During the long Cold War, our government and popular authors frightened us with tales of secret Iron Curtain prisons into which disappeared the guilty and innocent alike. There is something inherently creepy and dehumanizing about being anonymously swallowed up by a huge bureaucracy, stored away for indeterminate periods behind blank facades and razor wire. It is so loathsome we rightly stigmatize nations that do it.
We should all feel a deep dismay that our own government is engaging in just such secret arrests, something Judge Gladys Kessler of federal District Court in Washington was right to declare "odious to a democratic society." Kessler recently ordered the Bush administration to release the names of those it has detained in these circumstances since the Sept. 11 attacks.
The Bush Justice Department is fighting this order, as well as one by U.S. District Judge Robert G. Doumar in Norfolk, Virginia, in the case of an Arab-American being held as an "enemy combatant" in a Navy brig. In a scary breach of constitutional precedence, the government went so far as to ignore the judge's deadline for providing documents to support classifying American-born Yaser Esam Hamdi. Doumar wanted to privately review the government's supporting evidence.
Labeling the judge's order intrusive and unnecessary, the Justice Department declares itself above American civil liberties protections because it has itself determined Hamdi to be an enemy combatant under military law. With supreme arrogance, government lawyers assert that it would somehow violate separation of powers if they were to respond one way or the other to the judge's order.
There always are struggles for power among the three branches of government, particularly near the start of presidential administrations as new officials test old boundaries. But rarely before has the executive branch made so brazen an effort to grab new power. The administration is asserting that after it defines any American citizen as an enemy combatant, it no longer must provide that person with protections guaranteed by the Constitution. This goes far beyond normal turf battles.
The administration's arguments in favor of secret detentions, when it deigns to explain itself at all, also fail to stand up to scrutiny. Any terrorist organization capable of carrying out a sophisticated attack on the U.S. is smart enough to know that any of its members who are unaccounted for could be in American custody and may have disclosed all they know about terrorist plans, operations and procedures.
In fact, a significant percentage of secret detainees are being held on immigration violations or as material witnesses. The government actually has released the names of most detainees charged with federal crimes. The majority still being held haven't been charged and never will be. They are, by definition, innocent. And yet there they sit.
If there is some legitimate reason to keep one or more names secret, the administration has nothing to lose by justifying itself in private to a federal judge or judicial panel. This at least would provide a modicum of objectivity to an otherwise totalitarian process.
And now the Bush administration wants to study using the military to enforce laws inside the country. If the administration gets its way in making government lawyers the sole arbiters of who meets the definition of an enemy, what will stop the arrest and secret detention of any American? This Orwellian prospect would have seemed preposterous a year ago, but appears all too plausible today.
Secret detentions coupled with contempt for judicial oversight signal a tragic implosion of basic American values. The Justice Department makes a mockery of its own name, turning "justice" into ironic double-speak for doing as the administration wishes, free of the burdensome provisions of our Constitution.
This demands public dissent and discourse. The Sept. 11 attacks were a terrible crime, deserving punishment. The way to dispense real justice is to allow our time-tested systems to work - for investigators to hone in on legitimate culprits, following well-crafted criminal law procedures, along the way satisfying objective judges that our laws are being obeyed.
The fact that most detainees are Arab or Muslim should make us especially careful of their rights, not the reverse. We eventually apologized to Japanese-Americans for unjust internment during World War II, and we ought to have learned from our mistake. To remain silent as Arabs and Muslims are imprisoned without genuine legal recourse is to be complicit in a troubling hypocrisy, a fundamental distrust of the American system by American officials.
Difficult times like these test our ability to be fair, our will to stand by our own principles. Our enemies kidnap innocent hostages. Our enemies keep secrets from their own people. Our enemies exhibit contempt for the rule of law. Our enemies profess to great ideals and betray themselves.
We are Americans. Our laws and liberties are the most precious things we possess. We must treasure them, practice them, and firmly tell our government to do likewise.