The Bush administration is developing a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.
The elements of this new system are already familiar from President Bush's orders and his aides' policy statements and legal briefs: indefinite military detention for those designated "enemy combatants," liberal use of "material witness" warrants, counterintelligence-style wiretaps and searches led by law enforcement officials and, for noncitizens, trial by military commissions or deportation after strictly closed hearings.
Only now, however, is it becoming clear how these elements could ultimately interact.
For example, under authority it already has or is asserting in court cases, the administration, with approval of the special Foreign Intelligence Surveillance Court, couldorder 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
Well, I for one will pen yet another Tech Central Station column on the inconvenient infringements of post- 9/11 airline security. This civil libertarian isn't going to take this lying down.
In a recent legal brief, Olson argued that the detention of people such as Hamdi or Padilla as enemy combatants is "critical to gathering intelligence in connection with the overall war effort."
Nor is there any requirement that the executive branch spell out its criteria for determining who qualifies as an enemy combatant, Olson argues.
"There won't be 10 rules that trigger this or 10 rules that end this," Olson said in the interview. "There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances."
The federal courts have yet to deliver a definitive judgment on the question. A federal district judge in Virginia, Robert G. Doumar, was sharply critical of the administration, insisting that Hamdi be permitted to consult an attorney. But he was partially overruled by the U.S. Court of Appeals for the 4th Circuit, based in Richmond.
Hillary tried to warn ya..