This kind of policy scares the hell out of me. In a nutshell, what it means is that if you were mistakenly thought to be a terrorist for some bizarre reason, you could basically disappear off the face of the earth and be denied the right to contact a lawyer, your family, or anyone else. (Yes — even if you are a U.S. citizen!)
Of course, this can’t be legal. But how can it ever be challenged if the prospective challengers aren’t allowed to exercise any of their rights?
In Terror War, 2nd Track for Suspects — Those Designated ‘Combatants’ Lose Legal Protections
By Charles Lane for the Washington Post.
For example, under authority it already has or is asserting in court cases, the administration, with approval of the special Foreign Intelligence Surveillance Court, could order a clandestine search of a U.S. citizen’s home and, based on the information gathered, secretly declare the citizen an enemy combatant, to be held indefinitely at a U.S. military base. Courts would have very limited authority to second-guess the detention, to the extent that they were aware of it.
Administration officials, noting that they have chosen to prosecute suspected Taliban member John Walker Lindh, “shoe bomber” Richard Reid and alleged Sept. 11 conspirator Zacarias Moussaoui in ordinary federal courts, say the parallel system is meant to be used selectively, as a complement to conventional processes, not as a substitute. But, they say, the parallel system is necessary because terrorism is a form of war as well as a form of crime, and it must not only be punished after incidents occur, but also prevented and disrupted through the gathering of timely intelligence.
“I wouldn’t call it an alternative system,” said an administration official who has helped devise the legal response to the terrorist attacks of Sept. 11, 2001. “But it is different than the criminal procedure system we all know and love. It’s a separate track for people we catch in the war.”
At least one American has been shifted from the ordinary legal system into the parallel one: alleged al Qaeda “dirty bomb” plotter Jose Padilla, who is being held at a Navy brig, without the right to communicate with a lawyer or anyone else. U.S. officials have told the courts that they can detain and interrogate him until the executive branch declares an end to the war against terrorism.
The final outlines of this parallel system will be known only after the courts, including probably the Supreme Court, have settled a variety of issues being litigated. But the prospect of such a system has triggered a fierce debate.
Civil libertarians accuse the Bush administration of an executive-branch power grab that will erode the rights and freedoms that terrorists are trying to destroy — and that were enhanced only recently in response to abuses during the civil rights era, Vietnam and Watergate.
“They are trying to embed in law a vast expansion of executive authority with no judicial oversight in the name of national security,” said Kate Martin, director of the Center for National Security Studies, a Washington-based nonprofit group that has challenged the administration approach in court. “This is more tied to statutory legal authority than J. Edgar Hoover’s political spying, but that may make it more dangerous. You could have the law serving as a vehicle for all kinds of abuses.”
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