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On Law: Civil liberty in an age of terror

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, Dec. 6 (UPI) -- To say that the Bush administration has engaged in a massive deprivation of civil liberties in the name of national security is a gross exaggeration.

But at the very least, administration officials have been dancing at the edge of the precipice.

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Whether they actually plunge into the abyss and earn a special place of warning in U.S. history depends on a number of factors.

First of all, to be fair, nothing that the administration has done since the Sept. 11, 2001, terror attacks is without historical precedent in a time of war.

Abraham Lincoln, after all, suspended the right of habeas corpus -- in effect, constitutional review of detentions by the federal courts -- during the Civil War. The Bush administration has proposed nothing so unconstitutional.

Harry Truman and Dwight Eisenhower freely used hundreds of military commissions to try defendants in occupied Germany, even when those defendants were U.S. citizens. The Bush administration has authorized, but so far has not convened, military tribunals to try non-U.S. citizens as terrorist suspects away from American soil.

Most tellingly, the actions the Bush administration has taken so far have been demonstrably motivated by a desire to protect the American public and prevent a repeat of the attacks, not to suppress political dissent.

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On that front alone, the current administration deserves higher marks than the Nixon regime.

Still, civil libertarians are uneasy.

Most of the concern focuses on aliens. The administration, through the Justice Department and Attorney General John Ashcroft, has taken aliens into custody, held them without charge and kicked them out of the country.

Media critics of the administration have proved adept in depicting the plight of those expelled, but have usually disregarded the fact that the aliens were here illegally in the first place.

While aliens have felt the brunt of the Justice Department's security crackdown since the terror attacks, the general American public has barely felt the effects of the new security measures. But the potential for abuse remains.

The most obvious area of concern is in the administration's assertion that "enemy combatants" designated by the president can be held without access to the courts.

An analysis in The Washington Post earlier this month speculated that the assertion of that power, combined with the new authority under the USA Patriot Act to share information between prosecutors and intelligence officers, could lead to some distinctly ominous consequences:

Under the looser civil liberty guidelines that apply to a national security investigation, the government could win approval from the Foreign Intelligence Surveillance Act court to spy on a U.S. citizen, declare that citizen an "enemy combatant" and then hold him indefinitely without trial.

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Well, not quite. It just doesn't work that way.

First of all, the FISA court has some rather strict guidelines under law, and has to be convinced that a U.S. citizen is acting on behalf of a foreign power against the interests of the United States, before it will approve surveillance.

Second, unlike the power to pardon, the president's authority to declare someone an "enemy combatant" is not absolute.

Finally, the U.S. courts have simply refused government requests not to interfere. Even if a court accepts the combatant designation, it still must rule on jurisdiction on a case by case basis.

The most recent example came this week in the case of Jose Padilla.

The Brooklyn-born Padilla was arrested in May as he tried to enter the country through O'Hare International Airport in Chicago.

The FBI said Padilla had received training in al Qaida camps in Pakistan, and was conspiring with terrorists to detonate a radioactive "dirty" bomb in an unnamed American city.

Padilla was transferred from Justice Department to Defense Department custody, and has since been kept without charge as an "enemy combatant" in a Navy brig in South Carolina.

The government has insisted that Padilla does not have the right to a lawyer and the federal courts have no business in sticking their collective nose into the Padilla case.

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The outcome of that stance, of course, was predictable.

The government has had to spend untold work-hours and taxpayer money justifying its actions regarding Padilla before a federal judge in New York.

This week, the judge ruled that the president does have the authority under law and the Constitution to detain enemy combatants, but that Padilla also has the right to an attorney in attempt to prove he should not be detained.

The judge also took jurisdiction in the case and refused a government request that the matter be transferred to a federal court in South Carolina.

A status hearing in the case is set for Dec. 30.

In the end, the administration will have to prove that Padilla took up arms against this country, and will have to prove it to the satisfaction of a court.

In other words, the government will have to do what it claims it does not have to do: Submit "enemy combatant" designations to the review of the courts, even if, in the end, a judge decides in individual cases that the federal courts have no jurisdiction.

Not all administrations have recognized the authority of the courts in constitutional matters.

When the nation's greatest chief justice, John Marshall, tried to protect the Cherokee in Georgia with two rulings in the early 1830s, Andrew Jackson declared that Marshall's declaring a ruling was one thing but, "now let him enforce it."

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As long as the Bush administration and future administrations recognize the supremacy of the courts, the United States has a decent chance of retaining a government of law, not a government of men.

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