Some of the Justice Department's most aggressive tactics in its legal war against terror are getting knocked down in court. Experts suggest that through recent court decisions, the judiciary is recalibrating the balance between government secrecy and individual rights a balance set inthe massive federal investigation of the Sept. 11 attacks.
In recent weeks, judges have ordered the government to release the names of those detained on immigration charges, opened deportation hearings to the public, and ruled that suspects can't be held as material witnesses during grand-jury investigations.
"The federal judiciary is displaying that it's perfectly capable of responding in a balanced ... manner that permits investigations and permits prosecutions but still preserves our rights," says Irwin Schwartz, president of the National Association of Criminal Defense Attorneys.
And new challenges continue to be filed by detainees' attorneys and civil-liberties groups. Last week, the recording of jailhouse conversations between terror suspects and their attorneys came under attack in a lawsuit filed in Washington. A broader class-action lawsuit on behalf of thosedetained by the Immigration and Naturalization Service was filed last month, charging that they are held in an "unreasonable and excessively harsh condition," with verbal abuse, beatings, and denial of their right to religious practice.
"[Government officials use] the immigration laws as a pretext for circumventing constitutional rights and, in so doing, they have violated those rights on a massive scale," says Bill Goodman, legal director of The Center for Constitutional Rights, which filed the lawsuit.
As part of its terror investigation, the federal government detained more than 1,200 people of mostly Middle Eastern and Muslim background on immigration law violations or as material witnesses. Neither form of custody affords the legal protections given criminal defendants.
The Justice Department has released little information about those detainees, on the grounds that doing so could give important signals to terrorist groups. Even the number of detainees last given as 327 in February has been closely guarded.
But judges have begun to chip away at the government's wall of secrecy. In the first decision of its kind, a New Jersey judge called secret detentions "odious to a democratic society," ordering the names of local detainees released.
A federal judge in Detroit then ordered the government to open a deportation hearing for Rabih Haddad, leader of an Illinois-based Islamic charity. The court also released thousands of pages of transcripts from the case. Government officials link Mr. Haddad to groups associated with Al Qaeda, but have charged him only with overstaying his visa.
The latest challenge focuses on a Justice Department rule authorizing the taping of conversations between terror suspects and their attorneys. New York attorney Frederick Cohn filed the suit on behalf of his client, Mohammed Rashed Daoud al-Owhali, sentenced to life in prison for his role in the 1998 bombing of the US Embassy in Kenya.
Mr. Cohn, who is handling Mr. Owhali's appeal, says the possibility that their phone conversations may be taped prevents discussion of anything more serious than his client's living conditions. Cohn admits there's a "natural tension" between the rights of defendants and the government's interest in preventing attacks. "It would be nice to say the aim of the government is illegitimate, but it's not," he says. "They want to save lives and property and defend the country. Unfortunately, they're using a process we believe is impermissible."
Overall, critics say too many people with little or no connection to terrorism are ensnared. Almost all of the more than 100 people indicted on criminal charges since last fall as a result of the terror investigation are being prosecuted for minor crimes, such as wire fraud or fake identifications.
Osama Awadallah, a 21-year-old Jordanian student in San Diego, was charged with perjury for lying to a grand jury when he said he couldn't recall the name of one of the Sept. 11 hijackers a name prosecutors claimed he'd written in a notebook.
When he testified, Awadallah had been detained as a material witness for three weeks and treated as a high-security inmate. But federal judge Shira Scheindlin ruled that he was unlawfully detained. "A proper respect for the laws that Congress does enact as well as the inalienable right to liberty prohibits this Court from rewriting the law, no matter how exigent the circumstances," she wrote in her April 30 opinion.
Still, the recent rulings haven't stopped the Justice Department's aggressive pursuit of terrorist connections. Attorney General John Ashcroft called Judge Scheindlin's decision "an anomaly," defending the use of material-witness warrants. And despite the order for release of detainees' names, the INS prohibited state and local governments from providing such information.