File Under: Is this Russia?

I direct you to an editorial in the Washington Post this morning (via Kos, with more at Talk Left) regarding the imprisonment of Ahmed Abu Ali, a U.S. citizen arrested in Saudi Arabia in 2003. Apparently, attorneys from the Justice Department don't want to tell anyone, including the judge involved, why they're holding Ali, nor show any evidence that should require his continued imprisonment:

"Attorneys for the Justice Department appeared before a federal judge in Washington this month and asked him to dismiss a lawsuit over the detention of a U.S. citizen, basing their request not merely on secret evidence but also on secret legal arguments. The government contends that the legal theory by which it would defend its behavior should be immune from debate in court. This position is alien to the history and premise of Anglo-American jurisprudence, which assumes that opposing lawyers will challenge one another's arguments."

Now, I have no problem detaining suspected terrorists, holding them, questioning them, and extracting from them what we can if it's helpful in tracking down more terrorists. But this kind of situation is really beyond the pale. We have an American citizen who is being denied the rights allowed him by not only the Constitution, but also the historical legacy of western legal theory. The fact that attorneys for the government are both citing "secret evidence" for holding a citizen without charges and the judge in the matter is actually seriously considering the case (rather than throwing it out and releasing the man, unless the evidence is brought to light) strikes me as quite dangerous and potentially devastating to the standards of due process.

There are many prisoners still being held by the U.S. government in places all over the world. These individuals very well may be guilty of terrorism, or even terrorism-related-activities, but the lack of convictions (forget the lack of trials, even), implies that our government doesn't really have anything to pin them with in the first place. Arguments that they may possess vital information fade now that they've been held for years. Afterall, how up to date could this info be if they've been locked up in Gitmo for the last 2-3 years without so much as a visit with an attorney?

In this case, the prisoner has an attorney, but the government won't disclose any evidence against him because it has deemed this information "secret". So the Justice attorneys are citing a legal argument they won't divulge in order to convince the judge to dismiss the case brought against them for holding the defendant.

"Judge Bates is cautious and generally deferential to government concerns. Yet he was evidently disturbed by this argument, at one point asking whether the government could identify "any case in which . . . even the legal theory for dismissal is not known to the other side?" The government could not.

This kind of argument is historically unprecedented and incredibly alarming. A core tenet of jurisprudence in the United States rests in the concept that a defendant has the right to face his accusers in court and challenge their evidence against him. In this case, a U.S. citizen has spent the last 20 months in a Saudi prison without even being charged with a crime. He is suing not for his release, but for the right to understand the reasons for his detention, and examine the evidence against him. He is asking for the basic right to confront his accuser and answer any charges brought against him (which are yet forthcoming). To set a precedent of detention without charge and the witholding of evidence as we have in this case is to betray the core philosophy of western law itself.

Under no circumstances should we ever fool ourselves into thinking that we have to become more like our enemies in order to defeat them. The more we turn towards the gestapo tactics seen in Guantanamo and Abu Graihb, the more our enemies are winning. If we give up our democratic traditions for the cause of fighting terrorism, we have already lost the war, because we will have become what we are fighting.

The pressure to remove any semblance of judicial review from executive action, and also indict the attorneys who choose to defend suspected terrorists points towards a move away from traditional western legal precedent, and towards an environment of uncertainty and fear when it comes to receiving a fair trial, free of intimidation and the kind of witch-hunting that characterized the McCarthy era. But it seems that that's what the right wing in this country wants. It also means we have to fight back as hard as ever. I don't want to lose the country I love to hate-mongers, fear peddlers, and "patriots" who smear as traitors those who choose to stand up and question their government.