointedly retained jurisdiction to review the government’s conduct.
Much the same point was made in an important decision handed down on 
December 5 by Judge Michael Mukasey of the federal district court in 
Manhattan. Over the dangerously inflated claims of President George W. Bush 
and Attorney General John Ashcroft, Judge Mukasey ruled that Jose Padilla, 
the man suspected of (but not criminally charged with) planning to explode 
a radioactive "dirty bomb" somewhere in the country, who has been held 
incommunicado in a Navy brig since June, does indeed have certain rights. 
He has the right, ruled the court, to meet with a lawyer and to contest the 
president’s claim that he is associated with Al Qaeda, poses a threat to 
national security, and therefore can be held until the termination of 
hostilities in the war on terror. While Judge Mukasey said that the 
government would not have to offer much proof in order to hold Padilla  an 
American citizen captured on American soil and designated by Bush as an 
"enemy combatant" rather than a criminal defendant entitled to a trial  the 
judge affirmed that Padilla had a right to seek review by the courts. The 
administration’s effort to avoid judicial review by refusing to charge 
Padilla with a crime had largely failed.
Thus, while the administration has enjoyed considerable success in 
detaining even citizens on far less evidence than is normally required to 
arrest and charge criminal defendants, it has not been able to act entirely 
without judicial oversight. While the failure of the courts to accord 
fuller constitutional rights to such detainees is troubling, it is at least 
heartening that the executive has not been allowed to operate entirely in 
secret and to hold citizens and non-citizens alike totally incommunicado. 
Testing the legality of one’s incarceration through the courts  the 
so-called privilege of the writ of habeas corpus  has been guaranteed in 
Anglo-American law since the Magna Carta was promulgated in 1215 during the 
reign of King John of England. By and large, our courts have been ruling 
that this right did not die on September 11. There is some cause for modest 
consolation in that.
FREE-SPEECH RIGHTS have also remained more or less intact since September 
11. The public debate over executive incursions into liberty has been 
vigorous  more so, it seems, than the debate in Congress. The 
administration now appears hesitant to exercise official power to quell 
dissent and criticism. Perhaps this reluctance stems from the firestorm 
caused when, in testimony before the Senate Judiciary Committee on December 
6 of last year, Attorney General Ashcroft had the temerity to suggest that 
criticism of the administration’s anti-terror initiatives should be equated 
with giving comfort to America’s enemies  a thinly veiled accusation of 
treason: "To those who pit Americans against immigrants, citizens against 
noncitizens, those who scare peace-loving people with phantoms of lost 
liberty," he railed, "my message is clear: your tactics only aid 
terrorists, for they erode our national unity and diminish our resolve. 
They give ammunition to America’s enemies and pause to America’s friends." 
At first, Judiciary Committee members offered pitifully little criticism of 
these incendiary remarks, but public criticism, even ridicule, was 
profound. One wonders if Ashcroft, though dizzy with the arrogance of 
power, would dare repeat such words now.
This is not to say, of course, that the war on terrorism has not triggered 
calamitous assaults on civil liberties. PostSeptember 11 legislation, 
mainly the infamous USA Patriot Act, enacted only weeks after the terrorist 
attacks by stampeded congressmen (most of whom did not even read the 
mammoth bill), does enormous damage to privacy and a wide swath of rights. 
Rights of privacy are in very serious danger. The government is asserting 
enormous power to snoop into the affairs of ordinary citizens without the 
normal safeguards that the Fourth Amendment, until recently, was thought to 
provide  namely, that a citizen’s privacy was more or less protected unless 
the government could show "probable cause" to justify surveillance. Newly 
enacted secrecy provisions hide much current government activity from 
public and media view. The line that previously separated foreign 
intelligence gathering from domestic criminal law enforcement has been 
significantly blurred. Investigations into political activities, sharply 
curtailed after the Watergate scandal, are back in vogue. And after decades 
of steady progress against the pernicious, if uncodified, practice of 
racial profiling, ethnicity and skin hue have made a resurgence as a basis 
for suspicion, investigation, and even temporary detention by 
law-enforcement officers.
The future of liberty in this most free of all nations is hardly a sure 
bet. However, the two fundamental pillars of liberty, without which no 
other rights are secure, remain alive and fairly healthy: the separation of 
powers  with the judiciary refusing, so far, to defer entirely to the 
executive branch  and the freedom of the American people to voice dissent.
We have a huge and lengthy double-edged battle in front of us: fighting 
terrorism, while opposing the destruction of our free institutions in the 
process. The American people  that is, all of us  have ultimate power over 
the direction of our society. As Supreme Court justice Robert Jackson wrote 
in 1944, when he dissented in one of the Japanese-detention cases: "The 
chief restraint upon those who command the physical forces of the country, 
in the future as in the past, must be their responsibility to the political 
judgments of their contemporaries and to the moral judgments of history." 
The Constitution gives the American people the tools to mold and restrain 
"the political judgments" of those in power. Those tools are a free court 
system and freedom of speech. It is our sacred obligation to use them.

Harvey A. Silverglate is the co-author of The Shadow University: The 
Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999), 
co-director of the Foundation for Individual Rights in Education, and a 
partner in the Boston law firm of Silverglate & Good.




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