This essay is an entry in my occasional series, Year Zero, dealing with the impact on Americans, New Yorkers, and me personally of the September 11 attacks.

Democracy is Leaking

by Jonathan Wallace

In the naval brig in Norfolk, Virginia sits a man named Yaser Esam Hamdi. A resident of Saudi Arabia, Hamdi travelled to Afghanistan and joined the Taliban. Last December, Hamdi's unit surrendered to the Northern Alliance. Hamdi was carrying an AK47 when detained. Hamdi was turned over to us Americans and has since been interrogated repeatedly without presence of counsel; in fact, a court-appointed public defender has never been permitted to see him. Hamdi has not been charged with a crime, nor offered any of the usual procedural rights enumerated in our constitution, such as the right to notice of the charges against him, or a speedy trial by a jury of his peers.

What makes Hamdi almost unique in contemporary America is that he was born in Louisiana and is therefore an American citizen. (There is at least one another American being held the same way, Jose Padilla, the Chicago man who converted to Islam and went to Afghanistan to study the construction of "dirty bombs".) So we have a remarkable and repellent spectacle, one which ought to be receiving a lot more attention in the press and in public discourse: a U.S. citizen who is being imprisoned indefinitely, without charges or trial, on the grounds that he is an "enemy combatant". Yet not even a "prisoner of war" entitled to procedural rights under the Hague Convention but a combatant entitled to no procedural consideration at all.

When the President announced that he would use military tribunals to try Al Quaeda members, there was a national reaction, even among some conservatives that may have led him to reconsider. The problem is that his thoughts swung in the wrong direction: if its going to cause such a fuss, why try them at all? Let's simply designate them "illegal combatants" and hold them indefinitely, pending the end of an undeclared war with no announced criteria of victory.

Fortunately for Mr. Hamdi, there is an indignant federal judge in his corner: Judge Robert Doumar, who is insisting that the government reveal why it believes Hamdi is an "enemy combatant" and exactly why it would be a security risk to allow him to see a lawyer.

Doumar had already once directed the government to justify why it was holding Hamdi and the result was a nine paragraph affidavit from someone named Michael Mobbs, a DOD "adviser" who said merely that Hamdi was "affiliated" with a Taliban unit. Doumar has now rejected this affidavit as devoid of any hard information, and is calling on the government to produce more serious proof by next Wednesday, which he will review privately so that confidentiality is not breached. ``The case represents the delicate balance that must be struck between the Executive's authority in times of armed conflict,'' Doumar wrote, ``and procedural safeguards that our Constitution provides for American citizens detained in the United States.''

For some years now, the federal government has attempted to detain legal immigrants in this country, and sometimes to try and deport them, based on secret evidence it refuses to disclose to the immigrant. Since September 11, the government has gone a step further, holding deportation hearings of Middle Eastern detainees in secret even when the evidence is not classified, barring the public, press and even the families. In cases where civil liberties attorneys have successfully forced secret evidence into the light, there has turned out not to be a great deal there, just the FBI's old Hoover-era specialties of hearsay, gossip and speculation. What is happening to Hamdi is a big step beyond--semi-permanent detention without any procedural safeguards at all, even minimal ones involving secret evidence. One imagines that in the mind of John Ashcroft and people like him, what we are dealing with is a wild-haired crazy-eyed Islamic radical from Saudi Arabia who, just when we had him comfortably categorized, threw us a curve-ball: the remarkable inconvenience of having been born in Louisiana.

Constitutional safeguards, of course, are meant to be available to all citizens, not just the ones we like. What the government has done is procedurally and morally no different than if it had arrested your next door neighbor, Frank Barber, the guy whose lawn adjourns yours, with whom you chat across the fence, and go to a barbecue at his house once a summer. Just an ordinary guy, until the feds come one day and take him away, and are holding him incommunicado, without charges or a lawyer, without any prospect of trial, on secret grounds, becuause, they say, they have information about something he has done or planned which they cannot reveal. This is the most paternalistic, big government you can imagine, and not a benign one: the government saying "Trust us", in plain adversity and apparent gross ignorance of a clearly written constitution which is supposed to govern its behavior in exactly these circumstances. Just "Trust us, we know that Frank Barber is bad, but we cannot tell you, or his wife, or his lawyer, why." A government where, in the future, our own freedoms will be based not on constitutional and legal machinery functioning in clear daylight, but on the mute trust or the wild hope that the people in government, the ones with the guns, are good and reasonable and would not throw Frank Barber in prison if they didn't have a damn good reason.

Sitting in another federal prison in Virginia, but under very different circumstances, is Zacarias Moussaoui, the alleged "twentieth hijacker". Moussaoui was arrested for immigration violations last August in Oklahoma, after officials at a flight school became suspicious of him. He has French citizenship but, unlike Hamdi the American citizen, is in the ordinary federal criminal system instead of the limbo of indefinite military detention. Moussaoui, who has chosen to represent himself, is a colorful character who writes to the judge in fractured English.

The drift of a recent missive was this: I understand vengeance killings and have no moral issue with them. So if you want to kill me to avenge the deaths of 3000 of your people, I will not argue with you. But if you are going to promise me a fair trial and the protection of my rights, then deliver on your promise. Don't use the pretext of a trial as a cover for a killing.

Moussaoui does not deny he is a member of Al Quaeda (he also calls himself a "slave of Allah"). He seems to be preparing for a defense on the grounds that, though he was a colleague of the 9/11 hijackers, he was not involved in their enterprise and did not know about it, but was here for another reason.

Of course accused men will lie to save themselves--Moussaoui, ostensibly a future suicide hijacker, seems to want to live--but Moussaoui's assertions may well be true; at least the government has failed to effectively contradict them so far. Unless the prosecutor is holding some cards close to his vest, all we know publicly about Moussaoui is that he called some of the same phone numbers Mohammed Atta did, received money from some of the same sources.

We are in the swamp of conspiracy law. Conspiracy prosecutions can occur whenever there is a group working on a common plan--it does not need to have come to fruition, but there must be some overt act which has been taken to further it. Once you have the "hook"--a plan coupled with an overt act--you can start pulling in other people based on the assertion that they each did something, however small, to advance the plan. Of course, you get bogged down in extremely subjective and subtle questions of knowledge and intent. If the plan required blue down jackets to execute, and purported conspirator Frank Barber bought five blue down jackets and gave them to the ringleader, you can pull him in. The problem is, of course, that Barber's actions, in itself, was perfectly legal. Anyone is entitled to buy as many blue down jackets as he wants and give them to whomever he wishes. It only becomes an illegal act if Barber is fully aware of the group's intention and is consciously working to bring it about.

How do you prove what Barber knew? Sometimes you can do it with wiretaps or with the testimony of an informer (who may not be trustworthy). Much of the time, you are doing it based on the jury's intuition and your ability to manipulate them: perhaps Barber wears a mohawk, or has "Born to lose" tattoed on his arm, or previously made some angry comments about the government, or whatever. So he looks like a bad guy, so therefore he must have known.

Prosecutors love something called "felony murder". If Barber bought the blue jackets and conspirators A, B and C were wearing them when they shot down a security guard--faithful twenty year employee and family man, father of five children--then Barber too is responsible for the killing, even though he wasn't there when it happened, because he conspired in a felony which resulted in a murder. This then allows prosecutors to engage in a classic act of misdirection: Barber must be guilty because what happened was terrible.

This is the freight train that Moussaoui sees bearing down upon him. The prosecutors don't seem to have any specifics about what Moussaoui was doing in the United States, other than that he was taking flying lessons. His computer, which they didn't search until after September 11, contained some information about crop dusting, a topic which also interested the 9/11 hijackers. They don't seem to have any evidence that he ever met Mohammed Atta or any of the other hijackers. They haven't announced that they have phone calls or emails or eyewitness testimony suggesting that Moussaoui planned to take over a plane and fly it into the World Trade Center. The word "conspiracy" (as articles of this kind always point out) is derived from the Latin for "breathing together". I imagine Zacarias Moussaoui and Mohammed Atta as two coral reef fish hanging over the same reef a hundred feet apart from each other. When a wave lifts one a foot or two from the coral head, it lifts the other an instant later. The feds have enough evidence certainly to prove that the two were lifted by the same wave, but that's not enough for the death penalty.

There is an idea out there that Hamdi is what you get when you add together Zacarias Moussaoi and John Walker Lindh, the American teenager who joined the Taliban. Lindh recently pled guilty and will serve twenty years or so. The prosecutors in his case were starting to be embarrassed by allegations that Lindh was kept in a state of fear and deprivation (which is torture) and interrogated, like Hamdi, without access to counsel. Since some of Lindh's early interactions with his captors were videotaped, ands Lindh appears to be malnourished, dirty, wounded and exhausted, prosecutors would likely have had a lot of explaining to do. This probably influenced them to take the plea.

If John Ashcroft's justice department cannot effectively prosecute such men without tripping over itself, it would be a natural progression in someone's thoughts to classify anyone possible as an enemy combatant and simply detain them without worrying about Miranda rights, the fourth amendment protection against unreasonable searches and seizures, the fifth amendment protection against self incrimination and guarantee of due process.

It takes a special kind of mind to think that way, of course, but John Ashcroft's is such a mind. Ashcroft is plainly one of the worst attorney generals ever, a distinction in an office which has been filled by many undistinguished hacks.

I can only imagine the meeting at which Ashcroft was chosen. George W. Bush and his associates are sitting around a table planning an administration which must span the entire Republican spectrum, from the almost-liberal to the mouth-frothing extreme right. The question becomes how to balance an administration that will include "leftist" Republicans like Colin Powell and (possibly) Tom Ridge. Clearly some post of symbolic but very limited practical importance must be thrown to the extreme right as a sop. "I know!" someone says, eyes brightening (I am not certain if W. is canny enough to be the speaker in this scenario): "Let's throw them the attorney-generalship! They can't do any harm there."

The president and his administration's extreme disregard of the Constitution and the law is the most likely explanation for the decision to place John Ashcroft at the head of the (now ironically-named) Justice Department. If the president thought that a fundamentalist at the head of Justice couldn't do any real harm, he wasn't entirely wrong. Justice is a huge machine, and its very hard to make it change direction. An interesting example of Ashcroft's ineffectuality is his announcement that henceforth the department would view the Second Amendment as guaranteeing an individual right to bear weapons. Previously, for some decades, administrations have kept silent on this issue, while a prevailing judicial viewpoint has been that the Second Amendment, at best, protects a right of the states against the federal government. The Justice Department, while enunciating its change of viewpoint in several footnotes to legal filings, has not actually concluded yet that a single gun control law is unconstitutional.

However, holding U.S. citizens indefinitely without trial is a different matter entirely, and one that could only be considered by an administration with no fundamental understanding of democratic and constitutional principles. The danger now is that democracy will leak from the system, if the people entrusted to protect it forget what it is.

The war against terrorism is a war of meanings. The attack on the World Trade Center was an attempt to deprive our lives of meaning, to illustrate that we are easily-sacrificed counters in a battle of fundamentalism against liberal democracy. Our response should be not to assert naked might but to assert it on behalf of our meaning. We are substantially at risk today of throwing away the thing we are ostensibly fighting for, without recognizing its value. The war against terrorism cannot simply be based on American nationalism--an assertion, not founded on anything but a tautology, that we are better. It should be securely founded on a belief that our system--our democracy, with its procedural safeguards, its checks and balances--is better. If this is true, we cannot simply suspend the protections we are fighting to preserve, on the inane theory that the times call for it. Nor will we get them back later if we do so. In today's world, Cincinnatus never actually returns to the farm.

In troubled times like these, while a complacent people dozes, courageous judges are our best guarantee against the administration's frightening disregard of democracy. In a case decided last week, a federal appeals court said that the government cannot hold secret deportation trials:

A true democracy is one that operates on faith - faith that government officials are forthcoming and honest, and faith that informed citizens will arrive at logical conclusions. This is a vital reciprocity that America should not discard in these troubling times.... Open proceedings, with a vigorous and scrutinizing press, serve to ensure the durability of our democracy.